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New Jersey Division of Youth and Family Services v. G.M.

October 3, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
G.M. AND A.F.M, DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF M.M. AND C.R., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-103-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2007

Decided March 5, 2007 Remanded by Supreme Court on July 25, 2007 Resubmitted on July 25, 2007

Before Judges Cuff, Winkelstein and Baxter.

In an unpublished opinion rendered on March 5, 2007, we affirmed the trial court's termination of the parental rights of defendant G.M. to his daughter M.M. New Jersey Div. of Youth & Family Servs. v. G.M., No. A-6361-04 (App. Div. March 5, 2007).*fn1

We further held, relying on Rule 2:11-3(e)(1)(E), that G.M.'s claim that he received ineffective assistance of counsel lacked sufficient merit to warrant discussion in a written opinion. New Jersey Div. of Youth & Family Servs. v. G.M., No. A-6361-04 (App. Div. March 5, 2007)(slip op. at 33). Thereafter, G.M. filed a petition for certification, and on July 25, 2007, the Court summarily remanded the matter to us for reconsideration in light of its opinion in New Jersey Div. of Youth & Family Servs. v. B.R., ___ N.J. ___ (2007).

I.

In B.R., supra, ___ N.J. at ___ (slip op. at 4-6), the Court held that when a parent is the subject of a proceeding in which the Division of Youth and Family Services (DYFS) seeks the termination of parental rights, the parent is entitled to effective assistance of counsel. This right is founded on both the due process guarantee of the New Jersey Constitution, Article I, paragraph 1 and N.J.S.A. 30:C-15.4(a). Ibid.

The Court further held that the appropriate measure for determining whether counsel provided effective assistance is the criminal standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). B.R., supra, ___ N.J. at ___ (slip op. at 9). Strickland establishes a two-part test for resolving claims of ineffective assistance of counsel. A defendant has the burden of proving that (1) counsel's representation was objectively deficient in that it fell outside the broad range of professionally acceptable performance; and (2) there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 697. A strong presumption exists that counsel's performance was reasonable. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. at 694-95.

On remand, G.M. argues that he was denied effective assistance of counsel because his attorney (1) submitted a psychological evaluation of him to DYFS that was harmful to his interests, which DYFS later relied upon to seek continued suspension of his visitation with M.M.; (2) never sought an updated psychological evaluation of him; and (3) allowed the suspension of G.M.'s visitation with M.M. to continue without filing any motions to the trial court or to this court seeking resumption of that visitation. We review those claims in that sequence.

On October 25, 2000, Dr. Daniel E. Williams conducted a psychological evaluation of G.M. at defense counsel's request. Dr. Williams reported that G.M. "does not exhibit the capacity to regulate and/or channel his impulses into . . . socially acceptable forms of expression [thereby making him] more vulnerable to emotional upheaval." He concluded that the "clinical evidence" and the tests administered to G.M. reveal that G.M. has the capacity to "act out" his "hostile and aggressive impulses very directly against those whom [he] perceive[s] as either threatening or frustrating [him] in some way." Williams's report recommended that G.M.'s visits with M.M. continue to be suspended. According to defendant, the report was unfavorable, and counsel's unprofessional error in furnishing that report to DYFS, the opposing party in the litigation, contributed to a further suspension of his visitation.

We need not decide whether counsel's decision to provide the unfavorable report to DYFS was objectively unreasonable because we conclude that G.M. has failed to satisfy the second prong of the Strickland test. In particular, there is no causal relationship between his counsel's conduct and the termination of G.M.'s parental rights. Judge Cohen made numerous and detailed findings of fact when he terminated G.M.'s parental rights. His summary of the record covers eighty-five transcript pages. The judge did refer to Dr. Williams's unfavorable October 27, 2000 report in the course of that lengthy summary of the evidence presented; however, in his ultimate findings of fact and analysis of the four statutory ...


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