Opinion
DOCKET NO. A-4948-12T4 DOCKET NO. A-5011-13T4
07-13-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.R., Defendant-Appellant, and J.M.-A., Defendant-Respondent. IN THE MATTER OF M.M., and J.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (in A-4948-12)(Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (in A-5011-13) (Melissa Dutton-Schaffer, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent J.M.-A. (Adrienne Kalosieh, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.M. and J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Fasciale and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-0047-12. Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (in A-4948-12)(Melissa H. Raksa, Assistant Attorney General, of counsel; Steven Hahn, Deputy Attorney General, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Child Protection and Permanency (in A-5011-13) (Melissa Dutton-Schaffer, Assistant Attorney General, of counsel; Joel Clymer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, attorney for respondent J.M.-A. (Adrienne Kalosieh, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.M. and J.M. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant C.R. ("defendant") is the mother of two minor children. In these consolidated cases, defendant appeals from a series of orders stemming from a Title 30 proceeding under the FN docket where defendant stipulated that she required services to address her substance abuse and domestic violence issues. N.J.S.A. 30:4C-12. An order dated May 9, 2013 dismissed litigation in the Title 30 proceeding and granted legal and physical custody to the children's biological father, without a G.M. hearing. As the trial court transferred custody without affording a hearing, we reverse, in part, and remand for further proceedings consistent with this opinion. However, we affirm as to the remaining orders.
The orders listed in the notice of appeal regarding docket number A-4948-12 were dated September 16, 2011 (order to show cause for care and supervision); October 12, 2011 (return on order to show cause requiring parents to comply with services); October 14, 2011 (case management review, granting physical custody to children's biological father, J.M.-A.); January 5, 2012 (defendant stipulating to Title 30 finding, N.J.S.A. 30:4C-12); April 24, 2012 (compliance review and disposition); August 3, 2012 (compliance review granting physical custody to both defendant and J.M.-A.); October 26, 2012 (compliance review); February 14, 2013 (compliance review granting physical custody to J.M.-A.); and May 9, 2013 (compliance review transferring legal and physical custody to J.M.-A. and dismissing litigation). The orders listed in the second amended notice of appeal regarding docket number A-5011-13 were dated May 1, 2014 (case management review); May 12, 2014 (limiting defendant's witnesses and declining to sign a protective order limiting defendant's waiver of attorney-client privilege); and May 13, 2014 (denying defendant's ineffective assistance of counsel claim). Defendant also included in the list an order dated June 9, 2014, however, this is the same order as the order denying ineffective assistance of counsel claim dated May 13, 2014; it was marked as filed on June 9, 2014.
FN docket "consists of abuse and neglect matters[,]" while "[o]ther docket types include: "FD, which consists of child custody, visitation, child support, paternity, medical support, and spousal support in non-divorce matters;" and "FM, which consists of divorce, marriage nullity, and separation maintenance matters." N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 22-23 n.3, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013).
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009) (holding that, after a finding of abuse or neglect, "[a] dispositional hearing must be held to determine the appropriate outcome of the case." (citing N.J.S.A. 9:6-8.50)).
I.
Defendant is the mother of M.M. ("Maura"), born in 2007, and J.M. ("Josh"), born in 2005. J.M.-A. is the children's biological father. The Division of Child Protection and Permanency (the "Division") first became involved with the family on August 19, 2011, upon receiving a referral from Ocean County Probation that defendant tested positive for cocaine.
Pseudonyms are used for the minors for ease of reference.
During the Division's investigation, defendant admitted to the caseworker that she had previously used about one gram of cocaine two weeks prior. Defendant additionally submitted to drug tests on August 19 and August 24, 2011, which revealed that her drug levels increased from 3400 to 26540 in the five days between drug tests.
Based on the referral and investigation, the Division filed an order to show cause and verified complaint on September 15, 2011, against C.R. and J.M.-A., seeking care and supervision of Maura and Josh, pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. On September 16, 2011, the trial judge entered an order to show cause for care and supervision of Maura and Josh. At the order to show cause hearing, defendant stipulated, for dispositional purposes only, to a need for services and acknowledged her drug use. At the return of the order to show cause on October 12, 2011, the judge issued an order requiring defendant and J.M.-A. to comply with services.
On January 5, 2012, in lieu of a fact-finding hearing, defendant stipulated to a Title 30 finding. Defendant and her trial counsel engaged in an extensive colloquy confirming defendant's agreement that she needed services provided by the Division and that she waived her right to a hearing. Defendant acknowledged that she understood she was waiving her right to a hearing where she would be represented by counsel, and be permitted to testify, call witnesses and cross-examine witnesses for the Division. Additionally, when defendant's lawyer questioned her as to whether she was "content" with her legal representation, defendant answered "yes." The trial judge subsequently issued an order adjudicating "the minor children to be wards of the [c]ourt under [N.J.S.A. 30:4C-12]."
Over the course of the next year, a series of compliance review hearings were held, and the judge noted defendant's continued failure to comply with required services and drug testing. When defendant did comply, she tested positive for cocaine on June 8, 2012 and January 7, 2013. The judge granted J.M.-A physical custody of the children on February 14, 2013.
In March and April 2013, defendant and J.M.-A. filed cross-complaints for restraining orders against each other. Following a hearing, the judge found that defendant and J.M.-A. committed acts of domestic violence against each other. Physical custody was awarded to J.M.-A. and both parties were barred from each other's residences.
In a May 9, 2013 compliance hearing, the judge found defendant's concerns regarding J.M.-A.'s drug use not credible because J.M.-A.'s past three drug tests were negative and he also completed a substance abuse evaluation. J.M.-A. then requested the dismissal of litigation because of his compliance with Division services. The Division did not object because it could still provide services to the family and it was satisfied with J.M.-A.'s care for the children.
Defendant, however, requested a G.M. hearing prior to dismissal, which the judge found unnecessary. Consequently, the judge dismissed the matter and stated that defendant could file a motion for reconsideration. In the May 9, 2013 order, J.M.-A. was granted physical and legal custody of both children, and any changes in custody or visitation were to be addressed under a parallel FD docket proceeding.
In the parallel FD docket proceeding, under docket number FD-15-783-11, the court awarded physical and legal custody to J.M.-A. on May 31, 2013.
Defendant filed an amended notice of appeal in September 2013, appealing this May 9, 2013 order dismissing litigation and placing the children in J.M.-A.'s custody and "all orders . . . which in any way changed or restricted defendant's custody, visitation or other parental rights . . . ."
On January 31, 2014, defendant filed a motion to supplement the record to raise claims of ineffective assistance of counsel and custody, and to consolidate those claims with issues raised on direct appeal. We denied the motion to supplement without prejudice, but remanded the matter to the trial court for findings on defendant's ineffective assistance of counsel claim. We further specified that this "proceeding may include the judge's consideration of any of the materials referred to by defendant in the motion to supplement that we have dismissed without prejudice."
In February 2014, J.M.-A. filed a cross-motion to dismiss defendant's amended notice of appeal, which was granted because defendant failed to specify which orders she was appealing. Defendant was given leave to file another amended notice of appeal, which defendant filed in May 2014, indicating the specific orders she was appealing.
On May 13, 2014, the trial judge on remand held a hearing on defendant's ineffective assistance of counsel claim. Prior to this hearing, the judge issued a written decision on May 12, 2014, limiting defendant's witness list to defendant and her trial counsel. The judge also declined to sign defendant's request for a protective order limiting her waiver of the attorney-client privilege. The judge stated that defendant
is asserting her attorney was ineffective, and waiving attorney-client privilege to try and prove it to the [c]ourt. To allow her to select which portions of the privilege she wishes to waive has no support from our New Jersey [c]ourts. The [c]ourt thus declines to sign a [p]rotective [o]rder in this matter.
. . . Other than [d]efendant and her prior counsel, new counsel wishes to call an unnamed attorney expert, Division caseworkers, substance abuse and treatment providers, a parent mentor, and one of the children's teachers, who will apparently provide evidence of the care that [d]efendant provide[s] for her children, as well as her alleged compliance. That is not the purpose of the hearing.
During the hearing, defendant's new counsel attempted to submit twenty-one documentary exhibits. The judge ruled that only documents included in the motion to supplement could be considered, as indicated in our remand order. Considering defendant and her trial counsel's testimony, and the colloquy between the two during defendant's January 5, 2012 Title 30 stipulation, the judge found that defendant's counsel did not provide ineffective assistance. The judge further found that even if counsel had been ineffective, there would not have been a different result considering defendant's consistent non- compliance with various orders and services. The judge subsequently issued an order on June 9, 2014.
On June 26, 2014, defendant filed a notice of appeal, appealing the order finding defendant's trial counsel did not provide ineffective assistance of counsel, and the written rulings entered on May 1 and May 12, 2013. We then granted defendant's motion to consolidate the appeals and accelerate the briefing for the new appeal.
On appeal, defendant argues that (1) her ineffective assistance of counsel claim was improperly limited and decided; and (2) that all orders entered below must be vacated.
II.
We defer to family court fact-finding, and the "conclusions that flow logically from those findings[.]" N.J. Div. of Youth & Family Servs. v. I.S., 214 N.J. 8, 32 (citing Cesare v. Cesare, 154 N.J. 394, 413 ( 1998)), cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013). However, where the issues are purely legal, we apply a de novo standard of review and give no special deference to the trial court. D.W. v. R.W., 212 N.J. 232, 245-46 (2012).
A.
Defendant first argues that the order remanding for a hearing on her ineffective assistance of counsel claim led the trial judge to improperly limit the scope of the remand proceedings. Specifically, she asserts the trial court should have permitted the twenty-one documentary exhibits to be admitted, allowed all the witnesses on her witness list to testify, and improperly denied signing the protective order limiting her waiver of the attorney-client privilege. We disagree.
Our April 15, 2014 order provided the following instructions to the Family Part regarding the remand:
That proceeding may include the judge's consideration of any of the materials referred to by defendant in the motion to supplement that we have dismissed without prejudice. Any party aggrieved by the trial judge's disposition of the ineffectiveness argument may file a timely notice of appeal in this court and, to the extent the other issues on appeal have not already been briefed by that time, the parties may file supplemental briefs in accordance with Rule 2:9-1(c).
The judge properly limited the scope of the ineffective assistance of counsel hearing in accordance with the limitations prescribed by the remand order. The documents defendant sought to admit into evidence were not included in the materials submitted with her motion to supplement the record on appeal.
Defendant's witness list was also properly restricted to defendant and her trial counsel. Defendant's submitted witness list included an unnamed "attorney expert," two Division caseworkers, a parenting mentor, a court-appointed special advocate, substance abuse and treatment evaluators, two doctors, and Josh's teacher, along with defendant and her trial counsel. As explained by the judge in her written opinion, the purpose of the hearing was not to re-try defendant's case, but to determine whether defendant's trial counsel was ineffective. We discern no evidence that the judge abused her discretion in limiting defendant's witness list.
We also conclude that the judge properly declined to sign the protective order limiting defendant's waiver of the attorney-client privilege. Communications between an attorney and his or her client are privileged. N.J.S.A. 2A:84A-20(1). However, this privilege does not extend "to a communication relevant to an issue of breach of duty by the lawyer to his client[.]" N.J.S.A. 2A:84A-20(2)(c).
This exception extends to situations where a client sues his or her attorney for ineffective assistance of counsel. State v. Bey, 161 N.J. 233, 296 (1999), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000). As defendant waived her attorney-client privilege and cannot select which of the communications with her attorney to waive, the judge properly refused to sign the protective order.
B.
Defendant also asserts that the trial court failed to apply the proper legal standards when determining whether defendant's trial counsel was ineffective. We disagree.
It is clear that a parent defending against the State's action seeking to terminate his or her parental rights has the right to effective counsel. N.J.S.A. 30:4C-15.4(a); N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007). The right to effective assistance of counsel also applies in non-guardianship cases. N.J. Div. of Youth & Family Servs. v. S.N.W., 428 N.J. Super. 247, 251-52 (App. Div. 2012).
To establish a claim for ineffective assistance of counsel, a defendant must satisfy the two-pronged test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test). A defendant must prove that: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant to the extent that he or she was denied a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.
