NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. R.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3541-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.B.,

Defendant-Appellant,

________________________

IN THE MATTER OF GUARDIANSHIP

OF A.L.B.M.

A Minor.

_________________________________________________

 

Submitted September 20, 2005 - Decided:

Before Judges Payne and Francis.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Monmouth County, FG-13-58-04.

Yvonne Smith Segars, Public Defender,

attorney for appellant R.B. (Michael

Confusione, Designated Counsel

and on the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Michael Haas,

Deputy Attorney General, of counsel,

Scott J. Kieserman, Deputy Attorney

General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for respondent

A.L.B.M. minor child-respondent (Nancy

E. Scott, Assistant Deputy Public

Defender, of counsel and on the brief).

PER CURIAM

R.B., the biological mother of A.L.B.M., appeals from a judgment of the Family Part terminating her parental rights to the child. Although we previously consolidated the matter (docket no. A-3541-04T4) with an appeal by the child's biological father, C.M., from the same order (docket no. A-3540-04T4), we address the arguments of the appellants in separate opinions.

A.L.B.M. was born on May 22, 2002. R.B., a heroin addict, tested positive for marijuana and methadone while in the hospital following the birth. However, A.L.B.M. was discharged to her care on May 26 after R.B. and C.M. agreed to undergo random drug tests.

On June 25, 2002, one month after the child's release from the hospital, the New Jersey Division of Youth and Family Services (DYFS) received an anonymous telephone call reporting that R.B. had been seen falling down and slurring her speech. A DYFS caseworker, Paula Carrigan, accompanied by two police officers, responded and allegedly found R.B. crossing the street with A.L.B.M. in her arms, her head unsupported and "swinging." R.B. appeared to be bruised and under the influence of drugs or alcohol. When she, the child, the DYFS worker, and the police entered R.B.'s apartment, it is claimed that a strong odor of natural gas was present, but that R.B. did not detected it. R.B. was taken into custody on an outstanding warrant for unrelated charges, and upon arrest, she consented to the temporary placement of A.L.B.M. with the child's maternal grandmother.

On the next day, A.L.B.M. was examined and hospitalized until July 5, 2002 by physicians at Jersey Shore Medical Center as the result of evidence of bruising and symptoms of drug withdrawal. A complaint against R.B. was filed, and R.B. was subsequently arrested and charged with endangering the welfare of a child. She pled guilty to that charge in October 2002 and, on January 21, 2003, she entered an in-patient drug rehabilitation program at Integrity, Inc. as a condition of probation, where she remained until October 28, 2003, at which time she left the program. R.B. was readmitted to Integrity on February 18, 2004 and remained there until she was transferred from Integrity to Bergen Regional Medical Center as the result of depression on June 3, 2004. There, she completed a five-week program of treatment as a mentally ill/chemically addicted (MICA) patient. Upon discharge, she moved into the Eva's Kitchen shelter in Paterson and attended out-patient drug treatment at Star Light, but in late July, she had a relapse. In late August 2004, R.B. enrolled herself in a twenty-eight day rehabilitation program at a facility called New Hope. However, a warrant lodged against R.B. for a violation of probation after her original departure from Integrity House was activated, and she was jailed at the Monmouth County Correctional Center on September 2, 2004.

A complaint for guardianship and for termination of the parental rights of both R.B. and C.M. was filed by DYFS on September 25, 2003. Thereafter, a guardianship trial took place in the Family Part at a leisurely pace on three days in June, one day in July, one day in August, two days in September, three days in October, and one day in November, 2004. The court's opinion and order terminating the parental rights of both biological parents was issued on January 18, 2005. Counsel was assigned to represent R.B., an indigent, throughout the proceedings in the Family Part.

A principal issue on appeal arises from the fact that R.B. was absent from the trial on June 14, June 16, and June 18, 2004 while hospitalized at Bergen Regional Hospital, and on August 30, and September 1, 2004 while being treated at New Hope. Her attorney did not attend the trial on August 30 or September 1.

At the commencement of trial on June 14, R.B.'s attorney informed the court that R.B. had been transferred from Integrity to the MICA unit of Bergen Regional Medical Center for treatment, and he requested an adjournment of trial until her release, which he anticipated would occur approximately twenty-one days from her admission on June 3. The State agreed to the adjournment. However, the court was reluctant to grant the request and required that R.B.'s attorney provide documentation both from Integrity indicating that it had required R.B. to obtain treatment at Bergen Regional and from Bergen Regional indicating the length of R.B.'s stay. During the proceedings on June 14, R.B.'s attorney stated that because of his heavy case load, he did not prepare for trial until shortly before the scheduled trial date. He stated further that he had not been able to meaningfully consult with R.B. because of the "very structured" programs at Integrity and Bergen Regional. In fact, Bergen Regional would not even confirm R.B.'s presence in the institution as the result of privacy concerns. The attorney stated: "So I'm in a very difficult situation Judge. I have not been able to speak with [R.B.]"

Testimony of a psychological expert, Dr. Alan Lee, who had evaluated A.L.B.M.'s father, C.M., but not R.B., was given during the afternoon on June 14. Cross-examination of the psychologist by R.B.'s attorney was limited to establishing that the psychologist had no contact with R.B., A.L.B.M.'s weight was appropriate at birth, pre-natal care had occurred, the child was released to the custody of her parents following her birth, and R.B. had a history of drug problems with treatment in Secaucus, the location of Integrity's facility.

Trial resumed on June 16. At that time, the Family Part judge acknowledged receipt of a letter from Bergen Regional confirming R.B.'s admission and stating that she was unable to leave the facility. The letter stated that no discharge date had been scheduled. Contact information was provided. The court again requested confirmation of the length of R.B.'s hospitalization.

On that day, testimony was given by Dr. David F. Bogacki, a psychologist who had examined both C.M. and R.B. However, the doctor's testimony was limited to C.M.

On June 17, R.B. again was not present "for reasons previously stated upon the record." No further discussion of R.B.'s absence occurred, and the request for an adjournment was not renewed. Despite R.B.'s absence, testimony was given without objection by neurodevelopmental pediatrician Dr. Denise Aloisio, the head of the infant/toddler assessment program (ITAP) at the Jersey Shore Medical Center, where A.L.B.M. had been treated commencing on June 26, 2002. Dr. Aloisio confirmed that the child was referred to ITAP by DYFS for continuing assessment as a high risk infant as the result of her pre- and neonatal exposure to drugs. The doctor's further testimony addressed the core concerns of the trial proceedings. She described the neurological symptoms in a child that were associated with drug exposure and the high risks to a child of developmental delays and behavioral problems as the result of that exposure. She stated that, after demonstrating initial developmental and behavioral difficulties, A.L.B.M. had begun to thrive. She gave the opinion that A.L.B.M. required a stable environment to insure her continued progress, and she testified, based on the history of C.M. and R.B.'s lifestyle that was supplied to her in a hypothetical question, that she would not find stability in her parents' home. Further, Dr. Aloisio testified that she viewed the care being provided to A.L.B.M. by her grandmother to be "sophisticated" and that she was aware of an Israeli study that found drug exposed children who remained in their mother's custody had lower intelligence than those who did not. Finally, the doctor recounted the fact that she had been informed that R.B. had dropped the child in its first month of life.

R.B. and her attorney were present at trial on July 28. However, both were absent on the next trial date, which occurred on August 30, 2004. At that time, the following exchange took place:

[THE DEPUTY ATTORNEY GENERAL]: Your Honor, [R.B.'s attorney] has not appeared today. His client, [R.B.] -

THE COURT: I was going to have my court coordinator just put a brief statement on the record as to the communications we've had with Mr. Reuben over at New Hope if that's all right.

* * *

THE CLERK: Judge, it's the Court's understanding that [R.B.] entered New Hope. She's due to get out September 13th. There's a bench warrant out for her arrest. But she plans to turn herself in on the 13th to this Court. She's not sure whether she's going to end up in drug court or Clinton. And she said either way she would let this Court know. I gave her a tentative date of September 20th at 3:00 o'clock for possible surrender. She is considering surrender.

THE COURT: All right, that being said.

[THE DEPUTY ATTORNEY GENERAL]: Judge, [R.B.'s attorney] as was indicated, has not appeared today. [He] called me and emphatically told me that he sat down with his client and that his client was going to do a surrender in this matter.

His words basically, you don't need to prep the case in reference to my client because she's going to do a surrender. . . .

THE COURT: Yes.

[THE DEPUTY ATTORNEY GENERAL]: But again, we all know it's not binding. If she comes in on the 20th and says I'm proceeding, she's proceeding. But based on [R.B.'s attorney] not being here and based upon his representation that she is going to do a surrender, I'm prepared to proceed against, continue the trial. But I'm going to confine my proofs basically to [C.M.], Judge.

R.B.'s attorney did not appear in court; he did not communicate directly with the judge; and he offered no document or other proof of a knowing and voluntary surrender by R.B. of her parental rights.

Despite the Deputy Attorney General's representation that his proofs would be limited to C.M., the first witness that he called on August 30 was Paula Carrigan, the DYFS caseworker who had responded to the anonymous call alleging abuse by R.B. In detailed testimony, Carrigan recounted the allegations made by the caller as well as her own observations of R.B.'s impaired and bruised state, R.B.'s mishandling of the child, and the fact that natural gas was present and undetected in R.B.'s apartment. Carrigan also testified to R.B.'s admission of domestic violence and her conversations with R.B.'s father and sister regarding their view of the events of June 25, which they had witnessed. Finally, she was permitted to read into the record her case note, which stated:

Neglect of [A.L.B.M.] by her mother [R.B.] is substantiated. [R.B.] was high and was not caring for her baby properly. Mother did not smell natural gas which permeated the apartment. Also ongoing domestic violence between parents places [A.L.B.M.] at high risk.

Carrigan testified that the file had been "red flagged" because of the high risk to the child posed by the use of drugs and existence of domestic violence.

In addition to Carrigan, the State called as a witness Kathleen Giaquinto, who had been assigned by the DYFS Central Adoption Resource Center to the case since August 28, 2003. Giaquinto did not give the detailed testimony offered by Carrigan regarding R.B. However, she did provide a history of the case, mentioned bonding evaluations between A.L.B.M. and both R.B. and the maternal grandmother, detailed R.B.'s drug use and A.L.B.M.'s hospitalization for drug withdrawal symptoms, and described her monthly home visits with the child's maternal grandparents. Significantly, she also gave her recommendations with respect to placement, affirming the Division's conclusion that R.B.'s rights should be terminated and custody awarded to the maternal grandmother.

On September 1, 2004, R.B. and her attorney again were not present, and no effort was made to confirm the allegation that R.B. intended to surrender her rights to the child. In a colloquy between the Deputy Attorney General and the court, the following was stated:

[DEPUTY ATTORNEY GENERAL]: Judge, I would also just like to continue to put on the record that [R.B.'s attorney] is not here. His client is not here. I believe she's in New Hope. And again, I'm going on the representation from [R.B.'s attorney]. He indicated that his client would be doing a surrender in this matter.

THE COURT: And there's been no change as far as you're aware?

[DEPUTY ATTORNEY GENERAL]: I would expect that [R.B.'s attorney] should have been here, would have been here if his client had taken a change of position.

THE COURT: I think that's probably a safe assumption. In fact, it's good that she's not here which means she's probably still in New Hope.

Trial continued with the testimony of C.M., who acknowledged two prior incidents of domestic violence involving R.B. as well as R.B.'s addiction. He also testified that, during the month that A.L.B.M. had been in R.B.'s care, she had dropped the child, and he had found her on the floor. C.M.'s sister, who testified next, stated her concern for R.B. and C.M.'s care of the child.

Trial next occurred on September 23, 2004, and at that time both R.B. (who was by then in custody) and her attorney were present. However, the attorney apparently had no recollection of the trial, since when he gave his appearance for the record, he stated that he guessed it was "for the first time with regard to trial in this matter." Although the Deputy Attorney General stated for the record that R.B.'s attorney had been present on June 14, 16 and 17, the attorney stated: "I have no recollection of that." No substantive discussion of R.B.'s or her attorney's absence on prior trial dates, or of her purported intent to surrender her rights to A.L.B.M. occurred.

R.B. was again absent for closing arguments on November 9, 2004 because she had been transferred from county jail to a state facility, and her presence had not been properly ordered. The judge found R.B.'s absence immaterial since "there's no evidentiary matters presented today."

As stated, in an opinion issued seven months after the commencement of trial, R.B.'s rights to A.L.B.M. were terminated.

I.

The fundamental nature of a parent's rights to her children and the constitution's protection of those rights have been so thoroughly recognized as to form the boilerplate of appellate briefs, particularly in cases in which the termination of those rights is in issue. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); New Jersey Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 505 (2004); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993); New Jersey Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986). However, it is also recognized that parental rights are not inviolable, and may in cases of parental unfitness be subject to a State's parens patriae interest in the child's welfare when dictated by the child's best interests. K.H.O., supra, 161 N.J. at 347; In re Guardianship of J.C., 129 N.J. 1, 10 (1992); A.W., supra, 103 N.J. at 599. Nonetheless, recognition of the fundamental nature of a parent's right, the permanency of the threatened loss, and the complexity and subjectivity involved in evaluating parental fitness has led courts to impose a heightened standard of proof by clear and convincing evidence upon the State when seeking guardianship of a child and termination of the parent's rights to that child. Santosky v. Kramer, 455 U.S. 745, 762-64, 102 S. Ct. 1388, 1399-1400, 71 L. Ed. 2d 599, 612-13 (1982); L.A.S., 134 N.J. at 132-33.

Of great relevance here, these same concerns have led to a recognition that principles of due process and fundamental fairness require, as occurred here, that indigent parents subject to a potential termination of their rights be afforded counsel. See Crist v. N.J. Div. of Youth & Fam. Servs., 128 N.J. Super. 402, 414-16 (Law. Div. 1974), aff'd in part, rev'd in part on other gr., 135 N.J. Super. 573 (App. Div. 1975). See also In re Guardianship of Dotson, 72 N.J. 112, 123 (1976) (Pashman, J. concurring) (recognizing constitutional right to counsel); New Jersey Div. of Youth & Fam. Servs. v. E.B., 264 N.J. Super. 1, 6 (App. Div. 1993), aff'd, 137 N.J. 180 (1994). As Judge King observed in Crist:

For the State to intrude permanently or only temporarily in a manner designed to disassemble the nuclear family, society's most basic human and psychological unit, without affording counsel and guidance to a class of society's least equipped adversaries strikes the court as a fundamental deprivation of procedural due process.

[Crist, supra, 128 N.J. Super. at 415.]

The right to counsel discussed in Crist has now been statutorily recognized. N.J.S.A. 30:4C-15.4. See also R. 5:3-4.

Inherent in the recognition of a right to counsel is the principle that underlies the concept of procedural due process: that before any deprivation of a significant right to life, liberty or property, the affected party must be afforded adequate notice and a fair opportunity to be heard. Division of Youth & Fam. Servs. v. M.Y.J.P., 360 N.J. Super. 426, 464 (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). The subversion of these rights to counsel and to be heard in the present case requires reversal of the order of guardianship as it applies to R.B., and a new trial.

We find that the manner in which trial was conducted by the Family Part judge in this case resulted in a denial of due process and a proceeding that was fundamentally unfair to R.B., who was not present and not consulted throughout much of the trial, and was unrepresented when testimony was given by witnesses whose evidence was key to the State's claims against her of parental unfitness and to its position that the best interests of A.L.B.M. required the termination of her parental rights.

In a criminal context, the Supreme Court has held that in addition to Sixth Amendment requirements:

The presence of a defendant at his or her own trial is also significant for fourteenth-amendment purposes because the right "is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence * * *." Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S. Ct. 330, 333, 78 L. Ed. 674, 679 (1934).

[State v. Hudson, 119 N.J. 165, 171 (1990).]

Of course this is a civil matter, albeit a recognizedly serious one as a result of the nature of the rights at issue, and in this context, the right of a parent to be present is not absolute. M.Y.J.P., supra, 360 N.J. Super. at 467. However, a comparison of the procedures employed in M.Y.J.P. to ensure that the absent mother's right to be heard was nonetheless protected with the negligible consideration given to R.B. in this case discloses how deficient the protections accorded to R.B. were.

In M.Y.J.P., the Haitian mother whose rights were at issue was demonstrably unable to travel to the United States or to participate in an ongoing trial in this country by telephonic or other means of communication. To safeguard the mother's rights, the trial judge crafted a procedure whereby DYFS would present its case in chief; those parties present at trial would be permitted to cross-examine the Division's witnesses; a transcript would be prepared and translated into Creole; a recess would be called to permit the mother's attorneys to review the transcript with her; the Division's witnesses could be recalled by those attorneys for additional cross-examination following their conference with the mother; and the mother would be afforded an opportunity to be heard by deposition conducted in Haiti.

By contrast, in the present case, R.B. was afforded no opportunity at all to participate in five days of the trial during which the testimony, of direct relevance to her case, that we have previously described was received. Further, as R.B.'s attorney acknowledged at the commencement of the trial, he had not engaged in meaningful conversation with his client prior to the trial's commencement. Thus he was wholly deprived of her view of the evidence that was likely to be produced and of her input as to trial strategy, as well as her continued participation in the trial proceedings themselves.

To determine whether the procedures employed in M.Y.J.P. were sufficient to afford the mother with the protections required in the circumstances to safeguard her constitutional right to a fair opportunity to be heard, we employed the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976); see also Santosky, supra, 455 U.S. at 754, 102 S. Ct. at 1395, 71 L. Ed. 2d at 607 (applying Eldridge in a termination context). M.Y.J.P., supra, 360 N.J. Super. at 465. We stated:

The protections needed to ensure due process where governmental action is to be taken depend on a careful balancing of three factors: (1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require.

