Opinion
DOCKET NO. A-5454-12T3
04-21-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.K., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.V.K., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.V.K. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Alvarez and Ostrer.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-127-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.V.K. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
J.K. appeals from the Family Part's June 25, 2013, order terminating her parental rights to her daughter, J.V.K., born July 30, 2010. She presents the following points and sub-points for our consideration:
POINT I
SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE BEST INTERESTS TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) THE COURT'S FINDINGS THAT APPELLANT WAS UNABLE TO OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.
(B) DCPP FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES WHICH WERE REASONABLE UNDER ALL THE CIRCUMSTANCES AND DID NOT EXPLORE ALTERNATIVES TO TERMINATION.
(C) APPELLANT IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
POINT II
APPELLANT WAS DENIED HER RIGHT TO AN ACCOMMODATION FOR INTERPRETATION UNDER N.J.S.A. 34:1-69.7 TO 34:1-69.17 AND THE ADA MANDATING A REVERSAL. (Not Raised Below).
POINT III
APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL SINCE SHE COULD
NOT COMMUNICATE WITH TRIAL COUNSEL BEFORE AND DURING THE TERMINATION PROCEEDINGS AND WAS NOT PROPERLY ADVISED BY COUNSEL OF HER RIGHTS UNDER N.J.S.A. 34:1-69.7 TO 34:1-69.17 AND ADA. (Not Raised Below).
Based on the thorough oral opinion of Judge Linda G. Baxter, we affirm.
We need not recite the facts at length. Judge Baxter described them in detail. Suffice it to say, J.K. had an extensive history of persistent and intractable substance abuse. Custody of her previous child was transferred to J.K.'s sister after involvement of the New Jersey Division of Child Protection and Permanency (Division). The Division most recently became involved in J.K.'s life in 2010, when it received a referral that J.K. was pregnant and using heroin. J.V.K. suffered from drug withdrawal after birth.
At the time, the Division was known as the Division of Youth and Family Services. See L. 2012, c. 16, eff. June 29, 2012, amending N.J.S.A. 9:3A-10(b), and renaming the agency.
Over a period of almost three years, J.K. received an array of services from the Division, including multiple inpatient substance abuse programs, counseling, visitation assistance, and psychological and psychiatric evaluations. Despite J.K.'s demonstrated affection for her daughter, J.V.K. was twice removed from J.K.'s care because of her substance abuse. Notwithstanding the Division's services, J.K. experienced a total of five relapses of substance abuse over little more than two years, including while attending an inpatient program. She was aware that relapses would endanger her parental rights. Efforts to place J.V.K. with family members were unsuccessful. J.V.K.'s maternal grandmother presented safety issues, and a maternal aunt was unable to accept custody.
Multiple experts evaluated J.K. and found that she suffered not only from drug dependence, but also depression, and a personality disorder. The court found persuasive the Division's expert, Linda R. Jeffrey, Ph.D., who testified that the long-term prospects for J.K.'s sustained abstinence were poor, her ability to safely parent J.V.K. was severely impaired, and she would require a total of twenty-four months of sobriety, stability, and adjustment before one could find her capable of parenting. Although J.K. was in the midst of a period of abstinence during the guardianship trial, it was achieved in the context of an inpatient program, which was to be followed by a six-to-twelve month halfway-house program. J.K. agreed she was in the early stages of recovery.
Dr. Jeffrey opined that despite J.K.'s affection for her daughter, J.V.K. had an insecure bond with her mother. By contrast, J.V.K. had a secure bond with her foster parents, the termination of which would cause J.V.K. severe and enduring harm. Judge Baxter was unpersuaded by the opinion of defendant's expert, who expressed a more optimistic assessment of J.K.'s prospects for recovery, and attaining the capacity to parent, but who also agreed that J.K. would not be ready to parent for another year.
Judge Baxter found the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. After reviewing the record and applicable law in light of the arguments advanced on appeal, we discern no basis to disturb the court's findings, which were amply supported by the evidence and the court's credibility determinations. N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part and modified in part on other grounds, 179 N.J. 264 (2004) .
We briefly comment on the issues on appeal not presented to the trial court. J.K. argues that we should reverse the trial court's judgment because (1) she was denied accommodations during the trial and other court appearances to address her hearing impairment; and (2) she was denied effective assistance of counsel because her hearing impairment impeded her ability to communicate with counsel, and counsel failed to assure she received appropriate accommodations. Simply put, J.K.'s arguments lack the support of competent evidence in the record.
Unquestionably, a party is entitled to assistive devices or interpretation if he or she is unable to hear, or participate in judicial proceedings without them. See N.J.S.A. 34:1-69.7 to -69.17. J.K. was provided with an amplification device at trial. Her citation to a few isolated instances where an attorney needed to keep his voice up, an amplification device had to be adjusted, or a statement needed to be repeated, does not suffice to establish that J.K. was denied accommodations. She made no specific request for additional assistance, nor did she indicate a continuing inability to hear, participate in the proceedings, or communicate with counsel. J.K. testified without any apparent impediment at trial, and responded to questions at other court events. She submitted to numerous evaluations, and no expert reported an inability to communicate with J.K.
We apply the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in evaluating a parent's claim that he or she was denied a constitutional right to effective assistance of counsel in a termination of parental rights case. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007). A parent must establish that (1) counsel's performance was deficient and made errors so serious that counsel was not functioning as constitutionally guaranteed, and (2) the parent was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
J.K. has not met either prong of the Strickland test. First, J.K. has failed to present competent evidence that her trial counsel failed to assure her full participation in the proceedings, despite her hearing impairment. Second, J.K. has not indicated how, but for alleged gaps in her participation, there is a reasonable probability that the result would have been different.
We recognize that denying a hearing impaired person appropriate accommodations, to enable him or her to hear and participate in a trial, is akin to denying a party the right to be present. Due process protects a defendant's right to be present "to the extent that a defendant's absence would hinder a fair and just hearing." State v. Finklea, 147 N.J. 211, 216 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997); see also United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970) (criminal defendant entitled to English interpreter under due process). However, further analysis of the issue is not warranted, as the evidence does not support a finding that defendant was denied the ability to hear and participate.
To the extent not addressed, J.K.'s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION