Opinion
DOCKET NO. A-2439-13T1 DOCKET NO. A-2440-13T1
04-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.L.M.-C. and V.C., III, Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF E.H.C., G.A.C., D.H.C., and H.R.C., minors.
Beatrix W. Shear, Designated Counsel, argued the cause for appellant L.L.M-C. (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs). Howard B. Tat, Designated Counsel, argued the cause for appellant V.C., III (Joseph E. Krakora, Public Defender, attorney; Mr. Tat, on the brief). James D. Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Harris, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors E.H.C. and D.H.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief). Hector Ruiz, Designated Counsel, argued the cause for minors H.R.C. and G.A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ruiz, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-21-13. Beatrix W. Shear, Designated Counsel, argued the cause for appellant L.L.M-C. (Joseph E. Krakora, Public Defender, attorney; Ms. Shear, on the briefs). Howard B. Tat, Designated Counsel, argued the cause for appellant V.C., III (Joseph E. Krakora, Public Defender, attorney; Mr. Tat, on the brief). James D. Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Harris, on the brief). Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for minors E.H.C. and D.H.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief). Hector Ruiz, Designated Counsel, argued the cause for minors H.R.C. and G.A.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Ruiz, on the brief). PER CURIAM
Defendant L.L.M.-C. (Lucy) is the mother of four children who are the subjects of this guardianship matter: E.H.C. (Eva), born December 8, 2003; D.H.C. (Dan), born August 6, 2005; G.A.C. (George), born June 4, 2011; and H.R.C. (Hannah), born May 4, 2012. Defendant V.C. (Vance) is the father of Eva, Dan, and Hannah. We have consolidated defendants' appeals from the order terminating their parental rights and now affirm, substantially for the reasons set forth in the oral opinion of Judge Marvin E. Schlosser.
Fictitious names are used to protect the privacy of the children.
L.B. is the biological father of G.A.C - he failed to appear throughout the litigation, was defaulted, and had his parental rights terminated. He has not appealed that decision.
The facts and procedural history are set forth at length in Judge Schlosser's opinion, which we incorporate by reference and need not be repeated at length. After receiving a number of referrals alleging domestic violence and physical abuse of Eva and Dan that it concluded were unfounded, the Division of Child Protection and Permanency (the Division) opened a case administratively to provide services for the family in August 2008. The Division has been involved in litigation with defendants since March 2009, when a complaint was filed, seeking the care and supervision of Eva and Dan. In the years that followed the Division's initial involvement, the children were exposed to repeated instances of domestic violence and physical abuse.
The instant litigation began in January 2012. After receiving a referral stating Dan was observed with bruises on his lower back, buttocks and stomach, the Division conducted an emergency removal of Eva, Dan and George pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, and filed a verified complaint for custody of the children pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. Although defendants attempt to portray this as an isolated incident of corporal punishment, the record includes numerous reports of visible injuries on Lucy; statements by the children regarding their witnessing domestic violence, including an incident in which Vance threatened Lucy with a knife; and excessive corporal punishment. There were repeated complaints about Vance's aggressive and even threatening behavior toward service providers. Psychological evaluations of Lucy found her to be limited by her level of intellectual functioning, her dependence upon Vance, and her inability to separate herself from him or to protect her children from him. These assessments were borne out by the facts in the record.
There was a prior emergency removal of Eva and Dan in August 2010. After various services were provided to defendants, the children were returned to their parents in May 2011. The Division planned to continue therapy, medication monitoring, and intensive in-home services after this reunification.
Following their removal in January 2012, Eva informed the Division worker that Vance hit Dan "a lot," and when he did so, "you can hear it all through the house." Eva said she was sad and scared and that her parents continued to hit one another at home. As early as 2010, Frank Schwoeri, Ph.D., a psychologist, found both children to be suffering from chronic and severe post-traumatic stress disorder. Eva was not quite seven years old and Dan was five years old at the time.
The children have remained in the Division's custody since January 2012. When she was born, Hannah was placed in the Division's custody and the complaint was amended to include her.
On January 29, 2013, the Division filed a Verified Complaint for Guardianship of the four children pursuant to N.J.S.A. 30:4C-15 through N.J.S.A. 30:4C-24.
Following a four-day trial, Judge Schlosser found the Division satisfied all four prongs of the statutory best interests test, N.J.S.A. 30:4C-15.1(a), and entered an order that terminated the parental rights of Vance to Eva, Dan and Hannah, and the rights of Lucy to all four children.
I
N.J.S.A. 30:4C-15.1(a) authorizes the Division to petition for the termination of parental rights in the "best interests of the child" if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
Lucy argues the Division failed to prove each of these prongs by clear and convincing evidence. Vance argues the Division's proofs were deficient as to the second and fourth prongs of the statutory test. We disagree.
The trial court carefully considered each of these prongs and cited adequate, substantial evidence in the record to support its conclusion that each of the prongs had been proven by clear and convincing evidence.
A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid. ; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
After carefully reviewing the arguments in light of the record and applicable principles of law, we conclude the trial court's findings are supported by adequate, substantial, and credible evidence in the record.
II
In addition to challenging the sufficiency of the evidence, defendants contend the order must be reversed because the Division failed to follow certain mandatory procedures and because counsel was ineffective. We are not persuaded by these arguments.
A
Defendants argue that the following procedural deficiencies are fatal to the judgment. First, they contend the guardianship matter was not "legally commenced." They argue Rule 5:12-1 requires that all matters brought by the Division under N.J.S.A. 30:4C-1 "shall be brought pursuant to Rule 4:67," requiring the action be brought by an order to show cause. R. 4:67-2. Second, defendants maintain the guardianship complaint was not a verified complaint as required by Rule 4:67. Third, defendants contend the Division did not have the pre-requisite care or custody of the children to bring a "best interests" guardianship action under N.J.S.A. 30:4C-15(c) because more than six months had passed since the entry of the order granting the Division care and custody of the four children.
Ordinarily, we will decline to review exceptions raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 19-20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). In New Jersey Division of Youth and Family Services v. F.M., 211 N.J. 420, 445-46 (2012), the Court addressed the timeliness of a procedural challenge in a guardianship matter that was asserted for the first time after a judgment terminating parental rights was entered. The Court stated:
[F.M.] was required to contest whether [the Division] had the authority to exercise "care or custody," at the very least, at or about the time of the filing of the guardianship petition. If there is to be a challenge to [the Division] very right to proceed with a termination-of-parental-rights hearing, it must come before the hearing.
[Id. at 445.]
The Court explained why the delay in asserting such a claim was particularly harmful in a case involving the termination of parental rights. "While time is lost, the lives of the children go on, in this case, in the homes of foster families where the children are forming enduring psychological bonds." Ibid. Further, the Court ruled that, provided the parent "had a sufficient opportunity to assert her claim in the family court, and [the Division] proceeded in good faith, having no reason to anticipate the later challenge to 'care or custody,' the doctrine of laches may be enforced" to bar the challenge based on procedural deficiencies. Ibid.
In this case, the Division assumed care and custody of the children following stipulations by defendants at a fact-finding hearing in March 2012. Vance stipulated he had harmed Dan by striking him with his hand which, the court found, supported a finding of abuse and neglect pursuant to N.J.S.A. 9:6-8.21. Rather than contesting the Division's authority to exercise care and custody of her children, Lucy stipulated she was in need of services pursuant to N.J.S.A. 30:4C-12.
The Division continued to offer resources and services to defendants, including psychological evaluations for both parents, individual therapy for Vance, and domestic violence counseling for Lucy. The children's placement with resource families continued.
The Division filed a guardianship complaint and proceeded with a four-day termination-of-parental-rights hearing, at which it presented the testimony of Linda Jeffrey, Ph.D., a psychologist who conducted psychological evaluations of defendants and bonding evaluations with all four children; Dr. Schwoeri, a clinical psychologist who also conducted psychological evaluations of defendants; Hulon Newsome, Psy.D., who provided counseling services to Vance; Jenna McKinney, the supervised visitation facilitator at Twin Oaks Community Services (Twin Oaks); Jennifer Maher, the coordinator of the supervised visitation program at Twin Oaks; and the following Division employees: Ashley Craven, a family service specialist; Lisa Dyson Braxton, a permanency case manager; and Kathleen Giaquinto, an adoption supervisor. Both defendants testified at the hearing but offered no expert testimony to rebut that presented by the Division.
