Opinion
DOCKET NO. A-5362-11T1
03-27-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. M.L., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.L., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.L., a minor (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-0132-11.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kristina Miles, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for S.L., a minor (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
M.L., who is serving a life sentence for murder in Pennsylvania, appeals from the trial court order terminating his parental rights to S.L., a daughter born to him and C.M. on October 30, 2007, and granting guardianship to the Division of Youth and Family Services (Division). The Law Guardian supports the termination on appeal, as it did before the trial court. On appeal, M.L. raises two points:
POINT ONE
M.L. WAS DENIED HIS RIGHT TO FUNDAMENTALLY FAIR PROCEDURES WHEN HE WAS PREVENTED BY THE COURT FROM APPEARING DURING THE TRIAL IN WHICH HIS PARENTAL RIGHTS WERE TERMINATED.
POINT TWO
THE TRIAL JUDGE IMPROPERLY CONSIDERED [M.L.]'S PRESENT INCARCERATION WHEN WEIGHING THE STATUTORY FACTORS.
Because we are satisfied the court failed to undertake the necessary steps to produce M.L. at trial or, alternatively, failed to undertake the necessary steps to ensure M.L.'s participation at trial through other means, we reverse and remand for a new trial.
Throughout the pre-trial proceedings leading up to the guardianship trial, M.L., who was represented by counsel, participated by telephone. Court staff advised the trial judge that Pennsylvania prison officials, whose identities were never disclosed during the proceedings, lacked the manpower to transport M.L. to trial, and M.L. was not permitted to be on the telephone for more than one hour. On November 16, 2011, at which time M.L. appeared by phone, the following colloquy occurred between defense counsel, the court, and an unidentified person from family case management:
[M.L.'S COUNSEL]: Thank you, Judge. The only concerns I have at this point are for [M.L.]'s ability to participate. As you're aware, he has only been able to participate by phone throughout the pendency of this litigation. I assume our next date is going to be a trial date.
I think he has a right to participate and I think he has a right to participate even beyond the phone and I don't know how that can be accomplished, but I just want to put on the record that he has a fundamental right to participate in his own . . . trial.
I believe from speaking with court staff that there's an issue with not even being able to be on the phone for a full day, but the argument right now is that he needs to be present --
THE COURT: Okay.
[M.L.'S COUNSEL]: -- and able to participate in his trial.
FAMILY CASE MANAGEMENT: Your Honor, I did speak to . . . I believe it was one of the wardens probably about a week or two ago and she did express to me that they will not allow him to appear by, one, video, and, two, by telephone for more than an hour because I told her it was scheduled for three days, and they could not give me any other information besides absolutely not, he cannot appear by video for --
THE COURT: Well, then we cannot do the trial. He has the right to participate in the trial. He's in Pennsylvania?
. . . .
[C.M.'S COUNSEL]: . . . Pennsylvania never turns over people.
THE COURT: No, I know. I know. But I do have concerns with regard to they don't have video conferencing available?
FAMILY CASE MANAGEMENT: No.
[M.L.] Yes, they do.
. . . .
FAMILY CASE MANAGEMENT: And I will look at the notes. I believe it was the warden or, you know, someone very high up over there and I was told that even for an hour for him to be on the phone is way too long.
THE COURT: Okay. Well, I mean, he will be represented by counsel but let's call the warden. Get the warden's name and give -- let's see if we can arrange even some type of video conferencing.
There's no way we'll be able to get him here and being that there's no possibility of parole it's not as if I can adjourn the trial with an anticipated release date.
The trial commenced the following month on January 17, 2012. At that time, an unidentified representative from family case management advised the court that a telephone call had been made to the Pennsylvania prison where M.L. was incarcerated, and based upon a conversation with an unidentified caseworker, M.L. was "off the cell block. There's no one else to transport the inmate so I didn't -- I've been waiting for a phone call (indiscernable)." The court directed the representative to check on the matter and then placed on the record the following:
Okay. And I had put on the record[,] I believe in our last court appearance[,] the issue with regard to continuing with this trial even though dad is not present, and as indicated, [M.L.] is incarcerated.
My understanding is he's serving a life sentence in Pennsylvania. Although we were able to make arrangements in the past with having him available by telephone with the jail, those were for short hearings.
Although the [c]ourt had tried, we had hoped to see if we could have [M.L.] either writted here for this trial and/or to participate by telephone or by video[,] and the jail has repeatedly rejected those requests, stating that they did not have the manpower. Certainly they would not writ him here and they did not have the manpower to monitor him while he stayed there appearing by telephone and/or video.
The [c]ourt balanced that with [S.L.]'s right to permanency, as well as being mindful of the fact that [M.L.] is represented by counsel, has been throughout these proceedings, and that his attorney is present today at the trial and certainly has the ability to cross-examine witnesses, challenge evidence, and present evidence and witnesses brought by [M.L.] on [M.L.]'s behalf[.] [O]kay.
Is there anything that anybody wanted to address specifically with regard to that issue of [M.L.] not being present physically for the trial? Okay.
In response, defense counsel advised that he had nothing further to add, stating: "I mean, I think I've made all of the arguments at the prior hearings[,]" which arguments expressed M.L.'s position that he was entitled to participate in the trial. The court proceeded to conduct the trial in M.L.'s absence.
We review the constitutional sufficiency of trial procedures pursuant to an abuse of discretion standard. N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 468 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). To the extent that such a decision misapprehends the relevant law, however, no deference is appropriate. Manalapan Realty v. Twp. of Manalapan, 140 N.J. 366, 378 (1995).
The Fourteenth Amendment to the United States Constitution prohibits states from depriving any person of "life, liberty, or property, without due process of law[.]" U.S. Const. amend. XIV, § 1. The essence of procedural due process is notice and an opportunity to be heard. State v. Garthe, 145 N.J. 1, 8 (1996). There are no bright-line rules to judge the constitutionality of a particular procedure employed in a proceeding. "It is a flexible concept and calls for such procedural protections as the particular situation demands." M.Y.J.P. supra, 360 N.J. Super. at 464. The United States Supreme Court has guided our analysis by instructing courts to weigh the following factors:
[1] the private interest that will be affected by the official action;
[2] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally,
[3] the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. at 893, 903, 47 L. Ed. 2d 18, 33 (1976).]
We considered these factors in M.Y.J.P., supra, where the parent, a Haitian national, resided in Haiti at the time the guardianship trial occurred. 360 N.J. Super. at 432. She alleged, in addition to lack of in personam jurisdiction, that the court violated her due process rights when it failed to secure her actual presence at the trial or, alternatively, to arrange her telephonic participation. Id. at 463. We rejected these arguments.
We recognized that "our Supreme Court has held that terminating parental rights implicates fundamental liberty interests that are protected under the United States Constitution . . . [and] that protection continues even when a child is placed in foster care." Id. at 466 (internal quotation and citations omitted). However, we noted that guardianship proceedings are civil in nature and concluded "[t]he requirements of due process do not confer a constitutional right of confrontation or mandate a parent's presence at the trial." Id. at 467. What we determined is constitutionally mandated, however, are procedures "appropriate and adequate to protect the interests at stake." Id. at 468. In other words, the constitutional mandate is to employ procedures which ensure meaningful participation in the process. Ibid. Applying this reasoning, we were satisfied the trial judge in M.Y.J.P. took the necessary steps to protect the parent's interests:
[T]he trial court could not provide for M.Y.J.P.'s appearance or for her telephonic participation. Instead, the court carefully and thoughtfully crafted a procedure in which M.Y.J.P., who was represented by aggressive, exceptionally competent counsel, was given the opportunity to testify by de bene esse deposition, review the trial transcripts, consult with her attorney, engage in deferred cross-examination of the Division's witnesses, and present rebuttal evidence. There has been no showing that her able counsel's cross-examination was adversely affected by the fact that his client was not present in the courtroom. In fact, through her deposition taken during the course of the trial, M.Y.J.P. was able to address fully any issue raised in the proceedings, including her decision to allow S.J.A. to remain in New Jersey. Thus, the process accorded to M.Y.J.P. was adequate to protect her interests, and there is no indication that any procedural safeguards could have been implemented that would have been more fulfilling.
[Id. at 469.]
Here, while recognizing, in the November 17, 2011 proceeding, M.L.'s right to participate in the trial, at the time trial commenced in January, the trial court accepted the representation from a member of the court's staff that the Pennsylvania prison did not have the manpower to transport M.L. and that telephone participation was also unavailable. Notwithstanding that more than one month elapsed between the time the trial date was scheduled and when trial commenced, the record does not reflect the specific efforts undertaken to ensure M.L.'s participation and, once those efforts proved unsuccessful, alternative measures attempted to ensure M.L.'s meaningful participation. For example, it appears no consideration was given to adjourning the trial following the presentation of the State's case in order to afford M.L. an opportunity to review the direct and cross-examination of the witnesses with defense counsel, and then permitting, if necessary, defense counsel a further opportunity to cross-examine witnesses based upon that review.
Additionally, it does not appear the court considered permitting M.L., if he chose to testify on his own behalf, to do so by deposition. As we have previously found, the procedures a trial judge employs to ensure participation by a willing party are committed to the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of that discretion. Id. at 468. Where, however, as is the case here, the record is devoid of the specific details surrounding the effort to produce M.L. for the hearing or to otherwise ensure his participation, we are constrained to reverse and remand for a new trial. This is particularly necessary when the record does establish that when given the opportunity to telephonically participate, M.L. did so on every occasion, evidencing his desire to participate in the proceedings.
Reversed and remanded for a new trial. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION