October 25, 2007
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.V., G.V., AND J.V., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-291-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2007
Before Judges Winkelstein and Yannotti.
Defendant G.V. appeals from a judgment dated July 25, 2006, which terminated her parental rights to A.V., G.V., and J.V. We affirm.
The Division of Youth and Family Services is authorized by N.J.S.A. 30:4C-15.1a to seek the termination of an individual's parental rights when such relief would be in the child's "best interests." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505-06 (2004). "The grounds for termination of parental rights are codified in subsections (1) through (4) of N.J.S.A. 30:4C-15.1a, and are designed to balance parental rights and the State's parens patriae responsibility to protect the welfare of children." Id. at 506 (citing In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999)).
Parental rights may be terminated when the Division establishes by clear and convincing evidence the following criteria:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
The criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., supra, 161 N.J. at 348.
The scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. of Am. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). The trial court's findings "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.
Here, G.V. concedes that the first prong of the "best interests" test was established by clear and convincing evidence. She argues that the judge erred in finding that the Division met its evidentiary burden in establishing the other three prongs. In addition, G.V. contends that the judge erred by finding irrelevant her claim that the Division's case manager was biased and the case manager's bias affected the Division's decision to seek termination of parental rights rather than reunification with the children. G.V. also alleges that she was denied the effective assistance of trial counsel.
We are convinced from our thorough review of the record that that these contentions are entirely without merit. We therefore affirm the order terminating G.V.'s parental rights to A.V., G.V. and J.V. substantially for the reasons stated by Judge Salvatore Bovino in the decision that he placed on the record on July 25, 2006. R. 2:11-3(e)(1)(A)(E). We add the following comments on G.V.'s claim that she was denied the effective assistance of trial counsel.
When an action is brought seeking the termination of an individual's parental rights, the respondent parent has both a constitutional and statutory right to be represented by an attorney. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006); N.J.S.A. 30:4C-15.4a). "Either way the performance of that counsel must be effective." Ibid. (citing V.F. v. State, 666 P.2d 42, 45 (Alaska 1983); In re Trowbridge, 401 N.W.2d 65, 66 (Mich. Ct. App. 1986); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); State ex rel. E.H., 880 P.2d 11, 13 (Utah Ct. App. 1994)). In B.R., the Court held that the test for determining whether a parent in a termination case has been denied the effective assistance of counsel is the two-part test established for criminal matters by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), as the New Jersey standard in criminal cases. B.R., supra, 192 N.J. at 307-09.
Therefore, in order to establish that counsel was ineffective, the parent in an action seeking termination of parental rights first must establish that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To do so, the parent must show that counsel's "identified acts and omissions were outside the wide range of professionally competent assistance." Id. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. In determining whether counsel's performance was deficient, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. [Ibid.]
Second, the parent must establish that counsel's "deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To establish prejudice, the parent must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698.]
The Court in B.R. held that a claim of ineffective assistance of counsel in a termination case should be raised on direct appeal. B.R., supra, 192 N.J. at 311. "[A]ppellate 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." Ibid. In some cases, the appellate record may provide a basis for resolving the claim. Ibid. However, if there is a genuine issue of fact that must be resolved, the court should remand the matter for resolution by the trial judge prior to rendering a full opinion on the appeal. Ibid.
G.V. contends that evidence presented at trial established that the Division's case manager was biased against her. She alleges her attorney failed to elicit testimony on how the case manager's alleged bias affected the Division's decision to change its objective from reunification to termination of her parental rights.
The following facts inform our decision on this issue. At trial, the case manager testified that A.V. had reported to her that G.V. brought a male with her for a visit. The case manager stated that she had an "interaction with this male on a business level some time in the past[.]" A.V. told the case manager that "the male had a friend that knew [the case manager] and had [her] on videotape doing a porno and that they were going to show the porno to the [c]court[.]"
G.V.'s attorney objected to this testimony because it was hearsay and there was no reference to these remarks in the Division's case reports. G.V.'s counsel also argued that the testimony was improper because she could not confront the children regarding these statements. The judge overruled the objection, stating that the "ultimate value of those statements remains to be seen." The judge noted, however, that the case "really deals with [G.V.'s] fitness and ability to parent the children."
On cross-examination, the case manager was asked by G.V.'s attorney why she did not record the statements in the case reports. The case manager responded, "Because at the time it was a personal attack against me." She added that she still considered it a personal attack but believed it was evidence of the inappropriate statements that G.V. made to the children.
In his decision, the trial judge briefly summarized the case manager's testimony, noting that there was "some personality problem" between the case manager and G.V. However, the judge found that this "problem" did not have an impact upon the Division's application for termination of parental rights. The judge observed that the case manager had reported that G.V. had been "telling [the child] things[.]" However, the judge placed no weight on that aspect of the case manager's testimony in deciding whether G.V.'s parental rights should be terminated.
G.V. argues that trial counsel should have "ascertained whether or not [the case manager] regularly allowed herself to be videotaped in a pornographic manner in order to determine [whether] her lack of judgment regarding being taped in such a manner also carried over into a lack of judgment regarding her [Division] duties." G.V. asserts that any bias on the case manager's part would "certainly" have had a negative impact on her case. G.V. contends that if her trial counsel had cross examined the case manager regarding the statements made about her, the result of the proceeding would have had a "very different outcome."
We are convinced that G.V.'s claim of ineffective assistance may be resolved based on the appellate record and a remand for additional fact-finding is not required. We are additionally convinced that G.V.'s trial counsel did not err in failing to question the case manager along the lines that G.V. suggests.
We note that the comments about the videotape were apparently made by an individual to G.V.'s male friend, and then conveyed to the case manager by one of the children. This triple hearsay did not provide a proper foundation for the line of questioning G.V. says her trial counsel should have pursued. In addition, had counsel endeavored to ask these questions, the judge could have exercised his discretion and barred the questions by invoking N.J.R.E. 403.
Furthermore, the judge's decision in this matter turned upon his assessment of G.V.'s past conduct and the expert testimony as to whether the children would be at risk if they were returned to her care. Because there was clear and convincing testimony on all of the prongs of the "best interests" test, further evidence regarding the alleged videotape and the case manager's purported bias would not have led to a different result. Therefore, we conclude that G.V. was not denied the effective assistance of trial counsel in this matter.
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