October 3, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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In an unpublished opinion rendered on March 5, 2007, we affirmed the trial court's termination of the parental rights of defendant G.M. to his daughter M.M. New Jersey Div.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).
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 factors set forth in N.J.S.A. 30:4C-15.1(a), Judge Cohen never referred to that report, nor did he rely upon it, even in small part, as a basis for terminating G.M.'s parental rights.
Moreover, we agree with DYFS's argument that the record contained unrebutted reports of psychological experts who evaluated G.M. on behalf of DYFS, all of whom emphatically opined that G.M. should not have any contact with M.M. We need not belabor the record with a complete recitation of all of that testimony. Suffice it to say, however, that the September 27, 2001 report of Dr. Anthony D'Urso and his team at the Audrey Hepburn Children's House at Hackensack University Medical Center concluded that G.M.'s psychological profile, based on a battery of psychological tests, demonstrated that G.M. is prone to acting out, sometimes impetuously, and that he had a low frustration tolerance. D'Urso testified that G.M.'s responses were "reflective of adults who are prone towards abuse potential." D'Urso's interviews with all five children caused him to conclude that there was "clinical validation" of physical abuse against all four of A.F.M.'s daughters, and a consistent pattern of "compulsive and rageful behavior" by G.M. In that September 27, 2001 report, admitted into evidence, the team opined that G.M.'s plans for permanency and reunification with M.M. were so vague and evasive, and his behavioral patterns so threatened the well-being of his daughter, that all plans for reuniting G.M. with M.M. should cease.
In the spring of 2004, after DYFS had decided to seek termination of G.M.'s parental rights, DYFS arranged for D'Urso and his team to evaluate both parents again. The test results were unchanged from those described by the team nearly three years earlier. Again, D'Urso described G.M.'s hostility, antagonism and indifference to the rights of others, ultimately concluding that G.M. had made "no substantive gains" in his parenting ability despite the years of services provided to him. The team concluded that termination of G.M.'s parental rights was warranted.
Judge Cohen also relied on the results of the bonding evaluation in which Ernesto Perdomo, Ph.D., concluded that G.M. was "unable to provide a safe and stable home environment [for M.M] and the prognosis for successful family reunification is very poor."
In addition to relying on those expert opinions, Judge Cohen concluded that G.M.'s "flat denial" of the allegations that he abused A.F.M. or any of the children was not credible and was against the overwhelming weight of the evidence. Under these circumstances, we agree with DYFS that the voluminous record contained ample evidence to justify the termination of G.M.'s parental rights, and that the same result would have been reached whether G.M.'s trial counsel submitted Dr. Williams's report or not. Stated differently, even if we were to conclude that the furnishing of Williams's report by G.M.'s trial counsel to DYFS was objectively unreasonable, we conclude that such conduct was not material and did not affect the ultimate result.
As to G.M.'s claim that his trial attorney deviated from acceptable professional standards because he never sought an updated psychological evaluation of G.M., we observe that G.M. has presented no report on appeal to justify his claim that an updated psychological evaluation would have been favorable had he sought one. A party claiming ineffective assistance of counsel is prohibited from baldly asserting that trial counsel was deficient for failure to pursue particular evidence. Instead, if a party wishes to advance such argument, he is required to produce on appeal the very evidence that he claims should have been presented at trial by his lawyer. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Such evidence should be presented in the form of affidavits, certifications or reports to demonstrate that the results would have been favorable to the defendant had counsel undertaken such investigation. Ibid. Here, G.M.'s failure to present on appeal a favorable psychological report, as required by Cummings, compels us to reject his argument that counsel's performance was deficient.
Finally, G.M. argues that counsel's performance was unreasonable because he failed to file any motions seeking the reinstatement of G.M.'s visitation with M.M. during the fifteen-month period that the proceedings were inactive. In our opinion, we agreed with G.M. that the trial court, DYFS and all counsel bore some responsibility for that unfortunate hiatus.
New Jersey Div. of Youth & Family Servs. v. G.M., No. A-6361-04T4 (App. Div. March 5, 2007)(slip op. at 31). We conclude, however, that in light of the evidence in the record, it is highly unlikely that the court would have agreed to reinstate G.M.'s visitation, even if counsel had filed such motion. There is nothing in the record to demonstrate that during that fifteen-month period, G.M. had suddenly resolved all of the problems that existed previously and that he had suddenly become a fit parent. For these reasons, we reject his argument that trial counsel was ineffective because he failed to seek a resumption of G.M.'s visitation.
In sum, after a careful review of the record, we conclude that G.M.'s claim of ineffective assistance of counsel lacks merit. There is no basis upon which to remand this matter for an evidentiary hearing on that claim.