September 27, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF L.N. AND R.N., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-266-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Defendant T.N. appeals from a judgment entered on October 25, 2006 terminating her parental rights to two of her biological children, L.N., now eight years old, and R.N., now seven years old.
The following is a brief summary of the more extensive record in the case. The Division of Youth and Family Services (DYFS) first became involved with defendant's children when her oldest child was born multiply handicapped. That child was ultimately placed in a residential facility where he remains today. DYFS has legal custody of that child and he is not a subject of this appeal.
When L.N. and R.N. were born, defendant was living with her mother, M.N., who had been under periodic DYFS supervision during defendant's formative years. Both M.N. and defendant were referred for evaluations in March 2000. Albert Griffith, Ed.D., who did the evaluations, reported that M.N. functions between borderline and low level I.Q. and has a retarded level of social judgment and low average social sensitivity.
Dr. Griffith determined that defendant had poor insight and appeared to be functioning in the retarded to low average I.Q. range. He indicated that due to her limited verbal skills, limited intellectual ability and behavioral issues, a multiply-handicapped child would be at risk in her custody. Defendant's care of L.N. and R.N. was inadequate. In December 2003, DYFS received a report that L.N. had been sexually abused by defendant's boyfriend. The sexual abuse was substantiated when a medical examination indicated that the child had contracted a sexually transmitted disease (STD). The child was returned to defendant's care, however, with a recommendation for a parenting aide, counseling and a referral for new psychological evaluations of defendant.
In April 2004, DYFS received a report from the Headstart program that the children were not in school that day. When a caseworker visited the home, she was unable to locate defendant and the children. At the same time, it was reported that both children had scabies. A DYFS investigation found that defendant was shuttling between two apartments with the children. The living conditions in both apartments were described as filthy.
At that point, defendant signed a fifteen-day consent for placement. When the children were removed, they were taken to the hospital for examination and it was noted that L.N.'s penis still had bruises and marks four months after the initial finding of sexual abuse, suggesting further abuse after the initial substantiation. The children were placed in foster care and DYFS established a plan for reunification once defendant had undergone parenting skills, training and psychological evaluation. Defendant completed parenting classes at Essex County College on March 15, 2005. A report from the college, however, indicated that defendant had a "real difficult time managing and controlling her two sons." The report further indicated that defendant was unable to have the children listen to her and would need more services to gain such ability.
In June 2004, defendant was further evaluated. The report noted that she was anxious, pessimistic and depressed, had low frustration tolerance, poor impulse control and became emotional when frustrated. She manifested a very high potential to physically abuse the children. Her mental health, as well as her limitations, led to the conclusion that the children would be at significant risk if they remained in her care.
In August 2004, L.N. was evaluated by the Child Study Team and found to have significant developmental delays and behavioral issues. It was determined that he was cognitively impaired and had an I.Q. of fifty-eight. He was diagnosed with attention deficit hyperactivity disorder (ADHD). He was referred to the Regional Child Abuse Diagnostic and Treatment Center for psychological evaluation. He reported that his mother's boyfriend had abused not only him, but his brother. R.N. was evaluated for sexual abuse in January 2005 and it was determined that there was possible sexual abuse, a history of medical neglect and aggressive behavior.
While the children were in foster care, defendant's visits with them were "sporadic." She repeatedly cancelled visits and did not reschedule them. When defendant did visit with the children, she was not able to control them and the caseworker had to intervene.
After hearing all of the testimony, the trial judge rendered a decision on the record in which he gave a detailed finding of facts and evaluated each of the four factors articulated in Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1a. The court concluded that DYFS had demonstrated each of the four factors by clear and convincing evidence and terminated defendant's parental rights.
In this appeal, defendant argues:
POINT ONE DYFS FAILED TO MEET ITS BURDEN OF ESTABLISHING, BY CLEAR AND CONVINCING EVIDENCE, THE TEST FOR TERMINATION OF PARENTAL RIGHTS AND, THEREFORE, THE TRIAL COURT IMPROPERLY TERMINATED T.N.'S PARENTAL RIGHTS
A. Precedent requires that this Court reverse a trial court's decision where the conclusions reached by the trial judge are so inconsistent with the competent, relevant, and reasonably credible evidence that the interests of justice have been violated
B. The judge's findings of fact with respect to the first prong of N.J.S.A. 30:4C-15.1a are not supported by relevant, credible, competent evidence
C. This Court should hold that Prong Two was not satisfied here, as DYFS failed to carry its burden with respect to this prong, and the facts found by the trial judge were not supported by clear and convincing evidence
D. DYFS failed to satisfy its burden with respect to Prong Three and, therefore, the trial judge's decision to terminate T.N.'s parental rights was erroneous
E. DYFS failed to satisfy its burden with respect to Prong Four and, therefore, the trial judge's decision to terminate T.N.'s parental rights was erroneous
POINT TWO T.N. WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS A RESULT OF HER ATTORNEY'S FAILURE TO FULLY CROSS-EXAMINE THE STATE'S WITNESS
We have carefully considered defendant's Point One arguments in light of the applicable law, and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge John Callahan rendered a detailed and carefully considered decision, which is fully supported by the evidence. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons set forth by Judge Callahan on the record of October 25, 2006.
In her second point, defendant argues that she was denied effective assistance of counsel pursuant to our decision in Div. of Youth and Family Serv. v. B.H., 391 N.J. Super. 322, 346-47 (App. Div. 2007) (holding that the Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063-64, 80 L.Ed. 2d 674, 692 (1984), standard for determining ineffective assistance of counsel in a criminal case shall be applied to a claim of ineffective assistance in a termination of parental rights case).
Since B.H. was decided in March 2007, however, our Supreme Court decided Div. of Youth and Family Serv. v. B.R., ___ N.J. ___ (decided July 25, 2007). In B.R., Justice Long, writing for the Court, agreed that "the right to counsel in a termination case has constitutional as well as statutory bases," and followed the majority of other state courts in adopting the Strickland standard. Id. at ___.
Our Supreme Court noted that Strickland articulated a two-part test for establishing ineffectiveness of counsel: (1) counsel's performance must be objectively deficient - i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense - i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [B.R., supra, ___ N.J. at ___ quoting Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.]
The Court then set forth the procedure by which a defendant whose parental rights have been terminated should proceed on an ineffective assistance of counsel claim:
[W]e direct that claims of ineffective assistance of counsel in termination cases be raised on direct appeal.
As a practical matter, the appeal must be filed by an attorney other than trial counsel. Further, appellate counsel must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.
In many cases, the issue will be resolvable on the appeal record alone. For example, if the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed, that will be the end of it. However, in some cases, a genuine issue of fact may require resolution. In such instances, the panel should, in advance of rendering a full opinion, remand the case to the trial judge for an accelerated hearing (to be completed in no more than fourteen days) followed promptly by an oral decision on the record. The parties should then be permitted simultaneously to exchange supplemental appellate briefs within seven days. Thereafter, the Appellate Division should render an opinion on all issues, including the effectiveness of counsel, as expeditiously as possible. [Id. at ____].
Although the procedures for pursuing an ineffective assistance claim were developed by the Court well after the trial in this matter, the Strickland standard - which defendant argues should apply - has been utilized in New Jersey since the Supreme Court adopted it in State v. Fritz, 105 N.J. 42 (1987). Defendant claims that trial counsel was ineffective in: (1) failing to cross-examine the DYFS caseworker, Hugh Brown, on the issue of defendant's visitation with the children; (2) failure to call any witnesses to testify on defendant's behalf; and (3) failure to challenge DYFS's initial removal of the children from her custody.
On direct examination, Brown was questioned about defendant's visits with the children. Defendant's counsel objected to Brown's testimony that defendant always brought a family member or friend to the visits because the visitation notes did not support that. The trial court did not rule on the objection, saying, "we'll work that out later." Counsel did not raise the issue again on cross-examination, however. We do not find counsel's failure to raise the issue on cross-examination is "objectively deficient." B.R., supra, ___ N.J. at ___. Indeed, Brown's uncontradicted testimony regarding defendant's poor performance during the visits may well have led counsel to avoid raising the issue again on cross-examination. Irrespective of the reason defense counsel declined to cross-examine Brown on the issue, we do not find that this issue rises to the level of ineffective assistance of counsel.
Defendant does not offer the names of any potential witnesses, or a proffer of testimony for any witness that may have been called. Finally, since defendant initially consented to the removal of the children from her custody, she cannot now complain that trial counsel failed to challenge the initial removal.
In short, we find no merit in defendant's claims of ineffective assistance of counsel.
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