Conditions for the children also changed while defendants delayed in asserting their claim of procedural deficiencies. Eva and Dan were placed in therapeutic foster care. George was placed with foster parents and Hannah joined him in that placement following her birth. Both George and Hannah have developed a secure attachment to their foster parents, whom they view as their psychological parents. Dr. Jeffrey opined that severing the attachment would result in serious and enduring harm. George and Hannah's foster parents expressed a willingness to adopt all four children, and Eva and Dan began to have weekend visits with their siblings and the foster family. Dr. Jeffrey conducted a bonding evaluation with Eva and Dan and the same foster parents in October 2013, approximately nine months after this action was initiated. Dr. Jeffrey noted the children were still in the process of transitioning and laying down a foundation with the potential adoptive parents but still found that the children displayed a "comfortable and positive rapport" and there was a foundation for the development of a secure attachment, calling it a "good fit." They even referred to them as "Mom and Dad." Thus, during the time in which defendants failed to assert their claim of procedural deficiencies, the attachment of George and Hannah to their foster parents has been fortified and both Eva and Dan have moved along in transitioning to a secure attachment.
In F.M., the Court observed that the mother provided no explanation for her delay in asserting her claim. The Court noted that she was represented by counsel and that the record failed to reveal "whether strategic reasons came into play" in the failure to challenge the proceedings. Id. at 446. The Court concluded:
Her belated attempt to assert the issue comes much too late. Even if there were merit to the claim, it would be questionable public policy to upend a properly conducted guardianship hearing at which the family court has fairly found that termination of parental rights is in the best interests of the children.The Court applied the doctrine of laches to bar the litigation of her procedural challenge. Ibid.
[Ibid.]
Defendants attempt to excuse their delay by arguing that counsel was ineffective for failing to raise this issue at trial. As we discuss, infra, we find no merit in their claim of ineffective assistance of counsel.
Lucy explicitly asserts her counsel was ineffective. Vance adopts her argument in his brief but does not contend his counsel was ineffective.
The factors considered by the Supreme Court in F.M. as supporting the application of the doctrine of laches are present here. Both parents were represented by counsel and had the opportunity to address these issues on a timely basis. The Division proceeded in good faith and had no reason to anticipate this belated procedural challenge. Although defendants now allege procedural deficiencies in how the litigation was initiated, the only claim made as to the integrity of the trial itself is that counsel was ineffective, a claim we deem meritless. The guardianship trial was conducted properly, and Judge Schlosser fairly found the termination of defendants' parental rights to be in the best interests of the children. Moreover, the delay contributed to the development and strengthening of the children's attachment to their resource family. Accordingly, we conclude that the doctrine of laches should be applied to bar the procedural arguments raised.
B.
Finally, we address defendants' claim of ineffective assistance of counsel. Pursuant to Rule 5:12-7, claims of ineffective assistance of counsel in a termination of parental rights case must be brought on direct appeal. Rule 2:10-6 further provides, "The brief submitted by appellate counsel must set forth the factual basis for asserting that trial counsel's performance was deficient and explain why the result would have been different had the lawyer's performance not been deficient."
Lucy argues her counsel was ineffective because he failed to raise the procedural issues and did not demand the Division return her children to her when six months had passed since the entry of the order granting the Division care and custody of the four children. She asserts there is a "reasonable probability" that, in the absence of these errors, the guardianship action against her "might not have gone forward." She does not contend that the result of the guardianship trial would have been different.
Our Supreme Court has determined that the standard applicable to ineffective assistance claims in termination of parental rights cases is the Strickland/Fritz test formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted in State v. Fritz, 105 N.J. 42 (l987). N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Within the criminal context, the error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Castagna, 187 N.J. 293, 315 (2006).
The allegations of ineffectiveness here are that counsel failed to demand the return of the children after the six-month period passed and the failure to challenge the right of the Division to proceed with the guardianship matter. We need not consider whether the arguments satisfy the first prong of the Strickland/Fritz test because they clearly fail to satisfy the second prong. To prevail, defendants would have to make a prima facie showing that the children would have been returned after six months or that the Division would have abandoned the guardianship matter in the face of the procedural challenges. After reviewing the record in this matter, we find these contentions to be not merely speculative but highly unlikely.
The evidence of violence in this home and Lucy's inability to protect her children from the violence was compelling. As we have noted, Eva and Dan were found to suffer from chronic and severe PTSD at the tender ages of five and seven. It was not necessary for the Division to wait until George and Hannah were similarly harmed before taking action. F.M., supra, 211 N.J. at 449. The notion that procedural challenges would have dissuaded the Division from pursuing its efforts to protect the children is unconvincing. Given the ample evidential support for Judge Schlosser's decision, we are further unable to conclude that any of the claimed deficiencies in counsel's performance led to an unjust result.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION