NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
A.L., Defendant-Appellant, and S.B., Defendant. IN THE MATTER OF Au.L., a Minor.
Submitted December 9, 2019
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.
E. Krakora, Public Defender, attorney for appellant
(Anastasia P. Winslow, Designated Counsel, on the brief).
S. Grewal, Attorney General, attorney for respondent (Jane C.
Schuster, Assistant Attorney General, of counsel; Michael A.
Thompson, Deputy Attorney General, on the brief).
E. Krakora, Public Defender, Law Guardian, attorney for minor
(Noel Christian Devlin, Assistant Deputy Public Defender, of
counsel and on the brief).
Judges Fisher, Accurso and Rose.
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.
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.
motion now before us, defendant - through new appellate
counsel- 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.
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.
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.
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. & ...