Opinion
DOCKET NO. A-2291-12T3
12-17-2015
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. N.G., Defendant-Appellant, and C.L., Defendant. IN THE MATTER OF C.L. and C.G., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (James Harris, Assistant Attorney General, of counsel; Jennifer Krabill, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Sean Lardner, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FN-06-38-11. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (James Harris, Assistant Attorney General, of counsel; Jennifer Krabill, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Sean Lardner, Designated Counsel, on the brief). PER CURIAM
Defendant N.G. ("Mother") appeals the trial court's finding that she abused or neglected her baby C.G. when she took cocaine and opiates while she was pregnant, which resulted in C.G. developing neonatal abstinence syndrome and his hospitalization for morphine treatments. We affirm.
I.
In 2010, the Division received a referral alleging that Mother had tested positive for benzodiazepines, opiates, and cocaine during her pregnancy with C.L. The Division filed a complaint against Mother and defendant C.L. (Father), and was granted temporary custody of C.L. The trial court scheduled a fact-finding hearing to determine if Mother had abused C.L.
Prior to that hearing, Mother gave birth to C.G. in July 2011. C.G.'s August 2011 hospital "Discharge Summary," dictated by Dr. Larry Herrera, indicated C.G.'s medical history, the results of his physical examination, relevant diagnostic data, and an assessment on discharge. Dr. Herrera's discharge summary included the following:
HISTORY:
The patient is an infant with neonatal abstinence syndrome, that was born on July [] 2011, to a [Mother] with a history of drug abuse, including the use of cocaine and opiates . . . . The infant was started on oral Morphine, secondary to symptoms consistent with neonatal abstinence syndrome. The initial Morphine dose was 0.18 mg q 3 hours; this was started on July 16, 2011.
The infant was transferred to the pediatric hospital service for continued management and weaning of the Morphine. During the hospital stay that was from July 14, 2011 through August 5, the infant was gradually weaned off of the Morphine . . . .
ASSESSMENT:
A now 23-day-old infant with a history of neonatal abstinence syndrome . . . .
Based on this harm to C.G. from Mother's use of drugs during her pregnancy, the Division filed a second-amended complaint against Mother and Father seeking custody of both children.
A fact-finding hearing was held on January 23, 2012. Mother was not present for this hearing and had not been in touch with her counsel since August 30, 2011. The Division submitted the following documentary evidence: open drug indictments against Father and Mother, and the discharge summary, which was certified as a business record. Mother's counsel agreed to their admission. The Division also attempted to admit medical records relating to the birth of C.L., but Mother's counsel successfully objected to those records because they were not certified. The Division did not present testimony.
At the close of the fact-finding hearing, Judge Benjamin C. Telsey rendered an oral opinion finding that the Division, by a preponderance of the evidence, had proven Mother abused or neglected C.G. under N.J.S.A. 9:6-8.21(c). The court ruled that the harm to C.G. could not be imputed to C.L., and that the Division failed to prove that Mother had abused or neglected C.L. Because the open drug indictments pertained to conduct allegedly occurring prior to the birth of either child, the court found no basis for holding that Father had abused or neglected either child. The court incorporated its findings in a January 23, 2012 fact-finding order.
Mother appealed. We remanded the case to the trial court for clarification of the trial record. The trial court entered an order clarifying the record by indicating which exhibits had been entered into evidence. We remanded again, this time to correct the January 23, 2012 fact-finding order, which incorrectly stated that C.G. had been hospitalized for three months. The trial court issued an amended order correctly reflecting that C.G. was hospitalized for three weeks.
Mother raises the following issues on appeal:
POINT I: THE TRIAL COURT'S FINDINGS ARE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE WITHIN THE RECORD BELOW AND TO SUSTAIN THE TRIAL COURT'S FINDINGS WOULD RESULT IN A GRAVE INJUSTICE BECAUSE: (1) DCPP PRESENTED NO FACT OR EXPERT WITNESSES DURING THE FACT-FINDING HEARING; (2) THE PRIMARY EVIDENCE AGAINST THE DEFENDANT WAS A HOSPITAL DISCHARGE SUMMARY THAT WAS NOT AUTHENTICATED; AND (3) MEDICAL OPINIONS AND STATEMENTS CONTAINED WITHIN THE HOSPITAL DISCHARGE SUMMARY CONSTITUTED INADMISSIBLE HEARSAY THAT SHOULD HAVE BEEN EXCLUDED FROM THE PROCEEDINGS.
POINT II: BECAUSE HER ATTORNEY STIPULATED TO THE ADMISSION OF THE CERTIFIED HOSPITAL DISCHARGE SUMMARY INTO EVIDENCE, THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE (1) THAT DOCUMENT WAS THE ONLY EVIDENCE OF ALLEGED ABUSE OR NEGLECT THAT WAS PRESENTED AGAINST HER DURING THE FACT-FINDING HEARING; (2) SHE WAS NOT CONSULTED PRIOR TO HER ATTORNEY'S STIPULATION; AND (3) THE DOCUMENT CONTAINED UNSUPPORTED HEARSAY ASSERTIONS OUTSIDE OF THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE, WHICH SHOULD HAVE BEEN CHALLENGED.
II.
Mother contends the trial court's findings were not supported by sufficient evidence. "Because of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Accordingly, a reviewing court will not disturb a family court's abuse or neglect findings as long as they are "supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We must hew to that standard of review.
"If an expectant mother's drug use causes actual harm to the physical, mental, or emotional condition of a newborn child, a finding of abuse or neglect is appropriate." N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 8 (2013). "The Division can show that a newborn has been impaired in a number of ways. For example, proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Id. at 22.
Here, the Division's evidence established that, as a result of Mother's use of cocaine and opiates during pregnancy, C.G. suffered actual harm. C.G. developed neonatal abstinence syndrome. "Neonatal abstinence syndrome is defined as '[a]ny of the adverse consequences in the newborn of exposure to addictive or dangerous intoxicants during fetal development.'" N.J. Div. of Child Prot. & Permanency v. Y.N., 220 N.J. 165, 170 n.5 (2014) (quoting Taber's Cyclopedic Med. Dictionary 1158 (Donald Venes et al. eds., 22d ed. 2013)). As a result, C.G. was required to remain in the hospital for about three weeks to treat the withdrawal symptoms of his neonatal abstinence syndrome with morphine, from which he then had to be weaned.
In Y.N., the newborn "was diagnosed with neonatal abstinence syndrome as a result of his withdrawal symptoms from methadone" that had been legally prescribed and taken by his mother during pregnancy. Id. at 170. Here, there is no claim Mother legally took the cocaine and opiates she passed to C.G. during pregnancy.
The Division's evidence here was much stronger than in A.L., where cocaine metabolites had been found in the newborn's first stool, but "[t]he baby's health was otherwise normal, and he was discharged from the hospital after two days." A.L., supra, 213 N.J. at 8. There, "[t]he Division admittedly presented no evidence of actual harm to [the child] and d[id] not challenge the trial court's finding that there were no 'ill effects' to the child." Id. at 26; see also N.J. Div. of Youth & Family Servs. v. N.D., 435 N.J. Super. 488, 493 (App. Div. 2014) (newborn's urine "tested positive for cocaine at birth but there was [concededly] no evidence that he was suffering from withdrawal"). By contrast, as set forth above, the Division here presented evidence of actual harm.
Mother argues that the Division was required to proffer live expert medical testimony. However, expert medical testimony is not a requirement, but only one method of showing actual harm to a child based on drug use during pregnancy. The Division "must prove present or future harm to a child by a preponderance of the evidence." A.L., supra, 213 N.J. at 22. "The Division can show that a newborn has been impaired in a number of ways. For example, proof that a child is suffering from withdrawal symptoms at birth could establish actual harm." Ibid. at 22. "That information may come from any number of competent sources including medical and hospital records, health care providers, caregivers, or qualified experts." Id. at 23 (emphasis added). Here, the Division showed actual harm to C.G. through a competent source that has been explicitly permitted by our Supreme Court, namely, medical and hospital records. The A.L. Court noted that where "the evidence presented does not demonstrate actual or imminent harm, expert testimony may be helpful." Id. at 28. Nonetheless, the Court added: "To be clear, we do not require expert testimony in abuse and neglect actions. In many cases, an adequate presentation of actual harm or imminent danger can be made without the use of experts." Id. at 28.
Despite this on-point ruling by the Supreme Court, Mother mistakenly cites an inapposite case, N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77 (App. Div. 2008). In I.Y.A., we noted that "a determination that children are parentified is generally based on expert testimony or reports," rather than a caseworker's testimony, because that concept was not uniformly accepted. Id. at 92. By contrast, the discharge summary here contained a standard diagnosis provided by a medical doctor, not a layperson.
The discharge summary also notes that C.G. was born with respiratory distress, and had "2 short episodes of breathing pauses of 9 seconds with no bradycardic episodes." Mother argues that there may have been other reasons why C.G. suffered respiratory distress, further necessitating an expert and the opportunity to cross-examine that expert. However, the trial court did not rely on the respiratory distress or breathing episodes, which the discharge summary did not expressly attribute to C.G.'s neonatal abstinence syndrome.
III.
Mother next challenges the admission of C.G.'s discharge summary. The Division offered Exhibit P-9, which was comprised of the discharge summary and other medical records relating to the treatment of C.G. during his approximately three-week hospitalization. Exhibit P-9 also included a "Certification of Medical Records" certifying that the discharge summary and other medical records were "true and complete reproductions" and were business records of the hospital. When the Division moved to enter Exhibit P-9 into evidence, Mother's counsel agreed to its admission, stating, "I did have a chance to review P-9, and it is certified; I have no objection to that being admitted."
On appeal, Mother attacks the admissibility of Exhibit P-9 for the first time. However, because Mother's counsel agreed to the admission of this evidence at trial, she is barred from challenging its admissibility now, under the doctrine of invited error. "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (internal quotation marks omitted). "In other words, if a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." Ibid.
"'The doctrine of invited error operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error.'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340 (2010) (citation omitted). "The doctrine of invited error 'is based on considerations of fairness and preservation of the integrity of the litigation process.'" Ibid. (citation omitted).
In M.C. III, the Division offered medical records into evidence and defense counsel stated he had no objection. Id. at 339-40. On appeal, however, the defendant in M.C. III claimed the medical records were inadmissible under N.J.S.A. 9:6-8.46(a)(3) or Rule 5:12-4(d) and contained inadmissible hearsay. Id. at 337-39. Our Supreme Court found "no need to address those assertions of error." Id. at 339. The Court held "that consistent with the doctrine of invited error, on appeal, the [defendant] may not protest the admission of the documents after he agreed to their admission at trial." Id. at 332.
Similarly, Mother's counsel explicitly agreed to the admission of the discharge summary. For all the reasons set forth in M.C. III, Mother "is barred by the doctrine of invited error from contesting for the first time on appeal the admission of the [discharge summary]." Ibid.
"In spite of our invocation of the doctrine of invited error, we would not automatically apply the doctrine if it were to 'cause a fundamental miscarriage of justice.'" Ibid. (citation omitted). Here, for the reasons set forth below, "we are convinced that this case presents no fundamental injustice that would warrant relaxing the invited error doctrine." Ibid.
IV.
Finally, Mother alleges her trial counsel was ineffective in agreeing that C.G.'s hospital records were admissible. "[A] defendant has a right to [the effective assistance of] counsel when a complaint is filed against him or her charging abuse and neglect and threatening the individual's parental rights." N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 345 (App. Div.), certif. denied, 192 N.J. 296 (2007). In determining whether that right has been violated, we apply the test "as set forth in Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]." Id. at 346; see N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (adopting the Strickland test in parental termination cases). Thus, a parent claiming ineffectiveness must establish that: "(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 698).
To show a reasonable probability that the outcome would have been different, Mother must show at the very least that, if trial counsel had objected to the admission of the certified hospital records, the objection would have been sustained. Mother has failed to make that showing.
