December 20, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
A.M.R., DEFENDANT-APPELLANT, AND D.W.B., DEFENDANT-RESPONDENT.
IN THE MATTER OF L.B., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Part, Family Division, Ocean County, Docket No. FN-15-121-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Payne, Baxter and Koblitz.
A.M.R. (hereinafter, mother) appeals from an order entered in the Family Part terminating Title 9 litigation instituted by the New Jersey Division of Youth and Family Services (DYFS) alleging abuse and neglect of L.B., a minor; determining that the child should remain in the legal and physical custody of her father, D.W.B. (hereinafter, father); and denying the mother's motion to suspend judgment pursuant to N.J.S.A. 9:6-8.52. On appeal, the mother makes the following arguments:
THE TRIAL COURT'S ORDER GRANTING LEGAL AND PHYSICAL CUSTODY OF THE CHILD AT ISSUE TO THE FATHER, ENTERED LESS THAN ONE MONTH AFTER DYFS HAD BEEN GRANTED TEMPORARY LEGAL AND PHYSICAL CUSTODY OF THAT CHILD ON AN EMERGENT BASIS, DENIED THE MOTHER THE DUE PROCESS RIGHTS ATTENDANT TO HER CONSTITUTIONAL RIGHT TO THE CARE AND CUSTODY OF HER CHILD.
THE MOTHER'S TRIAL COUNSEL'S REPRESENTATION AT NUMEROUS CRITICAL STAGES IN THE TRIAL COURT PROCEEDINGS FELL BELOW ANY OBJECTIVELY REASONABLE STANDARD OF PERFORMANCE AND PREJUDICED THE MOTHER SO AS TO DEPRIVE HER OF THE CONSTITUTIONAL RIGHT TO BE REPRESENTED BY COUNSEL.
THE PURPORTED "COMBINED" SUSPENDED JUDGMENT/DISPOSITIONAL HEARING ON SEPTEMBER 17, 2009 WAS FOCUSED ENTIRELY ON THE MOTHER'S MOTION FOR SUSPENDED JUDGMENT, LACKED ANY EVIDENCE OR TESTIMONY WHATSOEVER, AND WAS OTHERWISE PROCEDURALLY AND SUBSTANTIVELY INSUFFICIENT FOR DISPOSITIONAL PURPOSES.
We affirm in part and reverse in part.
The record reveals that the mother gave birth to a daughter, L.B., on March 23, 2007. On December 15, 2009, the mother left L.B., then twenty-one months of age, in the custody of her paramour, B.D., a known heroin addict. While in his care, the child sustained significant bruising to her face and buttocks. Upon the mother's return, she did not seek medical care for L.B. On the following day, however, her condition was seen by employees of the daycare center where the mother worked. When questioned, the mother stated that the child's bruising occurred while she was in the care of her father, a statement that she later retracted and was demonstrated to be untrue.
DYFS was informed of the child's injuries, responded to the scene, and took the child to Jersey Shore Medical Center, where she was examined and treated by Dr. Steven Kairys. The mother declined to accompany her daughter to the hospital, yelling and cursing at the DYFS workers for taking the child for treatment.
Dr. Kairys observed a large bruise around the child's left eye, covering the cheek in the area lateral to the eye, with several small lacerations and breaks in the skin to that side. He also observed a smaller bruise on the right eye, a laceration to the inner lip, and a number of bruises to the face on both sides, particularly on the left. Additionally, the doctor observed that a large area of both buttocks manifested blue and red bruising, with linear marks on the left buttock extending down toward the anus, and some bruising extending up into the lower back. Dr. Kairys concluded that the injuries to the child's face could have happened as the result of falling down steps. However, he determined that the buttock injuries were clearly not accidental; they were inflicted in the course of "a somewhat violent assault with an open hand."
B.D. subsequently confessed to inflicting the injuries to the child's buttocks, claiming that he was irritable as the result of the need to abstain from heroin while baby-sitting, and that the punishment was inflicted when the child tried to descend the stairs after previously falling down them. Later that night, B.D. overdosed on ten bags of heroin.
L.B. was removed by DYFS on an emergent basis from the custody of her mother, pursuant to N.J.S.A. 9:6-8.29, and placed with her father.
On December 18, 2008, DYFS filed a verified complaint and order to show cause, pursuant to N.J.S.A. 9:6-8.30b. A hearing was held that day in the matter pursuant to N.J.S.A. 9:6-8.31. At its conclusion, the judge ordered that legal custody of the child be given to DYFS and that placement with the father be continued. The mother was permitted to have supervised visitation with her daughter and was ordered to continue out-patient substance abuse treatment, provide random urine samples, and to obtain weekly individual counseling to address mental health and domestic violence issues. Random urinalysis was also ordered for the father.
At the hearing, it was disclosed that the father had a prior history of domestic violence in December 2007, and that a final restraining order had been entered against him, prohibiting his contact with the mother. However, in sworn testimony, the father confirmed that he had undergone substance abuse and psychological evaluations, he had completed intensive out-patient drug treatment on May 5, 2008 and aftercare in August 2008, and he had undergone individual counseling by a psychiatrist. He was presently enrolled in parenting class and was to commence anger management shortly after Christmas. Additionally, the father occasionally attended Alcoholics Anonymous. Although the father was presently living with his mother in age-restricted housing, he was willing to seek subsidized alternative housing. The father was employed and was paying child support to the mother. According to DYFS, it was comfortable with placing L.B. with her father, "as long as the father remains with the grandmother and remains in his current program."
Sworn testimony was also provided by the mother, who expressed her concern about L.B. staying with her father on an unsupervised basis, claiming that she frequently returned from his care with bruises. Additionally, she alleged that the father did not feed L.B. properly and, when the mother expressed her concerns to the father, he yelled at her and her mother, the infant's maternal grandmother. However, caseworker Jillian Oney gave sworn testimony*fn1 that the only complaint by the mother regarding bruising was so delayed that the allegations could not be evaluated, that she had not personally observed bruising when visiting the child while in the care of the father, and that
L.B.'s daycare had not expressed any concerns. Additionally, the judge viewed photographs of L.B.'s injuries and the report of Dr. Kairys, both of which were marked in evidence.
A hearing on the order to show cause took place on January 20, 2009, at which time the mother moved pursuant to N.J.S.A. 9:6-8.32 for her daughter's return. The motion was opposed by DYFS, which disclosed that the mother knew that B.D. was using heroin and had been warned not to leave the child with him, but she did so anyway. It was also opposed by the Law Guardian, who noted that the mother had not completed substance abuse treatment or individual counseling and had not commenced parenting classes. Additionally, she had tested positive for alcohol on January 2. In support of the motion, counsel for the mother claimed that the mother had been compliant with services, including parenting classes and counseling, and that she had ended her relationship with B.D.
At the conclusion of the hearing, the judge determined that, as the result of the severity of the child's injuries and the early stage of compliance with services, he would maintain the current placement, while recognizing that the ultimate goal was reunification. However, because the father had not been able to enroll in anger management classes, the judge ordered that the father's custody of L.B. continue to be supervised by the paternal grandmother.
A fact-finding hearing was commenced on May 29, 2009. At the commencement of the hearing, the mother sought to stipulate to neglect of her daughter. However, after hearing testimony from the mother that minimized her culpability, the judge rejected the stipulation as insufficient. He thus proceeded with the hearing, commencing with the testimony of Kelly Sherman, the DYFS investigator who responded to the December 16 referral, who testified in accordance with the factual summary that we have previously provided and stated that neglect of the child by the mother had been substantiated by DYFS. Additionally, her report and color photographs of the child's injuries were marked into evidence.
Sherman's testimony was followed by that of Jillian Oney, the DYFS permanency worker assigned to the matter who had also responded to the referral. Oney testified that, approximately one month before the incident at issue, she had orally advised the mother not to leave her daughter with B.D. because of his use of heroin. Additionally, Oney testified that, during the prior summer, an order to show cause for care and supervision had been issued concerning the mother,*fn2 and at that time, she had been informed that only her parents were permitted to supervise the child. She also testified that she had confirmed that the father was attending a parenting class at the time that the child's injuries were inflicted, and that the mother's initial claim that the injuries had been inflicted by the father was false.
At the conclusion on the DYFS workers' testimony, the State rested. However, counsel for the mother indicated that he wished to call Dr. Kairys as a witness, and a further hearing was scheduled for August 13, 2009. When called as a witness, the doctor recited his observations regarding the child and his conclusion that the injuries to the buttocks were not accidental. On cross-examination, it was established that the doctor regarded the injuries to have been sufficient to require emergency medical care.
Following the hearing, the judge entered a finding of abuse and neglect based on the serious injuries to L.B. that resulted when she was left with the mother's paramour, B.D. However, he did not enter an order at the time, so as to permit the mother to demonstrate why she should be eligible for a suspended judgment under standards established in New Jersey Division of Youth & Family Services v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006). The judge stated: so we will continue this hearing. We will also join the issue at the continued hearing as to whether or not custody should be maintained with the current caretaker. That will be a dispositional hearing . . . .
A hearing on the mother's request for a suspended judgment pursuant to N.J.S.A. 9:6-8.52 took place as a component of the dispositional hearing, conducted pursuant to N.J.S.A. 9:6-8.51 on September 17, 2009 to determine the appropriate outcome of the case. Although the hearing was non-testimonial in nature, the parties were afforded the opportunity to file pre-hearing submissions. Additionally, in reaching his decision in the matter, the judge relied extensively on testimony and evidence that had been adduced at the fact-finding hearing one month earlier. Notably, in arguing for a suspended sentence, counsel for the mother argued only that, if inclusion of the mother on the DYFS Central Child Abuse Registry pursuant to N.J.S.A. 9:6-8.11 could be avoided by a suspended judgment, such a result might avoid termination of the mother's present employment as a daycare worker and afford her greater employment flexibility in the future,*fn3 but that relief through a suspended judgment would be moot if inclusion on the registry were still required.*fn4
Defense counsel did not contest evidence of the child's injuries or statements by and on behalf of DYFS indicating the mother's lack of remorse, her continued relationship with B.D., and her lack of compliance with proffered substance abuse and counseling services. Both DYFS and the father opposed a suspended judgment and, upon learning that the mother would not lose her employment as a daycare worker because her employer did not condition employment on absence from the central registry, their position was joined by the Law Guardian, who had previously supported the relief sought by the mother.
Upon conclusion of the hearing, the judge determined not to enter a suspended judgment, finding a substantial history of prior referrals, many of which were unfounded, but one of which resulted in the filing of a verified complaint and order to show cause in July 2008 as the result of the mother's failure to comply with the recommendations of DYFS. While the present complaint arose out of injuries to the daughter that were not inflicted by the mother, the judge noted that the mother had left the child with her drug-addicted paramour despite warnings that she should not do so. Further, she did not seek medical attention for the child upon observing her injuries, and she continued her relationship with the child's abuser. Moreover, at the outset, the mother sought to deflect blame from the abuser by attributing the injuries to conduct by the father.
The judge additionally found that the mother had not exhibited remorse for the incident, but instead, insisted that she had done nothing wrong, and her compliance with court-ordered services had been "minimal to nonexistent." As a final matter, the judge found that because the mother's employer did not refer to the central registry when making employment decisions, the mother's placement on that registry did not constitute a relevant concern.
In considering the proper disposition of the child, the judge stated:
I understand [the mother's counsel's] position is that he would like a full-blown custody hearing including calling therapists; however, this court does not feel that . . . [New Jersey Division of Youth & Family Services v.]G.M.[, 198 N.J. 382 (2009)] dictates that that type of a hearing is necessary.
This court has been privy to all of the details of this case from day one. There is nothing that would be presented to this court that is not already before this court in voluminous detail. It is clear to the court at this time that it would not be appropriate to place this child with the mother. If this were a custody hearing, the court would determine that custody should remain with the father, that the mother would have the obligation to come forward and convince this court that there has been a change in circumstances to justify transfer of custody to her and that is not even a remote possibility under the facts of this case at this time; therefore, the court is going to not only deny the defendant's motion for a suspended judgment but deny the motion for an extended custody hearing under G.M. and will grant the Division's motion to dismiss this matter as to all parties.
This appeal followed.
In Points I and III of her brief, the mother challenges the procedures utilized in resolving this Title Nine action, claiming that they deprived her of due process in a fashion similar to that which occurred in New Jersey Division of Youth & Family Services v. G.M., 198 N.J. 382 (2009). We disagree.
In G.M., following a dispute between thirteen-year-old Kadina and her mother, Gloria, Kadina and her eleven-year-old brother Curtis were removed on an emergent basis from the mother's custody in New Jersey. Id. at 388-89. Following an emergency hearing, the trial judge found potential abuse or neglect as the result of the mother's consumption of alcohol, and he awarded legal custody of the children to DYFS with physical custody awarded to their father, who lived in Florida. The mother was ordered to undergo a substance abuse evaluation and was permitted reasonable visitation. Id. at 389. Thereafter, a fact-finding hearing was held, but the litigation was terminated before a dispositional hearing took place. Id. at 391-93. Further, before the litigation was terminated, the mother was led to believe that custody of the children would be returned to her. Id. at 392. On the day that the case was terminated, DYFS reversed its position and, in accordance with the children's alleged wishes, sought retention of custody by the father. Id. at 393. The mother was not given the opportunity to meet this new position, but instead, following a proceeding in which no testimony was taken, no documents were introduced into evidence, and no fact finding was undertaken, the court ordered that the parents share joint legal custody of the two children, with the father being the primary custodial parent and the mother receiving parenting time. Any change in custody was ordered to proceed through the matrimonial docket. Ibid.
On appeal, the Supreme Court held that, as the result of the judge's failure to hold a dispositional hearing or afford the mother the opportunity to address DYFS's change of position with respect to custody, the mother had been deprived of her due process rights. Id. at 401-02.
In the present appeal, the mother claims to have been similarly deprived of her rights, commencing with the emergency hearing conducted on December 18, 2008, during which, she claims, "DYFS presented no evidence whatsoever and was allowed to present two unsworn fact witnesses. Numerous references were made during that hearing to Dr. Kairys' findings concerning [the child's] injuries that led to her removal, but the report of those findings, although marked for identification, was not offered or moved into evidence and Dr. Kairys was not offered as a witness to be cross-examined by the mother concerning his findings."
Our review of the record leads us to conclude that the mother is mistaken in her allegations. At the hearing, sworn testimony was offered by the mother, the father, and DYFS worker Oney, although as noted, an oath was not administered to Oney initially, but only after her testimony was in progress, at which time she attested to the truth of her prior statements. The only unsworn testimony offered was by the paternal grandmother, who was questioned whether she was permitted by the rules of her age-restricted living facility to take long-term custody of a child, and she responded that she was uncertain. Further, the record reflects that color photographs of the child's injuries and the report of Dr. Kairys were marked into evidence. As a consequence, we find that sufficient evidence was introduced to provide a proper foundation for the judge's conclusion that emergent removal was necessary as the result of imminent danger to L.B.'s life, safety and health, for entry of an order making the child a ward of the court and placing her in the immediate custody, care and supervision of DYFS, and for the temporary placement of L.B. with her father, under the supervision of the parental grandmother.
The mother next complains that legal custody of the child was transferred to the father at the hearing on the order to show cause on January 20, 2009 without prior notice to her that a change in legal custody from DYFS to the father would be effected. Although the mother is correct that the judge's January 20 order transfers legal custody of the child to the father, that fact is not reflected in the transcript, in which the judge states only that he "is going to maintain the current placement" while stressing that the placement is temporary and that the goal remained reunification. In these circumstances, we conclude that the judge's oral pronouncement was controlling, and that the written order simply constituted a ministerial act mistakenly memorializing the prior jural act. Heinl v. Heinl, 287 N.J. Super. 337, 353 (App. Div. 1996). We note that the mistake was perpetuated in subsequent orders. However, we fail to perceive any harm to the mother resulting from that fact, since we have found placement with the father was proper and, as we shall later explain, we find that legal custody was properly transferred to the father, in accordance with N.J.S.A. 9:6-8.51 and N.J.S.A. 9:6-8.54, following the dispositional hearing held on September 17, 2009. Thus, the relief sought by the mother is unavailable and her arguments in this regard are not cognizable on appeal. Advance, Inc. v. Montgomery Twp., 351 N.J. Super. 160, 166 (App. Div. 2002).
The mother also asserts that the change in custody lacked evidentiary support. However, as we have demonstrated, a proper evidentiary record was established at the December 18 proceeding, and the judge hearing the matter of January 20 was furnished with that record. Although, in denying the mother's application for return of her child pursuant to N.J.S.A. 9:5-8.32, the judge did not specifically state that he remained concerned regarding the child's safety, that concern easily can be deduced from the judge's focus on the seriousness of the injuries to the child and the limited progress that had been demonstrated in alleviating the conditions that led to those injuries.
We disagree with the mother's position that, by entering an order mistakenly transferring legal custody of the child to her father on January 20, 2009, the judge improperly held a dispositional hearing prior to conducting a fact-finding proceeding. It is clear from the transcript of the hearing that the judge envisioned only temporary relief.
Additionally, we are satisfied that the judge properly conducted a dispositional hearing in the matter on September 17, 2009, following the August fact-finding hearing. Although no testimony was adduced at that dispositional hearing, the judge was familiar with the facts of the matter because he had conducted a fact-finding hearing just a month before. Moreover, no contested issues of fact were raised that would have required further testimony in order for an appropriate outcome to be determined. As a consequence, we find nothing improper in the judge's determination "that it would not be appropriate to place the child with the mother at that time" - in context, a clearly safety-related conclusion - and that the father's custody should be retained. In accordance with G.M., there was no need for a custodial hearing, governed by the best interests of the child standard, at that time. G.M., supra, 198 N.J. at 402.*fn5
However, we conclude that the judge was mistaken in placing L.B. with her father for an indefinite period of time, a remedy that we have recently recognized is not authorized by Title Nine, New Jersey Div. of Youth & Family Servs. v. N.D., ___ N.J. Super. ___, ___ , 2010 N.J. Super. LEXIS 224, *20-21 (App. Div. 2010). We also conclude that the judge erred in terminating the litigation.
The Court held in G.M. that a transfer of physical custody to the non-offending parent constituted a "placement" under
Title Nine, stating: "Although 'placement' is not defined in Title Nine, we believe that the Legislature intended to include a non-custodial parent, such as the father here, as 'a relative or other suitable person' with whom the Division was authorized to place the child. N.J.S.A. 9:6-8.54(a)." G.M., supra, 198 N.J. at 403. In reaching this conclusion, the Court appears to have adopted the position of amicus curiae Legal Services of New Jersey that "a Title Nine 'placement' includes the placement of a child with a non-custodial parent and that to conclude otherwise denies a parent of the statutorily required procedures that ensure the right to plenary permanency hearings." Id. at 396.
Paragraph b. of N.J.S.A. 9:6-8.54, the statute cited by the G.M. Court, provides:
b. (1) Placements under this section may be for an initial period of 12 months and the court, in its discretion, may at the expiration of that period, upon a hearing make successive extensions for additional periods of up to one year each. The court on its own motion may, at the conclusion of any period of placement, hold a hearing concerning the need for continuing the placement.
We interpret this statute to require that Title Nine litigation remain pending during the period of the placement and until such time as the placement is properly terminated or made permanent as the result of a successful petition by the mother to terminate placement pursuant to N.J.S.A. 9:6-8.60, a permanency hearing pursuant to N.J.S.A. 9:6-8.24(c) and N.J.S.A. 30:4C-61.2,*fn6 or a motion by the father for change of custody based upon changed circumstances.*fn7
In the present matter, the judge did not limit the period of the placement as the statute requires, and he terminated the litigation. We find that the judge misconstrued the governing statutes in doing so, and therefore remand to permit the judge to vacate his order of placement and termination of the litigation and to enter an order in accordance with this opinion.
In the mother's remaining argument, she claims that her trial counsel was inadequate; an argument that, to succeed, requires her to make the two-part showing set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987), namely, that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment and that counsel's deficient performance prejudiced the defense. See New Jersey Div. of Youth & Family Servs v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the Strickland/Fritz test in the context of an ineffective assistance of counsel claim in a termination of parental rights case).
In support of her claim, the mother argues that, if counsel had been competent, the January 20, 2009 order granting custody to the father would not have been entered, a finding of neglect would not have been made, a suspended judgment would have been entered, and a dispositional order maintaining custody with the father would not have issued. We find the mother's arguments in this regard to lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
We conclude that the issues raised in the proceedings before the Family Part judge were appropriately framed, supported and decided, and that the mother has failed to meet her burden of demonstrating that counsel was incompetent and that counsel's incompetence affected the result. The judge had before him graphic color photographs demonstrating extensive bruising to the infant victim; B.D.'s acknowledgement that he had caused injury to the child's buttocks; the mother's acknowledgment that she knew B.D. was a drug addict when she placed her daughter in his custody and that she had been warned by DYFS not to do so; and the mother's admission that, despite the severity of the bruising, she failed to obtain emergency care for the child or even to accompany the child to the hospital when taken there by DYFS employees. Even the highest degree of lawyering could not ameliorate the effect of this evidence on the result in a Title 9 abuse and neglect proceeding.
We find that, in this matter, the mother has offered nothing but bald assertions that, if counsel had been more effective, the result would have been different. Such a showing is insufficient to establish a prima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In particular, we reject any arguments centering on the fact that defense counsel called Dr. Kairys as a witness at the fact-finding hearing. Although his testimony was not favorable to the mother, that testimony, as DYFS and the Law Guardian recognized at the time, was merely cumulative, because photographic evidence of the injuries to L.B. had already been admitted into evidence at the December 18, 2008 hearing and because B.D. had admitted to abusing the child.
Affirmed in part, reversed in part and remanded.