February 7, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
E.D., DEFENDANT-APPELLANT, AND K.D., DEFENDANT-RESPONDENT. IN THE MATTER OF K.D., K.D., AND C.D.,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FN-01-142-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 something like that. It's surgery on the hand.
COURT: because this hearing was scheduled some months ago -
SUCCESSOR ATTORNEY: I understand, Judge.
COURT: How do you want to proceed?
SUCCESSOR ATTORNEY: The thing I can say is that I'm not sure [E.D.]'s testimony is necessary . . . .
On remand, her successor attorney did not call E.D.'s trial counsel to testify, and offered no evidence in support of E.D.'s contention that she received ineffective assistance of trial counsel. At the conclusion of the remand hearing, the judge issued an oral decision finding that E.D. had received effective assistance of counsel throughout the fact-finding hearing, and on April 5, 2011, he entered an order memorializing his findings.
Thereafter, E.D. moved for reconsideration. The judge reviewed certifications of E.D. and her successor attorney and denied the motion, providing his reasons in a letter to the parties:
At the time the March 25, 2011 [remand] hearing was scheduled, there was no objection from [E.D.'s successor attorney] that E.D. had surgery scheduled that same day. Moreover, this Court has yet to receive any documentation regarding when E.D. scheduled her surgery for carpel tunnel syndrome.
Based upon a review of [d]efendant's moving papers, E.D. has failed to offer any new information that should alter the [c]court's decision regarding the March 25, 2011 court date. E.D. does not claim lack of notice for the hearing, nor does she allege that she made any actual attempt to appear. In fact, the opposite is true. Moreover, the [c]court is satisfied that E.D. willfully decided not to appear for the hearing scheduled on March 25, 2011.
Subsequently, we denied E.D.'s motion for a second limited remand and to disqualify the judge.
On appeal, E.D. argues that the judge (1) made procedural errors and mistaken findings of fact at the remand hearing, and (2) incorrectly determined that E.D. had received effective assistance of counsel. We reject both contentions.
We begin our analysis with E.D.'s contention that because the judge did not require her to testify at the remand hearing, he was bound to accept her certification as "true" based on the language of our remand order. We disagree.
Nothing in our order suggests that we intended to impose such a restriction on the judge's ability to conduct the remand hearing and make findings of fact consistent with the evidence and testimony presented. In relevant part, our order stated:
Appellant's motion to supplement the record is granted. We also temporarily remand the matter to the trial court for a determination regarding appellant's argument that she was denied the effective assistance of counsel in light of the factual contentions raised in the supplemental papers.*fn4 See N. J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 311 (2007).
In B.R., the Supreme Court explained that claims of ineffective assistance of counsel are often "resolvable on the appeal record alone," particularly "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." Ibid. (emphasis added). However, the Court also stated that "in some cases, a genuine issue of fact may require resolution" necessitating a temporary remand for an accelerated hearing. Ibid. (emphasis added).
It is illogical that we would have accepted E.D.'s certification as "true" and at the same time remanded for fact-finding to resolve a "genuine issue of fact" as to whether she had effective assistance of counsel. The certification was simply insufficient for us to resolve that issue. Our order implicitly contemplated live testimony, an opportunity for E.D. to establish the assertions made in her certification; otherwise, there would have been no reason to remand the matter. Moreover, nowhere did the order indicate that we were invoking original fact-finding jurisdiction, which we only exercise "'sparingly and in none but a clear case where there is no doubt about the matter.'" Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)); R. 2:10-5. Accordingly, the judge correctly found that the order did not require accepting that the "certification in and of itself is factual to the point that it is a part of the record and accepted by either the trial court or the Appellate Division."
We employ a limited standard of review and must accept the factual findings of a trial court as "binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12 (quoting Rova Farms, supra, 65 N.J. at 484). Trial judges see and hear the witnesses firsthand and have a "feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (internal quotation marks omitted). Moreover, Family Part judges have special expertise in the area of family law, ibid., and we will not second-guess their exercise of sound discretion. Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
The judge found that despite having sufficient notice, E.D. intentionally did not attend the remand hearing. The record sufficiently supports the judge's finding because E.D.'s certification that she took methadone when she arrived home after dropping off the children contradicted her admission to DWI. It was reasonable for the court to infer that she failed to appear at the remand hearing, therefore, to avoid being cross-examined on her inconsistent statements. Even if the inference were incorrect, at a minimum E.D. should have rescheduled her non-emergency procedure. The judge also found that because she did not make herself available for cross-examination at the remand hearing, he could not accept the assertions set forth in her certification as facts. We see no abuse of discretion in these findings.
We now turn to the main substance of E.D.'s appeal. She argues that she received ineffective assistance of counsel at the original fact-finding hearing because her trial counsel did not request an adjournment or ask whether she wanted to testify. She contends that these failures constitute a "due process violation" by which "prejudice is presumed" pursuant to United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).*fn5
We review claims of ineffective assistance of counsel under a two-prong test set forth in Strickland v. Washington, 466 U.S. 689, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), as adopted by State v. Fritz, 105 N.J. 42, 58 (1987). B.R., supra, 192 N.J. at 307-09; see N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 609 (App. Div. 2011). To succeed, a parent must show that "(1) counsel's performance [was] objectively deficient - i.e., it [fell] outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense - i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" B.R., supra, 192 N.J. at 307 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).
We indulge "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. at 307-08 (emphasis added) (internal quotation marks omitted) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695). Thus, when an appellant claims ineffective assistance of counsel, he or she "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." Id. at 311.
At the conclusion of the remand hearing, the judge explained:
[I]t was [E.D.'s] choice not to show up here today and be subjected to potential questioning . . . as to why she would say [one thing] in the Municipal Court . . . and tell a police officer a totally different story.
I'm satisfied [E.D.'s trial counsel] knew all of that. We all knew all of that. We knew what she told the police officer. We knew that she had pled guilty in Municipal Court. And I believe that there then was a decision to be made by [her trial counsel]. Was it the right decision or wrong decision? I have no idea what would have happened if he had made the opposite decision, but I am convinced that that decision [was] made in consultation with her attorney . . . .
Therefore, I do not find that the actions and decisions of [E.D.'s trial counsel] meet the [Strickland] or [Fritz] standards. In fact, I don't even find that they come close. I find that he made decisions, having a difficult client, having a difficult factual situation, and made a decision that this is the way he was going to proceed in a difficult situation . . . . And I do not find his decision of not putting her on the witness stand when he had ample opportunity and [E.D.] had ample opportunity to take the witness stand; that his decision was so egregious that he was not functioning as [c]counsel which is guaranteed by . . . the United States Constitution. Or that his decision resulted in errors, which were so serious as to deprive [E.D.] of a fair trial.
We perceive no error in these findings, which are not "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). E.D. failed to establish the first prong under Strickland. She presented no evidence, either at the remand hearing or on appeal, that her trial counsel's performance was objectively deficient. The trial court had ample basis to infer that E.D. did not testify to avoid explaining on cross-examination the inconsistency between her plea of guilty to DWI and the assertion in her certification that she told the officer that she took the methadone after returning home from the bank. Her second failure to appear in court at the remand hearing circumstantially reinforces that inference. We consider her failure to testify, and her trial counsel's proceeding in her absence, to be trial strategy. B.R., supra, 192 N.J. at 307-08. Because E.D. failed to establish a prima facie case of ineffective assistance of counsel, we need not reach the second prong of Strickland.
We conclude that the remaining arguments of counsel are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).*fn6