Here, the judge found the testimony of defendant's trial counsel credible. Counsel testified that he explained the complaint to defendant, discussed it with her, and clarified what it would mean for her to stipulate for dispositional purposes. Additionally, the judge read into the record the colloquy between trial counsel and defendant during the Title 30 stipulation, which included asking whether she understood what waiving the hearing meant, and if she was satisfied with his legal representation.
Based on this evidence, the judge found defendant failed to establish the first prong of the Strickland test, as counsel's performance was neither deficient nor ineffective. Nevertheless, the judge further found that defendant failed to satisfy the second prong because of defendant's continued noncompliance with orders and services.
We conclude that the judge's findings are supported by substantial credible evidence in the record. Defendant testified that she understood the consequences of the stipulation and that she was satisfied with counsel. Although defendant stated at the remand hearing that she only said she was satisfied with her representation because he told her to comply, the judge found counsel to be more credible. See N.J. Div. of Youth & Family Servs. v. W.F., 434 N.J. Super. 288, 294 (App. Div.), certif. denied, 218 N.J. 275 (2014). We are convinced that even if counsel erred by waiving the fact-finding hearing, the result here would have been the same.
III.
Defendant also argues that all orders entered below must be vacated and that the court improperly adjudicated her motion to supplement the record. She asserts that the court erred in its rulings pertaining to visitation, placement, and custody, and that her due process rights were violated. We conclude that the May 9, 2013 order transferring physical and legal custody to J.M.-A. and dismissing litigation was not properly entered. However, we affirm the remaining orders.
A.
The May 9, 2013 order improperly transferred physical and legal custody to J.M.-A. The court lacked the requisite statutory authority under Title 9 or Title 30 to effect the transfer of custody that occurred here, and otherwise failed to perform the changed-circumstances analysis required in an independent custody proceeding.
Title 9 provides that the Division can "become involved against the wishes of a parent when a child is abused or neglected." I.S., supra, 214 N.J. at 14 (citing N.J.S.A. 9:6-8.21). Prior to a Title 9 fact-finding hearing, "[i]f a child's life or health is in imminent danger, the authorities may temporarily remove the child from the offending parent or guardian." G.M., supra, 198 N.J. at 397 (citing N.J.S.A. 9:6-8.27a, -8.29). Thereafter, the offending parent may apply at any time for return of the child, "which should be granted unless there is 'an imminent risk to the child's life, safety or health.'" Id. at 398 (quoting N.J.S.A. 9:6-8.32).
If the court makes a finding of abuse or neglect, it maintains jurisdiction in order to hold a dispositional hearing "to determine the appropriate outcome of the case." Id. at 399 (citing N.J.S.A. 9:6-8.50). At that hearing,
[t]he court may enter a suspended judgment, N.J.S.A. 9:6-8.52; release the child to the custody of the parent or guardian responsible for the child's care at the time of the filing of the complaint, N.J.S.A. 9:6-8.53; place the child with "a relative or other suitable person," N.J.S.A. 9:6-8.54(a); make an order of protection, N.J.S.A. 9:6-8.55; place the offending parent or guardian on probation, N.J.S.A. 9:6-8.56; and/or require the offending person to accept therapeutic services, N.J.S.A. 9:6-8.51(a).Transfer of physical custody to a parent with joint legal custody constitutes such a placement under Title 9. Id. at 404-05.
[Id. at 399-400.]
Under Title 30, the Division may temporarily place a child under its care and supervision. N.J.S.A. 30:4C-12. This involvement may include physical removal and Division custody. Ibid. However, as previously discussed, Division intervention under Title 30 is not indefinite, and the court can only temporarily grant physical custody to the Division in six-month intervals. Ibid.; I.S., supra, 214 N.J. at 37-38.
Finally, "a noncustodial parent . . . 'may always initiate a request for a change in custody,' which involves a changed circumstances inquiry and, ultimately, becomes a best-interests analysis." I.S., supra, 214 N.J. at 40 (quoting G.M., supra, 198 N.J. at 402 n.3). If a parent brings such an application during the pendency of a Title 9 or Title 30 action, it is preferable for the trial court to adjudicate the custody dispute as a separate action. Id. at 41.
However, in I.S., our Supreme Court found that "[w]hen custody issues become intertwined with child-protection actions, then dispositional questions that lie at the intersection of the two matters" can become complicated by subsequent developments. Ibid. In such cases, the then-existing circumstances may preclude strict adherence to procedure, and the court can consolidate a Title 30 dispositional hearing with related custody matters. Id. at 41-42.
Here, the trial court entered the order under the FN docket. Defendant requested and the judge refused to hold a dispositional hearing or perform a best-interests analysis before transferring custody to J.M.-A.
We therefore turn to the appropriate remedy for failure to afford defendant an opportunity for a hearing regarding the custody issue. By granting J.M.-A. legal and physical custody under the FN docket, the trial court inextricably intertwined the Title 30 action with independent custody issues, and we therefore conclude that the consolidated hearing approved in I.S. is also appropriate here. The trial court must first decide whether the "children may safely be released to the custody of their mother[.]" G.M., supra, 198 N.J. at 402. If so, then the court must next determine whether changed circumstances and the children's best interests nevertheless require that J.M.-A. retain physical custody. I.S., supra, 214 N.J. at 22.
Additionally, we note that N.J.S.A. 9:6-8.43a provides that a parent has a right to legal representation in Title 9 actions. Moreover, the State must provide legal counsel to indigent parents whenever the Division temporarily or permanently transfers custody. Ibid.; N.J. Div. of Youth & Family Servs. v. R.G., 397 N.J. Super. 439, 449-50 (App. Div. 2008), overruled in part on other grounds by G.M., supra, 198 N.J. 382. Given the extent of the State's involvement in the ongoing physical custody of the children here, we find that either parent, if indigent, is entitled to court-appointed counsel for the entirety of the remand hearing.
B.
Defendant additionally challenges her Title 30 stipulation and the consent orders, argues that the orders entered below must be vacated because her due process was violated, and that the court's findings that she was noncompliant with required services were unsupported. We cannot agree.
"To accept a stipulation to Title 30 services involving removal of the child in the absence of established abuse or neglect, 'the judge must be satisfied that there is a factual basis' for finding the child would be at risk if returned to the parent." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 112-13 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 266 (App. Div. 2002)). In family law matters, stipulations are permissible if they are "definite and certain in its terms and the consent of the parties to be bound by it must be clearly established." J.Y., supra, 352 N.J. Super. at 265.
Defendant indicated she understood that she was waiving her right to a hearing by stipulating and that she consented to the terms of the order. "[G]enerally, litigants should be held to their stipulations and the consequences thereof." Negrotti v. Negrotti, 98 N.J. 428, 432 (1985). Additionally, the record contains sufficient evidence that defendant repeatedly failed to comply with required services. The Division submitted court reports that included her noncompliance with attending DARE classes, as well as positive results from drugs screens and missed drug screens.
Defendant's due process arguments must also fail. Although five of the orders were entered following hearings off the record, they were signed by the attorneys, including defendant's, and complied with the requirements for consent orders under Rule 4:42-1. Moreover, consent orders are "ordinarily not appealable for the purpose of challenging its substantive provisions." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 618-19 (App. Div. 2010) (citing Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993)).
These orders are dated October 12, 2011; October 14, 2011; April 24, 2012; August 3, 2012; and February 14, 2013. --------
C.
Defendant further argues that we failed to properly adjudicate her motion to supplement the record filed on January 31, 2014, and that she is therefore "entitled to the adjudication of the [m]otion to [s]upplement" because the requested documents are pertinent to the ineffective assistance of counsel claims raised in that motion. We disagree and are convinced that the motion was properly denied. R. 2:11-3(e)(1)(E).
D.
On April 23, 2015, defendant also moved before this court to renew her motion to supplement the record, and for related relief. The Law Guardian also requests this court to take judicial notice of the orders from the FV docket dated May 2, 2013 and May 29, 2013, and the May 31, 2013 transcript from the FD docket.
We deny defendant's motion, except for the three documents requested by the Law Guardian, which we will allow as supplementation of the record. See N.J.R.E. 201; N.J.R.E. 202. We have considered defendant's remaining arguments and find they are without sufficient merit to warrant a discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, and reversed and remanded in part. 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