Opinion
DOCKET NO. A-3242-14T1
02-07-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.M., Defendant-Appellant, and J.S. Defendant. IN THE MATTER OF A.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Juneau Bezer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Yannotti and Fasciale. On appeal form Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-143-15. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Angela Juneau Bezer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Todd Wilson, Designated Counsel, of counsel and on the brief). PER CURIAM
Defendant appeals from a December 8, 2014 fact-finding order concluding that he sexually abused his daughter (the daughter). We affirm.
The daughter was born in 2001. Her mother is not involved in the case.
In July 2014, the daughter reported defendant had sexually abused her on two occasions by placing his fingers inside her vagina. The Division of Child Protection and Permanency (the Division) performed an emergency Dodd removal of the daughter from her home. The court then granted the Division's request for care, custody, and supervision, and ordered defendant to undergo various testing and counseling.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82. --------
In August 2014, the Division's pediatric expert in child abuse (the doctor) examined and interviewed the daughter. During the interview, the daughter described for the doctor the details of what happened during the two incidents, which had occurred when the daughter was twelve- and thirteen-years-old. Thereafter, the court continued custody of the daughter with the Division, scheduled an interview of the daughter, and listed the matter for a fact-finding hearing.
In December 2014, the court interviewed the daughter in chambers while the attorneys listened from the courtroom. Defendant's counsel had agreed that defendant would not be in the courthouse during the interview. During the interview, the daughter told the judge what had happened to her. Later that month, the judge conducted the hearing.
At the hearing, the judge considered what the daughter had said during the interview, and took testimony from the doctor and defendant's mother. The judge believed what the daughter had stated and concluded the other two witnesses were credible. As to defendant's mother, the judge found that her testimony was not material to the allegations of sexual abuse. The judge then issued an oral opinion finding, based upon a preponderance of the evidence, that defendant had sexually abused the daughter on two occasions.
On appeal, defendant argues his trial counsel rendered ineffective assistance of counsel by allowing the daughter's interview to occur in his absence. Defendant contends this arrangement deprived him of his right to cross-examine the daughter. Defendant also asserts that his counsel was ineffective by failing to introduce into evidence at the fact-finding hearing a statement the daughter had given to the police. Defendant maintains there is insufficient evidence to support the judge's findings.
Parents who are subject to Title 9, N.J.S.A. 9:6-8.21, abuse and neglect proceedings "are entitled to the effective assistance of counsel[.]" Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 609 (App. Div. 2011) (citing N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07 (2007)). In B.R., the New Jersey Supreme Court adopted the same two-prong standard established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by the Court in State v. Fritz, 105 N.J. 42 (1987), when evaluating claims of ineffective assistance of counsel by litigants who have had their parental rights terminated. B.R., supra, 192 N.J. at 308-09.
A defendant alleging ineffective assistance of counsel must fulfill both prongs of the Strickland test:
(1) counsel's performance must be objectively deficient — i.e., it must fall 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).]
As to the first prong, "the test is whether counsel's conduct fell below an objective standard of reasonableness." N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 347 (App. Div.) (quoting State v. Savage, 120 N.J. 594, 614 (1990)), certif. denied, 192 N.J. 296 (2007). This requires a litigant to "demonstrate that the attorney's actions 'were beyond the wide range of professionally competent assistance.'" Ibid. (quoting Savage, supra, 120 N.J. at 614). It has been long-settled that "'counsel is strongly presumed to have rendered adequate assistance' and to have made 'all significant decisions in the exercise of reasonable professional judgment.'" Savage, supra, 120 N.J. at 614 (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).
As to the second prong, prejudice to the litigant, a "reasonable probability" that the results of the matter would have been different means a "probability sufficient to undermine confidence in the outcome." B.H., supra, 391 N.J. Super. at 348 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). A court predicates its analysis on the "fundamental fairness of the proceeding whose result is being challenged." Ibid. (quoting Strickland, supra, 466 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699).
We begin by addressing defendant's contention that his trial counsel rendered ineffective assistance of counsel by consenting to the in camera interview in his absence.
Pursuant to Rule 5:12-4(b), the judge had the discretion to take testimony from the daughter privately in chambers. N.J.S.A. 2A:84A-32.4 "provides the framework for taking a child's closed circuit testimony in abuse and neglect proceedings." N.J. Div. of Child Prot. and Permanency v. C.W., 435 N.J. Super. 130, 141 (App. Div. 2014). Section "a" of the statute permitted the judge to take testimony of the daughter in camera outside the presence of defendant. "[P]ublic policy requires the judiciary to prevent further victimization or traumatization of young children called to testify in court proceedings[,]" with the Court cautioning "a 'child's fear . . . prevent[s] the proper functioning of the truth-finding process[.]'" Id. at 142 (third and fourth alteration in original) (quoting State v. Smith, 158 N.J. 376, 387 (1999)).
Here, defendant fails to meet either prong of Strickland as to the in camera interview. The judge permitted counsel to submit proposed questions for the court to ask the daughter. Defendant had full knowledge of the facts months before the interview and had time to prepare questions for the judge. The judge explained that she would ask the prepared questions and then would ask counsel if they had follow-up questions based on the daughter's answers. The judge was also well aware of the purported inconsistencies in the daughter's testimony that defendant now maintains would have impeached the credibility of her statements during the interview. The verified complaint and investigative material reflect them.
Defendant also asserts that his trial counsel was ineffective by failing to introduce certain evidence at the fact-finding hearing. Defendant contends that counsel failed to introduce into evidence a videotaped statement that the daughter gave the police, and he makes bald assertions that counsel did not present additional evidence and testimony from other witnesses.
In making these claims of ineffective assistance counsel, defendant must provide reasons "why the result would have been different had the [trial] lawyer's performance not been deficient." B.R., supra, 192 N.J. at 311. This may require an "evidentiary proffer" where appropriate. Ibid. Moreover, "if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance." Ibid.; see also N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010) (holding that a "contention of ineffective assistance due to the failure to call witnesses . . . is unsupported [if an appellant] fails to provide certifications from the witnesses relating the substance of the omitted testimony, along with arguments regarding relevance").
Defendant suggests on appeal that his counsel should have introduced numerous witnesses that would have testified to his parenting, a social worker who would have testified that the daughter "apologized" to him during their single meeting pending litigation, and the daughter's therapist who would have testified that the daughter did not report the sexual abuse to the Division. Defendant did not produce certifications from these witnesses regarding the substance of their proffered testimony. As a result, such claims of ineffectiveness are unsupported.
As to the daughter's videotaped statement, defendant tenuously argues the relevance of this evidence. On this record, we are unable to discern any credible reason for how the daughter's statement would have made a difference in the judge's findings. See B.R., supra, 192 N.J. at 311.
We reject defendant's further claims of ineffectiveness, that his counsel did not cross-examine the doctor or question defendant's mother about the daughter's purported inconsistencies and apology. There is no credible evidence in the record that an apology took place. The only evidence offered for such an apology on appeal are certifications from defendant and defendant's mother. Even if the purported apology took place, this claim amounts to an attack on counsel's trial tactics.
When alleging deficiencies in particular trial tactics, "a defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." State v. Hess, 207 N.J. 123, 147 (2011) (quoting Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "'[J]udicial scrutiny of counsel's performance must be highly deferential' . . . [and] must avoid second-guessing defense counsel's tactical decisions and viewing those decisions under the 'distorting effects of hindsight.'" State v. Marshall, 148 N.J. 89, 157 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We conclude that defendant's assertions rise to "merely [] matters of trial strategy" and as such, are insufficient to support a claim of ineffective assistance of counsel. Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963)). Had counsel introduced the evidence that defendant now contends was relevant, "it is unlikely that such proofs would have altered the court's reasoning or resulted in a different outcome." B.H., supra, 391 N.J. Super. at 351.
Finally, we reject defendant's assertion that there was insufficient evidence to support the judge's findings of fact. Findings of the trial judge are binding on appeal if they are supported by "adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Inv'rs. Ins. Co. of Am., 65 N.J. 474, 484 (1974). Such is the case here.
The judge interviewed the daughter, and took testimony from the doctor and defendant's mother. The judge found the daughter and doctor were credible witnesses. The judge rendered a comprehensive oral decision and referred extensively to the testimony of these witnesses. As to the doctor, the judge noted that she performed a thorough examination and interview of the daughter, and the judge accepted the doctor's "uncontroverted expert opinion" that the incidents of sexual assault occurred. As to the daughter, the judge stated that her testimony was "forthcoming," that she "acted and spoke appropriately for a [thirteen]-year-old," and the judge found "she was telling . . . the truth." The court further concluded that the daughter's statements during the in camera interview were corroborated by the doctor's report and testimony.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION