August 24, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF M.S., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0268-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 8, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant, J.S., appeals from an order entered following a fact-finding hearing in which the trial court found that she disregarded a court order and, in doing so, exercised poor judgment with regard to her children's best interest, which the court concluded constituted neglect. We affirm.
Defendant is the biological mother of Madison, born in 1997, and Mason, born in 2005.*fn1 In 2007, she contacted authorities to report that she believed her husband, T.S., had engaged in inappropriate sexual conduct with Madison, T.S.'s stepdaughter. T.S. was arrested and, at the time bail was set, the court entered an order conditioning bail upon T.S. having no contact with defendant or Madison. In a December 10, 2007 letter, the Division of Youth and Family Services (Division) notified defendant that it had completed its casework in the matter and was immediately terminating its involvement. The letter also advised defendant that "the Division has concerns with [T.S.] visiting Mason[,] and as a reminder, visitation between Mason and [T.S.] is at your discretion."*fn2
Based upon this letter, defendant continued to arrange contact between T.S. and Mason via telephone, video conferencing, and upon T.S.'s release on bail, contact visitation. J.S. was present at all times during the contact visits. T.S. was indicted on charges of sexual assault, N.J.S.A. 2C:14-2b, and endangering the welfare of a child, N.J.S.A. 2C:24-4a.
In early 2008, defendant advised the Hunterdon County Prosecutor's Office that she was in the process of divorcing T.S. and her ability to communicate with him would be facilitated by lifting the no-contact condition of bail as to her. That portion of the no-contact order as it applied to defendant was therefore vacated at defendant's request. Trial on the charges was slated to commence in April 2009 but was adjourned and rescheduled for June 15. Prior to the initial April trial date, defendant arranged for T.S. to start having contact with Madison. At least two of those contacts were in-person, occurring at T.S.'s place of employment and at a local restaurant.
On June 9, 2009, just before the rescheduled trial date, the Division learned that T.S.'s attorney had inadvertently disclosed that defendant had been allowing supervised visits between T.S. and Madison. The Division effectuated an emergency removal of Madison and Mason and conducted its own investigation into the allegations. Also on June 9, defendant was arrested and charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; third-degree witness tampering, N.J.S.A. 2C:28-5a; and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1. She was released the next day after her father and step-mother posted $50,000 for bail. T.S.'s bail was increased to $150,000 on June 11. He pled guilty to one count of second-degree child endangerment, N.J.S.A. 2C:24-4a, and was subsequently sentenced to four years incarceration.
Also on June 11, the Division filed a verified complaint and Order to Show Cause (OTSC) seeking custody, care, and supervision of Madison and Mason based upon allegations of abuse and neglect on the part of defendant. On June 23, the return date of the OTSC, the Division expressed its concern that if T.S. "had inappropriate contact with one child, he might also have inappropriate contact with the second child and[,] therefore, she would be placed at a risk of harm." Defendant testified that Mason "was never included . . . [in the no-contact order and] the Division left [visitation] solely to my discretion." The court entered an order continuing custody, care, and supervision with the Division.
Defendant underwent a psychological evaluation the following month, which was performed by Karen D. Wells, Psy.D. Dr. Wells found defendant to be guarded as well as a victim of sexual abuse by her biological father. She expressed her clinical concern that defendant believed that she was justified in allowing the contact between T.S. and Madison as a way to bring about closure for Madison, notwithstanding the court order prohibiting such contact. She opined that defendant's actions reflected the exercise of poor judgment "as it relates to allowing known sexual perpetrators [that being T.S. and defendant's father] to have involvement in the lives of her daughters[.]" Dr. Wells recommended individual therapy for defendant, eventual reunification with Mason, provided she had living arrangements independent of her father, and supervision of Mason for a period of six months following reunification.
On October 19, defendant wrote a letter to the court acknowledging that she should not have permitted the contact between T.S. and Madison but explaining her reasons for doing so, as well as reiterating, what she had stated in her testimony at the OTSC hearing in June, namely, that "I was under the impression that [the Division] wanted me to decide how to handle visits between [Mason] and her father."
The court conducted its fact-finding hearing on October 28. The court initially placed on the record that counsel requested a conference with the court earlier that day during which the court disclosed that it had received the October 19 letter from defendant. Defense counsel placed on the record that he spoke to defendant about the letter and "advise[d] her not to send it." Defense counsel also represented:
[M]y client is willing to acknowledge that she did send the letter to you dated October 19, 2009. She's willing to swear that the contents of the letter are true and accurate and she stands by the letter.
What we are not doing, Judge, is stipulating to abuse and neglect. We'll stipulate to the contents of the letter or based upon the letter that's going to be admitted into evidence, [t]he [c]court can make a finding.
That was our agreement in the back.
The court and all other counsel concurred with defense counsel's representation regarding the agreement and also agreed that the matter would go forward as a fact-finding proceeding. The Division's attorney then moved into evidence, without objection from the defense, the following additional exhibits:
P-1 (Da78) Screening Summary;
P-2 (Da82-98) Report of Investigation, Office of the Public Defender, Law Guardian, DYFS Conflict Investigations Unit;
P-3 (Da99-106) June 10, 2009 Report from Caseworker Rebecca Kiddish, Somerset Local Office;
P-4 (Da107) Complaint - Warrant (T.S.) dated October 16, 2007;
P-5 (Da108) Notice of Required Court Appearance for T.S.;
P-6 (Da109-132) Interview of Mason by Hunterdon County Prosecutor's Office dated June 9, 2009;
P-7 (Da132-134) February 8, 2008 County of Hunterdon Supplementary Investigation Report;
P-8 (Da135-139) Memorandum from Supervising Victim Advocate Barbara Bates re: services provided to T.S.;
P-9 (Da140-142) Division Contact Sheet June 24, 2009;
P-10 (Da143) Bail Order for T.S. dated November 2, 2007;
P-11 (Da144) Bail Order revoking T.S.'s bail dated June 4, 2008;
P-12 (Da145) Bail Order for T.S. reinstating bail dated June 5, 2008;
P-13 (Da146) Bail Order for T.S. dated June 20, 2008, imposing the special condition of no contact between T.S. and J.S.;
P-14 (Da147) Bail Order for T.S. dated June 11, 2009, setting new bail in the amount of $150,000 and ordering no contact with Madison; and C-1 (Da148-151) October 19, 2009 letter to Judge Jane B. Cantor from defendant.
No testimony was presented and all counsel declined the opportunity for summation, agreeing to submit based upon the record before the court. The court found "that the facts within these documents show neglect with regard to the care of [Mason,] starting with that there was a court order precluding contact between [Mason] and her father." At that point, all counsel alerted the court that the no-contact order applied to Madison, not Mason. The court acknowledged its mistake and then proceeded to read into the record, portions of defendant's October 19 letter. The court stated:
She states this was an isolated incident and there was never another moment in my life that my children were placed by me in any form of danger, neglect, or abuse.
This [c]court reads this letter and accepts it as an acknowledgement by [J.S.] that in this instan[ce], by disregarding [t]he [c]court's order which was there to protect [Madison] specifically because [t]he [c]court recognizes that contact between a victim and an abuser is a very difficult situation and requires intense therapy before . . . it gets initiated and returns families together, and having this done at that point in time was not in the best interest of this child, subjected her to emotional trauma and placed - - and was facts of neglect.
That the risk of placing her in severe emotional trauma from this contact, which was precluded by [t]he [c]court, was neglect by the mother. She acknowledges that neglect. And it goes to her judgment, as Dr. Wells had said, that making a poor decision with regard to her children's interest subjects her to the jurisdiction of this [c]court.
After placing these findings on the record, the court advised counsel that having found neglect, it "would like to go forward with disposition." The Division's attorney moved into evidence, without objection, Dr. Wells' October 7, 2009 report. The court credited Dr. Wells' opinion expressed in that report and added to its findings, in the fact-finding portion of the proceeding, the findings embodied in Dr. Wells' report: "I . . . wanted to add to that because what Dr. Wells states and what this [c]court acknowledges with regard to the fact[-]finding is that putting either child in contact with a known perpetrator, an acknowledged -- it places . . . both those children at risk of harm."
The court entered a fact-finding order at the conclusion of the hearing declaring that it had determined, by a preponderance of the evidence, that defendant abused or neglected Mason because "she failed to obey a [c]court [o]rder which prohibited contact between [T.S.] and [Madison]."
Thereafter, the Division continued to provide services to defendant and Mason, while Mason remained in the Division's custody, care, and supervision. The court conducted periodic reviews of the matter, and defendant wrote a third letter to the court. In this letter, defendant expressed her desire for reunification with Mason and explained why, during one of her unsupervised visits, she took Mason to her father's farm, which caused the Division to once again question her judgment because defendant, as well as defendant's sister, had previously reported to the Division that their father had sexually abused defendant. Defendant explained in the letter that she took Mason to her father's farm to see Mason's cat and that she had specifically arranged to do so when her father was not present at the farm.
Based upon recommendations from the psychologists who had been involved in the matter, including a psychologist retained on defendant's behalf, the Division returned Mason to defendant's custody on July 30, 2010. On September 21, the Division recommended that the court terminate litigation because the conditions that resulted in Mason's removal from defendant's custody had been "remediated." The Division agreed to monitor the matter for an additional sixty days. The court granted the Division's application. The present appeal followed.
On appeal, defendant raises the following points:
J.S. WAS DENIED HER DUE PROCESS RIGHTS BECAUSE OF THE FAILURE OF THE COURT TO FULLY ADVISE J.S. ABOUT THE USE OF HER LETTER AS A STIPULATION AT THE FACT[-]FINDING HEARING.
THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT ABUSED AND NEGLECTED THE MINOR.
J.S. WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE HE FAILED TO FULLY ADVISE APPELLANT OF THE CONSEQUENCES OF ENTERING A STIPULATION AT THE FACT[-]FINDING HEARING AND FAILED TO OBJECT TO PROCEDURAL IRREGULARITIES WHICH DEPRIVED HER OF AN OPPORTUNITY TO BE HEARD AND OTHER DUE PROCESS RIGHTS.
We have carefully considered these arguments in light of the record, the briefs, and the applicable legal principles, and we conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11--3(e)(1)(E). We add only the following comments.
Contrary to defendant's contention, the trial court did not treat her October 19, 2009 letter to the court as a stipulation of abuse or neglect. Defendant's attorney placed on the record that defendant was not stipulating to abuse or neglect. Rather, defendant was acknowledging that she sent the letter to the court and was also "willing to swear that the contents of the letter are true and accurate and she stands by the letter." Defense counsel stated further that "[w]e'll stipulate to the contents of the letter or based upon the letter that's going to be admitted into evidence, the [c]court can make a finding. That was our agreement in the back." The court and the Division's attorney acknowledged this agreement. The Division's attorney then moved to admit a series of documents to which defense counsel raised no objection. Thus, the court entered its findings based solely upon the exhibits admitted into evidence.
N.J.S.A. 9:6-8.46 provides in pertinent part:
a. In any hearing under this act, . . . (1) proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of, or the responsibility of, the parent or guardian and . . . .
b. In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted.
c. In a dispositional hearing and during all other stages of a proceeding under this act, only material and relevant evidence may be admitted.
Contrary to defendant's arguments, testimonial evidence is not a prerequisite for the entry of a finding of abuse or neglect at a fact-finding hearing. What is required is that the decision be grounded upon competent and reliable evidence. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002). Defendant's letter, which she voluntarily sent to the court prior to the fact-finding hearing, was admissible as a statement by a party-opponent, irrespective of any stipulation by defense counsel as to its contents and accuracy at the hearing. N.J.R.E. 803(b)(1). Thus, counsel's failure to explain the consequences of stipulating to the contents of the letter was inconsequential because its admissibility was governed by our Rules of Evidence rather than our recent decision in New Jersey Division of Youth & Family Services v. M.D., 417 N.J. Super. 583, 589 (App. Div. 2011) (holding that trial counsel's failure to advise defendant in abuse and/or neglect proceeding about consequences of her stipulation to certain facts constituted ineffective assistance of counsel).
Turning to the content of the letter as it relates to the court's factual findings, the letter makes clear that defendant violated the no-contact order as it related to Madison and T.S. In doing so, she not only exposed Madison to a risk of harm, but also Mason. Defendant points out, however, that the Division never prohibited contact between T.S. and Mason but instead left it to her discretion.
It is evident from the record that the court was confused as to the scope of the no-contact order when it stated in its findings "[t]hat the risk of placing her in severe emotional trauma from this contact, which was precluded by the [c]court, was neglect by the mother." This finding suggests that the court was still confused and based its finding of neglect upon permitting T.S. to have contact with Mason in addition to Madison. The court states further that "making a poor decision with regard to her children's interest subjects her to the jurisdiction of this [c]court."
To the extent the court concluded that defendant exercised poor judgment by arranging contact between Mason and T.S., a finding of neglect could not be sustained because there was evidence in the record that the Division had in fact endorsed such conduct. Although the December 10, 2007 letter was not part of the exhibits admitted into evidence by the Division, in the October 19 letter, admitted into evidence, there is a reference to defendant's understanding that it was up to her to decide whether T.S. and Mason should have visitation. The court's factual findings did not include any consideration of this explanation from defendant.
Nonetheless, we are satisfied the record supports the judge's finding that defendant exercised poor judgment regarding Mason's interest when she violated the court's order as to Madison. By doing so, defendant exposed herself to criminal charges, was arrested, and caused Mason to be without both parents at a point when Mason was already suffering from the loss of her father. Defendant's actions were beyond simple negligence. It was defendant who disclosed to police that T.S. had sexually abused her daughter. Defendant was fully aware that T.S. was not to have contact with Madison. She also knew that his trial was imminent and in fact had been attempting to influence Madison's testimony. Her actions reflect the failure to exercise the minimum degree of care necessary to safeguard Madison and Mason from risk of harm. Dep't of Children & Families, N.J. Div. of Youth & Family Servs. v. T.B., ___ N.J. ___, ____ (2001) (slip op. at 28-29). Defendant exposed Madison to the risk of additional emotional harm and confusion and caused Mason's estrangement from both parents as well as her sister. Further, defendant's actions, as they related to Madison, were certainly relevant to future decisions she would make relative to Mason. We therefore conclude there was substantial credible evidence in the record to support the trial judge's finding of neglect as to Mason. N.J.S.A. 9:6-8.46.
Finally, defendant urges that she was deprived effective assistance of counsel because her trial counsel did not fully advise her of the consequences of entering the letter into evidence. We disagree.
First, defense counsel did not move the letter into evidence. The letter was sent to the court by defendant. According to representations from defense counsel, he advised defendant not to send the letter. However, defendant, in the certification she submitted to this court in support of her motion to supplement the appellate record, claims that she faxed the letter to her attorney prior to submitting it to the court and "made several follow-up phone calls to his office asking for feedback on whether I should mail the letter to the judge." She certified further:
I did not receive a return call from him and, wanting to be sure my side of the case was heard, mailed the letter to Judge Cantor.
4. When I arrived at court, my trial attorney appeared angry at me for sending the letter. My only guess is that he must have seen the letter I sent to him and was not sure what to advise me, since there was nothing incriminating in the letter. My attorney did not discuss with me the effect of submitting the letter at the fact[-]finding hearing.
While there are conflicting versions as to whether counsel conferred with defendant in advance of defendant sending the letter to the court, the dispute is not material to the issue of whether there was ineffective assistance of counsel.
In New Jersey Division of Youth & Family Services v. B.R., 192 N.J. 301 (2007), the Court held that ineffective assistance of counsel claims are cognizable in termination of parental rights cases because of the consequences resulting from such proceedings. Id. at 305--07. Thus, the Court extended to defendants in parental termination proceedings the right to assert ineffective assistance of counsel claims on direct appeal, as a basis to set aside a judgment terminating parental rights. Id. at 311; see also R. 5:12--7 (providing that claims of ineffective assistance "shall be raised exclusively on direct appeal"). The Court applied the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984), and adopted in this jurisdiction in State v. Fritz, 105 N.J. 42, 51 (1987), namely, a defendant must demonstrate that counsel's performance was seriously deficient and that the defect in performance prejudiced the defendant's right to a fair trial. B.R., supra, 192 N.J. at 307.
The consequences of a finding of abuse or neglect include listing the name of the person adjudged to have abused or neglected a child in the Central Registry. N.J.S.A. 9:6-8.11. Although a person aggrieved by such a designation may administratively challenge the designation, such designation carries with it consequences, including injury to reputation and potential ineligibility for employment that would involve access to children. See Div. of Youth & Family Servs. v. D.F., 377 N.J. Super. 59, 66 (App. Div. 2005). Therefore, it is likely that our Court would conclude that an ineffective assistance of counsel claim would also extend to claims related to ineffective assistance of counsel in abuse or neglect claims proceedings.
Here, it is undisputed that counsel failed to advise defendant of the consequences of submitting the October 19 letter to court. Counsel represented that he advised defendant against submitting the letter. Defendant contends that despite efforts to reach her attorney before sending the letter, he did not return calls and that she sent the letter because she wanted the court to understand her actions. The conflict of versions is not critical to resolution of defendant's ineffective assistance claim. First, if counsel in fact advised defendant in advance of her sending the letter, defendant cannot claim that counsel was ineffective. If defendant submitted the letter without first discussing the letter with her attorney, once again, she cannot prevail on her claim of ineffective assistance of counsel, since she voluntarily proceeded without the advice of counsel. Moreover, once the letter was sent to the court, its contents were admissible in a subsequent proceeding, irrespective of any stipulation as to its contents. Finally, even in the absence of the letter, there was no dispute that defendant violated the no-contact order as it related to T.S. and Madison and, in exercising her judgment in that regard, neglected the needs of Mason, who was left without either parent as a result of defendant's actions. Thus, defendant's claim of ineffective assistance of counsel based upon the court's consideration of the October 19 letter would not satisfy the first Strickland prong.
As to the remaining claimed deficiencies in legal representation, the record supports defendant's contention that trial counsel submitted the issues to the court without any opening or closing arguments and failed to bring to the court's attention that the no-contact order did not extend to contact between T.S. and Mason. None of these actions, even if sufficient to satisfy the first prong under Strickland, would have altered the court's finding of neglect. As such, defendant fails to satisfy the second Strickland prong. 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697.