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New Jersey Division of Youth v. E.D

February 7, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.D., DEFENDANT-APPELLANT, AND K.D., DEFENDANT-RESPONDENT. IN THE MATTER OF K.D., K.D., AND C.D.,
MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-142-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2012 - Decided Before Judges Sabatino, Ashrafi and Fasciale.

Defendant-mother E.D. appeals from a May 11, 2010 order of the Family Part finding that she abused or neglected her minor biological children, K.D. (then sixteen years old), k.d. (then twelve years old), and C.D. (then ten years old).*fn1 We temporarily remanded the matter to address E.D.'s argument that she did not have effective assistance of counsel at a fact-finding hearing. We now affirm.

On the morning of January 9, 2009, E.D. borrowed a friend's campervan and drove k.d. and C.D. to elementary school. After dropping the two children off, E.D. drove to a bank where she struck the overhead lighting of the drive-thru lane with the campervan. She backed up, attempted again, and again struck the overhead. She then left the scene and drove home. The bank called the police, who responded to E.D.'s residence.

Upon arrival, the police determined that E.D. appeared to be under the influence of drugs or alcohol and administered a field sobriety test, which E.D. failed. The police then arrested E.D., determined that an alcohol test was unnecessary because "it was clear [t]here was no alcohol involved," and "performed a drug recognition expert evaluation," which included taking a urine sample. The police charged E.D. with driving while intoxicated (DWI), N.J.S.A. 39:4-50. On March 12, 2009, E.D. pled guilty to DWI.

Having received multiple prior referrals regarding E.D.'s conduct with the children, the Division of Youth and Family Services (DYFS) investigated and substantiated that E.D. had driven two of the children to school while under the influence of methadone. In January 2009, DYFS filed a verified complaint against E.D. for care and supervision of the three children.*fn2

On August 10, 2009 and January 6, 2010, the court conducted a fact-finding hearing. E.D. did not testify on the first date and failed to appear for the second date. On May 11, 2010, the judge entered an order finding, by a preponderance of the evidence, that E.D. had "abused or neglected the child(ren) in that she drove the minor children to school while under the influence of drugs/medication" in violation of N.J.S.A. 9:6-8.21(c).

On June 24, 2010, E.D. filed a notice of appeal, asserting that she had received ineffective assistance of counsel at the fact-finding hearing because trial counsel failed to request an adjournment or ask whether she wanted to testify. We granted E.D.'s motion to supplement the record in light of factual contentions raised in her certification, which stated that she did not receive notice from her trial counsel or the court of the second date of the fact-finding hearing, and that she took the methadone only after arriving home following the bank incident. We then temporarily remanded the case to the trial court to address her ineffective assistance of counsel argument.

On March 25, 2011, the same Family Part judge conducted the remand hearing. E.D. did not appear. The judge asked her successor attorney,*fn3 how he would like to proceed in light of her absence:

SUCCESSOR ATTORNEY: . . . I just found out this morning that [E.D.] was having hand surgery and she said that she would probably be done by 11, 12 o'clock. I suggested she either cancel surgery since it wasn't life-threatening or get here as soon as she can.

She informed [] me she will not cancel the surgery and she's not here right now and I left several messages for her.

COURT: It's not an emergency, this surgery? SUCCESSOR ATTORNEY: My understanding [is] it was Carpal Tunnel Syndrome. I spoke to her husband. It wasn't like bypass surgery or ...


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