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New Jersey Division of Child Protection and Permanency v. A.L.

Superior Court of New Jersey, Appellate Division

January 10, 2020

A.L., Defendant-Appellant, and S.B., Defendant. IN THE MATTER OF Au.L., a Minor.

          Submitted December 9, 2019

          On motion for reconsideration of an opinion filed on October 28, 2019, in an appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0172-17.

          Joseph E. Krakora, Public Defender, attorney for appellant (Anastasia P. Winslow, Designated Counsel, on the brief).

          Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).

          Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel Christian Devlin, Assistant Deputy Public Defender, of counsel and on the brief).

          Before Judges Fisher, Accurso and Rose.


          FISHER, P.J.A.D.

         Defendant has moved for: (1) reconsideration of our recent disposition of this appeal; and (2) a reopening and expansion of the appellate record to allow defendant to pursue a claim of ineffective assistance of prior appellate counsel. Because the second issue raises a matter of first impression, we have taken the unusual step of deciding defendant's motion by opinion rather than order. For the reasons that follow, we deny reconsideration because we find frivolous defendant's argument that the brevity of our opinion on the merits reveals a failure to adequately consider the record and the arguments presented. As for the motion's novel second part, we will remand to the trial court for the development of defendant's argument that her prior appellate counsel was ineffective.


         To put things in perspective, we recently rendered an opinion on the merits of defendant's appeal of a Title Nine determination. N.J. Div. of Child Prot. & Permanency v. A.L., No. A-1399-18 (App. Div. Oct. 28, 2019). The Division's suit concerned one child - Au.L., born in December 2016 - and alleged defendant abused or neglected the child, who suffered neonatal abstinence syndrome following birth. The record included evidence that two months before the child's birth, defendant acknowledged she was a drug user, using up to five bags of heroin daily during the first eight months of her pregnancy. Later in the pregnancy, defendant tested positive for cocaine and heroin; she even tested positive for cocaine usage a week before the child's birth. After briefly recounting these circumstances, and an issue concerning a late attempt by defendant "to keep the record open for an additional trial day so that she might present expert witness testimony," we concluded that defendant's arguments lacked sufficient merit to warrant further explanation, as Rule 2:11-3(e)(1)(E) permits, adding that we also affirmed the order under review substantially for the reasons set forth in the trial judge's "comprehensive and well-reasoned written opinion." A.L., slip op. at 3.

         In the motion now before us, defendant - through new appellate counsel[1]- argues that we "eschewed the basic appellate obligation to review the record." She extraordinarily contends that we did not "scrupulously review[]" the record. To support this theory, defendant offers as evidence only the fact that our opinion is three paragraphs in length. This unusual argument suggests that the length of a court's opinion is proportionate to the court's investment of time and energy in its disposition; in other words, defendant apparently believes courts issue lengthy opinions when they have exerted a great amount of effort and short opinions when they have given little or no attention to the record or the arguments. No assertion could be more misinformed or misguided.

         Some of the most celebrated judicial opinions have been extraordinarily concise when compared to the compelling issues presented. The Court's landmark decision in Brown v. Bd. of Educ., 347 U.S. 483 (1954) consists of only thirteen paragraphs. See also Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); Gideon v. Wainwright, 372 U.S. 335 (1963); Brady v. Maryland, 373 U.S. 83 (1963); Yick Wo v. Hopkins, 118 U.S. 356 (1886). Justice Holmes's six-paragraph majority opinion in Schenck v. United States, 249 U.S. 47 (1919), broke new ground in the way the Supreme Court would thereafter apply the First Amendment to speech restrictions. Judge Cardozo ushered in modern thought on tort law in Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928), and contract law in Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88 (1917); the former consists of six paragraphs, the latter only three, and yet, no law school tort or contract textbook would be complete without them.

         We, of course, do not mean to compare our prior opinion to these landmarks in judicial thinking and writing. Far from it. These examples are offered only as proof that the idea that longer opinions are the product of greater consideration than shorter opinions is just simply wrong.

         Defendant also seems to misconceive our disposition of her appeal. To be sure, we relied on Rule 2:11-3(e)(1)(E) in rejecting her arguments, and we then only briefly described why those arguments were without sufficient merit to warrant further discussion. But we also affirmed substantially for the reasons set forth by the trial judge in his thorough twenty-two-page written decision. So, in criticizing this economical way in which we decided her appeal, we can only wonder whether defendant is seriously arguing that when an appellate court affirms o.b. (on the opinion below), it means that the court did not thoroughly review the record or adequately analyze the parties' arguments. What does that say for the numerous instances when our Supreme Court has disposed of an appeal in the same way? The Supreme Court regularly decides appeals by adoption of either a majority or dissenting opinion. See, e.g., Miller v. State-Operated School District of the City of Newark, ___ N.J.___ (Nov. 4, 2019); State v. Shangzhen Huang, ___ N.J.___ (Oct. 23, 2019); Feuer v. Merck & Co., 238 N.J. 27 (2019); Chirino v. Proud 2 Haul, Inc., 237 N.J. 440 (2019); N.J. Highlands Coalition v. N.J. Dep't of Envtl. Prot., 236 N.J. 208 (2018); State v. Vasco, 235 N.J. 365 (2018); State v. Young, 233 N.J. 345 (2018); Thompson v. Bd. of Trs., 233 N.J. 232 (2018); State v. Terrell, 231 N.J. 170 (2017); EQR-LPC Urban Renewal North Pier, LLC v. City of Jersey City, 231 N.J. 157 (2017); Granata v. Broderick, 231 N.J. 135 (2017); In re Enf't of N.J. False Claims Act Subpoenas, 229 N.J. 285 (2017). About a year ago, the Court affirmed o.b. a judgment terminating parental rights, N.J. Div. of Child Prot. & ...

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