First, the medical records, including C.G.'s discharge summary, were admissible under N.J.R.E. 803(c)(6) as business records of the hospital. N.J.R.E. 803(c)(6) creates a hearsay exception for "Records of regularly conducted activity," and provides:
The admission of medical records in proceedings brought by the Division is also authorized in Rule 5:12-4(d) and N.J.S.A. 9:6-8.46(a)(3). However, it is sufficient if the medical records were properly admitted under N.J.R.E. 803(c)(6), so we consider only Rule 803(c)(6). In any event, "a report offered into evidence under Rule 5:12-4(d) may be admitted only if it satisfies the prerequisites for admissibility set forth in N.J.R.E. 803(c)(6)." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010). Similarly, N.J.S.A. 9:6-8.46(a)(3) has been interpreted in light of N.J.R.E. 803(c)(6)'s "business-records exception to the hearsay rule." M.C. III, supra, 201 N.J. at 346.
A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of
preparation indicate that it is not trustworthy.
Here, the discharge summary, along with all other medical records contained within Exhibit P-9, were accompanied by a certification that they had been "kept in the regular course of business" of the hospital, that "it was in the regular course of business to make such records," and that they were "made at the time of the condition and/or occurrences reported therein or within a reasonable time thereafter and accurately reflect[ed] the condition and/or occurrence."
Mother argues that, even if the medical records were business records, they were not properly authenticated as required by N.J.R.E. 803(c)(6) and N.J.S.A. 9:6-8.46(a)(3), because N.J.S.A. 9:6-8.46(a)(3) requires that "a certification by someone other than the head of the hospital or agency shall be accompanied by a photocopy of a delegation of authority signed by both the head of the hospital or agency and by such other employees." Although the absence of such a photocopy might affect the admissibility of the medical records under N.J.S.A. 9:6-8.46(a)(3), N.J.R.E. 803 has no such requirement. Under Rule 803(c)(6), it is sufficient to present a certification from the records "custodian or other qualified witness." N.J.R.E. 803(c)(6), 1991 Supreme Court Committee Comment; see also Gunter v. Fischer Sci. Am., 193 N.J. Super. 688, 692 (App. Div. 1984). Here, the certification stated it was signed by "the duly authorized medical records custodian or other qualified witness." That was sufficient under Rule 803(c)(6). See, e.g., N.J. Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407, 413-14 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003).
Mother also contends that the medical opinion of Dr. Herrera contained in the discharge summary was inadmissible expert opinion. Mother cites N.J.R.E. 803(c)(6), which provides that "opinions or diagnoses" within business records are admissible "subject to [N.J.R.E.] 808." N.J.R.E. 808 provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
Here, the circumstances involved in Dr. Herrera's rendering of the opinion tended to establish its trustworthiness. First, Dr. Herrera was not a retained expert, but one of C.G.'s treating physicians. The doctor's sole motive, duty, and interest was to render treatment to C.G. Second, no litigation was contemplated by Dr. Herrera. Indeed, the Division did not file its amended complaint including C.G. until after Dr. Herrera had completed the discharge summary. Third, Dr. Herrera conducted his own physical examination of C.G. He thus had "actual knowledge," and apparently also received "information supplied by" persons with actual knowledge. N.J.R.E. 803(c)(6).
Fourth, Mother has not shown that the opinion that C.G. suffered from neonatal abstinence syndrome was so complex or so likely to be inaccurate as to require exclusion under N.J.R.E. 808. See N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 174 (App. Div. 2012) (distinguishing opinions based on "the exercise of subjective judgment rather than a straightforward, simple diagnosis based upon objective criteria or one upon which reasonable professionals could not differ"). "[C]ase law in our State has traditionally admitted 'routine' findings of experts contained in medical records that satisfy the business record exception." James v. Ruiz, 440 N.J. Super. 45, 63 (App. Div. 2015) (quoting State v. Matulewicz, 101 N.J. 27, 32 n.1 (1985)). Furthermore, "in this case there is no contrary evidence or expert testimony contesting the diagnoses." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 95 (App. Div. 2007), aff'd, 197 N.J. 563 (2009); cf. James, supra, 440 N.J. Super. at 72-73 (finding a radiologist's diagnosis of a disc bulge was complex where the "defendant's board-certified orthopedic expert disagreed with his findings").
Mother relies on M.G., where we held that "when the expert is not produced as a witness, the rule requires the exclusion of his or her expert opinion, even if contained in a business record, unless the trial judge makes specific findings regarding trustworthiness." M.G., supra, 427 N.J. Super. 154, 174. However, M.G. did not involve an instance where defendant previously agreed to the admission of the evidence. See id. at 172 n.11 (distinguishing M.C. III "[b]ecause counsel did object" in M.G.); see also B.M., supra, 413 N.J. Super. at 128-29 (distinguishing M.C. III because counsel in B.M. was not asked if he objected, and did not consent to the record's admission). Importantly, "by consenting to the admission of the documents, defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides." M.C. III, supra, 201 N.J. at 341.
Most importantly, Mother has not shown that, if trial counsel had objected, the Division would have been unable or unwilling to produce Dr. Herrera or another physician to testify to the diagnosis of neonatal abstinence syndrome. "[I]f defense counsel had objected to the [medical record] and other documents, and the trial court agreed with those objections, the Division could have taken steps to satisfy any evidentiary requirements needed for the admission of the documents or presented a witness or witnesses in place of the documents. Ibid. Here, the Division argues it would have sought a continuance to call the doctor to testify. Mother has not shown a reasonable probability that the Division would not have been able to present a doctor's testimony. Thus, Mother has failed to show that "the result would have been different" had trial counsel objected to the admission of the discharge summary. B.R., supra, 192 N.J. at 311; see also, N.J. Div. of Youth & Family Servs. v. N.S., supra, 412 N.J. Super. at 593, 643 (App. Div. 2010).
Indeed, the record indicates that trial counsel's decision not to object was in part to avoid the presentation of live testimony. At the January 24, 2012 fact-finding hearing, the Division was hamstrung because even its caseworkers were unavailable due to training. Rather than protest the Division's lack of live witnesses, trial counsel argued that the only evidence before the trial court was Exhibit P-9, which showed that C.G. was discharged as a healthy child. Counsel pointed out that "simply using drugs while you're pregnant does not rise to abuse or neglect," and that "the Division has nothing before your Honor with which you could make a finding of abuse and neglect" regarding Mother's child C.L. Counsel concluded that "the Division has not met its burden" to show abuse or neglect. "Particularly where defense counsel may have made a strategic decision to try the case based on the documents, instead of possibly facing a witness's direct testimony, it would be unfair to the Division to reverse on this issue." M.C. III, supra, 201 N.J. at 342.
Indeed, the trial court agreed that with regard to C.L. there was nothing to show he had tested positive for drugs at birth or suffered withdrawal symptoms. The court agreed with Mother's counsel that the Division had failed to meet its burden of proof to show that Mother had abused or neglected C.L.
Had trial counsel objected to C.G.'s discharge summary and the Division had called Dr. Herrera or another doctor to present live testimony, trial counsel would have been deprived of the argument that the discharge summary was insufficient to carry the Division's burden of proof. Such an objection, and the resulting continuance, also could have resulted in the Division obtaining medical testimony to support its allegations regarding C.L. "'We cannot fault defense counsel for not insisting that the State call a live witness who might have highlighted weaknesses in the defense.'" State v. Williams, 219 N.J. 89, 101 (2014) (citation omitted), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).
Trial counsel's strategy successfully prevented a finding that Mother had abused or neglected C.L. It was not successful regarding C.G., as the trial court chose to credit the discharge summary and was satisfied that it showed that C.G. was an abused or neglected child. However, "[m]erely because a trial strategy fails does not mean that counsel was ineffective." State v. Bey, 161 N.J. 233, 251 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). "'Judicial scrutiny of counsel's performance must be highly deferential' . . . . [and] must avoid second-guessing defense counsel's tactical decisions 'under the distorting effects of hindsight.'" State v. Marshall, 148 N.J. 89, 157 (1997) (quoting Strickland, supra, 466 U.S. at 687-89, 104 S. Ct. at 2064-65, 80 L. Ed. 2d at 693-94). Mother has "failed to 'overcome the presumption that, under the circumstances,' defense counsel's decision not to" force the Division to call medical witnesses "'might be considered sound trial strategy.'" State v. Arthur, 184 N.J. 307, 320 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d 674-75)(internal quotation marks omitted); see B.R., supra, 192 N.J. at 307-08.
Thus, Mother has failed to show either that trial counsel's performance fell "outside the broad range of professionally acceptable performance," or that there was "'a reasonable probability that, but for counsel's [alleged] 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). Therefore, we reject her claim that trial counsel was ineffective in not objecting.
V.
Finally, Mother argues that her counsel at trial was ineffective because counsel did not consult Mother prior to agreeing to the admissibility of the discharge summary. Mother submitted a certification in support of her claim that counsel was ineffective. Her certification alleged that the attorney "never told her about the hospital discharge summary" or the information contained therein. She also averred that, "[h]ad my attorney communicated with me and told me about the hospital discharge summary, I would never have agreed to stipulate to the admission of that document."
Notably, defendant's certification does not deny that she took cocaine and opiates during pregnancy, or contest that as a result C.G. suffered neonatal abstinence syndrome requiring morphine treatment and three weeks of hospitalization.
Mother's certification does not support a finding that trial counsel was ineffective. Trial counsel could not consult with Mother before agreeing to the admission of Exhibit P-9, because Mother failed to appear at the January 23, 2012 fact-finding hearing. When asked at that hearing if he knew where Mother was, trial counsel responded: "I do not. She was recently arrested. I believe she was released on her own recognizance last week sometime. I, unfortunately, Judge, have not had contact with her since August 30th."
Mother argues that her counsel should have been able to contact her because the Division was able to contact her. However, the Division's counsel stated at the hearing that the Division was equally unaware of Mother's current whereabouts:
The Division is not even sure where she is.The Division has also countered Mother's certification with documentation showing its difficulties in communicating with Mother, and relating Mother's statement that she was on the run because there was a warrant for her arrest.
She was incarcerated very recently, and was released before today's hearing. And, there's some indication that when she was released she indicated that the Division had an in-patient bed for her according to the caseworker, who's here in court. However, [Mother] has not engaged with the Division to the point where there was anything — any in-patient treatment available to her at the time of her release from incarceration. And, the Division is not sure where she is.
Mother's certification claimed that her trial counsel did not tell her she had a January 23, 2012 court date, and that was why she did not attend the fact-finding hearing. However, at the beginning of the fact-finding hearing, the trial court found that Mother had "notice of today's proceedings, so we will proceed in her absence." In any event, Mother has not raised a claim based on notice of the hearing, but only on counsel agreeing to the admissibility of the discharge summary without first consulting with her.
In any event, trial counsel was not obliged to consult with Mother before agreeing to the admissibility of the discharge summary.
"Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial." . . . Thus, decisions by counsel are generally given effect as to what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.Here, trial counsel's tactical decision regarded what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence, not a fundamental right like pleading guilty or stipulating to abuse and neglect. Cf. N.J. Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 611 (App. Div. 2011) (counsel stipulated to the actual occurrence of facts that admitted abuse and neglect); N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 256-57, 266 (App. Div. 2002) (stipulation to abuse and neglect). That tactical decision was counsel's to make, and did not require consultation with Mother. As Mother has failed to demonstrate that decision resulted in ineffective assistance of counsel, her claim fails.
[New York v. Hill, 528 U.S. 110, 114-15, 120 S. Ct. 659, 664, 145 L. Ed. 2d 560, 566-67 (2000) (quoting Taylor v. Illinois, 484 U.S. 400, 417-18, 108 S. Ct. 646, 657, 98 L. Ed. 2d 798, 816 (1988) ("The adversary process could not function effectively if every tactical decision required client approval.")) (other citations omitted)].
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION