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New Jersey Division of Youth and Family Services v. J.B


March 7, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-397-07.

Per curiam.



Argued February 8, 2011

Decided Before Judges Carchman and Waugh.

Defendant, J.B., first the foster mother of minors C.P and M.P.,*fn1 (collectively "the children") and then their adoptive mother, appeals from a January 14, 2010 order of the Family Part denying her motion to set aside the judgment of the Family Part finding her guilty of neglect. In addition, defendant asserts that her counsel was ineffective. We reject the latter claim and conclude that the motion judge did not err in denying defendant's motion. Accordingly, we affirm.

We review the extensive factual and procedural history of this case to place the issues raised on appeal in appropriate context. In May 2007, approximately four years after the children's adoption by defendant, M.P. was at school, and was "hit in the face with a football," which broke her eyeglasses. The school attempted to contact defendant. When they were unable to reach anyone, M.P. "told the nurse that [defendant] was away and that is why they couldn't reach her."

The school principal contacted the New Jersey Division of Youth and Family Services (DYFS or the Division). Monica Garcia, the assigned DYFS investigator, interviewed both M.P. and C.P. at the school. M.P. told Garcia that her mother had gone to Wildwood, New Jersey with a male friend named Sam Marcos. C.P. informed Garcia that defendant had left on Sunday, May 20, and would "probably be back by Friday," May 25.

In response to Garcia's inquiries, the children related a litany of problems in the home. According to Garcia, M.P. told her that defendant, while in Wildwood, had instructed M.P. to stay in a basement apartment she owned, while C.P. stayed at the family residence. Both C.P. and M.P. claimed that this arrangement resulted from M.P. having previously taken money and food without permission, and that defendant did not trust her. M.P. did not have food at the apartment, and C.P. would bring her food.

Both children also stated that defendant was away from home for approximately five days in March 2007. During that time, C.P. had been left alone at home, while M.P. stayed at defendant's friend's house. C.P. also confirmed that, in her mother's absence, C.P. would go to the family residence after school, feed the dogs, complete her homework and then walk approximately forty minutes to M.P.'s location, where both children would eat and sleep.

C.P. also stated that "[defendant] and the girls wear diapers when they get their menses and one time C.P. rubbed a dirty diaper on their face when she left it lying around." C.P. feared going home after school because "she doesn't know what [defendant] is going to do." In addition, C.P. claimed that she overheard a telephone call in which defendant said, "If I could I'd kill them." Finally, C.P. claimed that defendant "hits [M.P.] more than her[self] because [M.P.] appears to not care and makes [defendant] repeat herself more."

M.P. also reported additional problems. She stated that defendant does not allow her into the kitchen unless M.P. is cleaning, that defendant did not buy them clothing, and that their wardrobes were instead provided by "the church and neighbors." She felt that "she likes her sister but does not have a healthy relationship with her because [defendant] keeps them separate within the household." She claimed that defendant curses at them, using words such as "bitch" and "the 'F' word." Finally, M.P. told Garcia that, after she returned from McDonald's without defendant's salad, defendant told her that "she would wish she would choke and die on her burger."

Defendant had provided M.P. and C.P. with a list of emergency contact numbers. Garcia attempted to call defendant on Marcos' cellular phone and left a voicemail message. Garcia later attempted to contact the other people on the list. Although Garcia called "Ms. Colleen," "Julie," and "Ms. Jenn Mullaly," *fn2 none of the listed people answered. After consulting with her supervisor, Garcia was instructed to effect an emergency removal. C.P. was placed with the Volunteers of America in Jersey City, and M.P. was placed in a foster home in Kearny.

Two days later, on May 25, DYFS filed a verified complaint seeking custody of the children. Defendant claimed that the children were supervised, but had decided, of their own volition, to stay in the basement apartment instead of with their caregiver on the second floor, Ms. "Jennifer Mulolli." Defendant also refuted the characterization of the cheeseburger incident, stating that "I asked her to slow down or she will choke." The judge granted temporary custody of the children to DYFS.

After the proceeding, Garcia interviewed defendant at her home. Defendant claimed that she did not leave the children unsupervised, but that they were in the care of Julie Rojas,with Ms. Jennifer Mellali as a "back up." Defendant also claimed that Marcos' cell phone battery had died, but had no explanation as to why the alleged caretakers had failed to contact anyone after DYFS removed the children.

Defendant stated that the children are "sneaks," citing M.P.'s theft of $300, forcing defendant to call the police. As to the diaper allegation, defendant stated that "she did not rub their face in it but also made them smell it because one of the children left one lying around." Defendant also denied cursing, saying that she only takes away television privileges as a form of discipline.

On the return date for the order to show cause, defendant offered to make a surrender of her parental rights, but Judge Bovino denied the request. The judge entered a multi-purpose order requiring a psychological evaluation or treatment for both defendant and the children. The judge also ordered the Division to develop a permanent plan for the children and determine their adoptability.

A fact-finding hearing was held in August 2007. Defendant claimed that she and Marcos were visiting Marcos' sister, who was being treated for cancer. She also testified that she planned on the girls staying with Jennifer Mellali. Rojas testified, stating that she was a backup caregiver, and that Mellali was the prime caregiver. At the conclusion of the hearing, Judge Bovino made extensive findings of fact on the record. He concluded:

Here we have at least one child that can't be trusted, suffers from severe behavior problems, and yet [defendant] is willing to abdicate her responsibility, go to Wildwood, obviously or apparently to visit Mr. Marcos' sister, who is receiving treatment, but she [abdicates] responsibility of taking care of this incorrigible child, this conniving, young child to someone other than herself.

Not only does she do that, but while she's in Wildwood she doesn't even have consideration to find out how the children are doing, doesn't call the caretakers to keep an eye on [M.P.] . . . doesn't call the children to see how you're doing, did you eat, did you go to school, did you [do your] homework.

For those four or five days she totally abandoned her parental responsibility to somebody else, as far as I'm concerned.

Additionally, the comments to the Division indicate that she is willing to abdicate responsibility to the Division. Statements [such as,] if you want them, take them, [and] I don't know if I can do this any longer. I'm convinced clearly that this is . . . neglect.

Following the fact-finding hearing, defendant again offered a voluntary surrender of her parental rights, which was accepted resulting in an order dismissing the litigation.

Defendant appealed the finding of neglect. In March 2008, defendant moved before this court, certifying that she had recorded an audio conversation with C.P. on March 17, 2008, and seeking a remand and reconsideration of the finding of neglect based upon this recording.

The transcripts appear to be attempts by defendant to elicit statements from C.P. that would corroborate defendant's arguments. The two conversations evince a tentative agreement by C.P. with defendant's line of questioning. When asked "who were you sent to [C.P.]?" she replied "I was sent to Jennifer [Mellali]." However, C.P. then goes on to state that defendant may have agreed that M.P. and C.P. would not stay at Mellali's residence, but downstairs in the apartment. "And then after that you said something about, you know, maybe [I]'ll stay downstairs . . . because . . . it's a little crowded upstairs." Similarly, C.P. later stated that school officials had called the emergency contact numbers on Wednesday, a point that defendant had denied at the hearing.

DYFS cross-moved to supplement the record with defendant's guilty plea to one count of criminal child abuse. We denied that application but temporarily remanded the matter to the Family Part "so that any of the parties may present to the court current information. If appropriate, the Family Part may amend its findings. We express no view on whether the Family Part should do this or not."

The trial judge conducted a conference with counsel to address the temporary remand. At the conclusion of that conference, Judge Bovino allowed the Division to supplement the record with defendant's guilty plea and fixed a date certain for the filing of any motions by defendant. Defendant did not adhere to that schedule, but we expanded the time limit. That date passed as well. Ultimately, we denied any further time to defendant, and DYFS moved before us for summary affirmance of the finding of neglect. In granting that motion, we concluded that:

Judge Bovino's findings that [defendant] "totally abandoned her parental responsibility" for the four or five day period of her absence, was supported by the evidence, pursuant to the clear and convincing standard.

Temporary remand orders are entitled to finality. [Defendant] did not avail herself of two opportunities provided by this court.

Defendant's subsequent motion for reconsideration and a petition for certification were denied. N.J. Div. of Youth & Family Servs. v. J.B., 199 N.J. 54 (2009).

Defendant then filed an application in the Family Part pursuant to Rule 4:50-1 to vacate the August 2007 fact-finding order and continue the hearing to present further testimony. Judge Bovino denied the application:

The application . . . is denied, as there is no showing [that C.P.'s recorded statements are] more than cumulative and not probable to alter the results. The application that trial counsel was ineffective is denied as there is no showing such deficiency affected the ultimate result. The application for a supplementalFact Finding Hearing is rendered moot as Title 9 litigation was dismissed based on [defendant's] general surrender. [Defendant] having pled guilty to a charge of child abuse and is estoppe[d] from taking a position she did not commit an act of abuse. The matter has been fully litigated and res judicata applies.

This appeal followed: On appeal, defendant claims ineffective assistance of counsel at the Rule 4:50-1 hearing, as well claiming that the judge erred by denying her relief under the Rule.

Defendant argues that she received ineffective assistance from her counsel. Defendant alleges that the R. 4:50-1 application required an evidentiary proffer, and that counsel's conduct failed to meet the standard of adequate representation by the absence of sworn statements from C.P. and M.P. Defendant also asserts that her first counsel during the early stages of the litigation was also ineffective.

The trial judge found that "there is nothing in the proffer that would attempt to show that the new evidence would clearly exonerate or cast doubt on . . . the Division's allegations." He also noted that "the proffer . . . would be . . . cumulative to the defense raised by [defendant]," and addressed defendant's allegations against first counsel: "I'm satisfied that that is not clearly a deficiency outside the scope of professional conduct. And secondly even if it was done, based upon the totality of the circumstances if it would have brought about a different result."

The standard for ineffective assistance of counsel as applied to parental rights cases is found in DYFS v. B.R., 192 N.J. 301 (2007). The Court held that defendants enjoy "the right to counsel in a termination case[,]" and that "the performance of that counsel must be effective." Id. at 306. The Court adopted "[the Strickland test] as the standard in parental termination cases." Id. at 309 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). The Strickland standard was adopted by the Court in State v. Fritz, 105 N.J. 42 (1987).

Strickland provides:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable. [State v. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693) (alteration in original).]

In adopting Strickland, the Court identified the first prong as "the performance prong" and restated the Strickland Court's ruling that "client loyalty, adequate consultation, and legal proficiency are relevant in determining whether assistance was effective." Fritz, supra, 105 N.J. at 52. Further, Strickland sets forth no specific test for the "performance prong." Ibid. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Ibid. (quotations omitted). Yet, significantly, the Court observed that there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (quotations omitted).

The second prong of the Strickland test requires that "prejudice must be proved; it is not presumed." Ibid. (quotations omitted). To prove the "prejudice prong," defendant must establish the "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." Ibid. (quotations omitted). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006) certif. denied, 192 N.J. 66 (2007).

B.R. further informs that unsupported contentions of counsel's alleged deficiencies are insufficient. Defendant "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." B.R., supra, 192 N.J. at 311. Finally, the Court noted that "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." Ibid.

The trial court's findings, which are supported by substantial credible evidence in the record, N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010), are fatal to defendant's ineffective assistance claim. First, as to defendant's first attorney, the trial reached two conclusions: her assistance was not ineffective, and that effective assistance would not have produced a different result. The trial judge in this case was particularly well-suited to determine the question, as counsel had litigated the entire matter before him.

Judge Bovino, presiding at the August 2007 fact-finding hearing, observed all of the defendant's witness, including defendant herself, and determined that the witnesses were "convoluted, tangential" and "inconsistent." However, Judge Bovino stated that, even accepting as true this discredited testimony, he found that there was neglect. "[W]hile she's in Wildwood she doesn't even have consideration to find out how the children are doing, doesn't call the caretakers to keep an eye on [M.P] . . . she totally abandoned her parental responsibility to somebody else, as far as I'm concerned."

"We are obliged to defer to the trial judge's credibility determination to the extent that it was grounded in the court's opportunity to observe the character and demeanor of the witnesses, an opportunity that we appellate judges are not afforded." State v. Sheika, 337 N.J. Super. 228, 238-39 (App. Div. 2001) (citing State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964)). The findings here rely, in good measure, on the judge's credibility determinations. We find no basis for questioning those findings.

Defendant's new proffer purportedly confirms her prior position that she had provided two caretakers for the children. The claim fails as defendant's neglect did not solely consist of failing to find caretakers. Additional evidence from the children disputing this fact would be unavailing.

There is no reasonable probability that, had counsel introduced the statements in the original fact-finding hearing, the outcome would have been different. Defendant's allegation of ineffective assistance of counsel fails the prejudice prong.

We reach the same result as to defendant's claim of ineffective assistance of counsel on the application at issue on this appeal. First, there is substantial evidence to support Judge Bovino's decision that defendant's proffered evidence was "cumulative and not probable to alter the results." The proffered transcripts do not reveal any new or exculpatory information. Defendant's attempts to elicit exculpatory statements from C.P. are successful only in reaffirming facts which, for the purposes of the original fact-finding hearing, Judge Bovino accepted as true.

For example, the transcript states that C.P. said, "I was sent to Jennifer." This is nearly identical to defendant's statement at the hearing: "[M.P.] was given instructions to go down to Jennifer's house on that Sunday and be with Jennifer."

C.P. also purportedly stated "Julie [was the second emergency]." Defendant had already testified that "Mrs. Rojas was my backup caretaker for any reason." In the second transcript, C.P. states, "[Julie Rojas' side door] . . . it's always open for us to go in." Rojas testified to the exact same thing: "I said no problem, the girls know that I leave the side door open, and they would come in any time." None of the proffered statements indicate that any of the caretakers had personal supervision of the children at any relevant time, nor do they indicate any additional measures on defendant's part. In short, the transcripts are consistent with defendant's already offered explanations.

In addition, even assuming that the transcripts contained some type of recantation on C.P.'s part, there was still substantial evidence supporting Judge Bovino's finding. Among other things, Judge Bovino considered the testimony of Rojas, Marcos and defendant. The judge also had Garcia's materials, which included twenty-eight pages of reports and statements. These documents included five interviews with the children, as well as letters and bills provided by defendant. Given the particular deference due to fact-finding in family cases, Cesare, supra, 154 N.J. at 412-13, and "the need to evaluate the totality of the proofs because the evidence can be synergistically related," N.J. Div. of Youth & Family Servs. v. P.W.R., ___ N.J. ___, ___ (2011) (slip op. at 42), the judge's factual findings are well-supported by the record, even accounting for the alleged recantation. The prejudice prong of the Strickland test requires a reasonable probability that, had effective assistance been rendered, a different result would have been reached.*fn3 No such showing was made here.

Finally, we conclude that defendant's arguments as to the denial of the Rule 4:50-1 application are without merit and do not require further discussion. R. 2:11-3(e)(1)(E). We do note that any consideration given by the trial judge to defendant's plea of guilty in the criminal abuse matter was not error. Her plea was evidence and could be considered by the judge as such. Eaton v. Eaton, 119 N.J. 628, 643-44 (1990). Since it was a plea, it was not conclusive but could be considered as an admission, subject to defendant's right to challenge the admitted fact. Ibid. We conclude that there was no error here.


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