In M.Y.J.P., after balancing the Eldridge factors, we found the court's procedures adequate; here, we do not.

As we stated at the outset, the interest of R.B. in her child - the private interest constituting Eldridge's first factor in the context of this case - is a fundamental one that has been recognized as deserving heightened due process protections. See also M.Y.J.P., supra, 360 N.J. Super. at 466-67. Evaluation of the second factor requires us to determine whether the procedures used "resulted in a deprivation of rights or interests that would have been more fully protected if other procedures had been used." Id. at 466. Such was undoubtedly the case here. Counsel sought an adjournment of trial to permit consultation with R.B. and her attendance; his request was not granted, and by the third day of trial, appeared abandoned.

When we consider, third, the State's interest in proceeding expeditiously and any additional burdens the substitute procedures would have required, we are compelled to find that the balance has been wrongly tipped in this case. We recognize in this connection the State's legitimate interest in permanency. P.P., supra, 180 N.J. at 505; New Jersey Div of Youth and Fam. Servs., 338 N.J. Super. 425, 433 (App. Div 2001). However, here, counsel for DYFS consented to counsel's adjournment request, accurately forecasting the necessity of retrial with its accompanying delays should a procedurally defective trial be allowed to continue. As R.B.'s counsel represented from the outset, R.B.'s confinement at Bergen Regional was likely to be of limited duration, after which time she could attend trial. Despite the existence of contact information that would have permitted the court to ascertain R.B.'s release date, the judge never did so. "[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d 921, 931 (1964).

Moreover, this was not a case that was scheduled by the court to proceed expeditiously under any circumstance. Trial, commencing on June 14, 2004, did not conclude until November 9, and the judge's opinion and order were not issued until the following January. The court made generous allowance for his vacation, along with the vacations, illnesses and scheduling conflicts of the attorneys and their other witnesses. R.B., who was involuntarily confined as the result of depression and treatment for the very addiction that led to the involvement of DYFS in the first place, did not receive similar consideration. As a consequence, during the first three days of trial she was deprived of those procedural protections that would have given content to her due process rights.

We discern no reasonable excuse for counsel's failure to appear for trial on August 30 and September 1, or for the court's determination to continue trial on those days without further inquiry and to receive unfavorable testimony relating to R.B.'s parental fitness despite the absence of both R.B. and her attorney. As we previously noted, counsel never appeared in court, nor did the judge require him to do so. His representations as to his client's intentions were conveyed second-hand through the Deputy Attorney General appearing on behalf of DYFS. No direct evidence of R.B.'s waiver of the right to counsel and to be present at trial was adduced. Moreover, no surrender of rights had occurred, no document demonstrating such a surrender was presented in court, and no evidence was presented that R.B., who was still undergoing treatment for her addiction, was in a condition that would permit her to knowingly and voluntarily surrender her rights. As counsel for DYFS observed, R.B. remained free to change her mind (if in fact she ever contemplated surrender), and she in fact appeared in court on September 23, at which time no inquiry was made as to R.B.'s wishes. We are disturbed to note the fact that on September 23, R.B.'s counsel had no recollection of his prior participation in trial.

On appeal, R.B. contends that her counsel's representation was inadequate. We agree. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Div. of Youth & Fam. Servs. v. V.K., 236 N.J. Super. 243, 256 (App. Div. 1989) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692-93 (1984)), certif. denied, 121 N.J. 614 (1990). Counsel's absence from trial at a time when crucial testimony regarding the events leading to R.B.'s arrest, eventual charges of child endangerment, and the removal of A.L.B.M. from her custody stripped the trial of any adversarial characteristics whatsoever. A conclusive presumption of prejudice arises in this instance. State v. Fritz, 105 N.J. 42, 61 (1987).

That R.B. was denied the rudiments of her right to counsel and to due process protections during this period requires no additional comment. Neither she nor her attorney was present on August 30 and September 1, and R.B.'s fundamental rights were sacrificed as a result.

We recognize that our resolution of this appeal prolongs the period during which A.L.B.M.'s status remains unresolved. However, she continues to reside with her maternal grandmother, who has maintained custody of the child since she was one month old. To that extent, continuity and stability have been maintained. We recognize as well the difficulties that R.B. will face upon retrial in establishing her fitness as a parent in light of what may be an intractable addiction. However, '[w]hen the State moves to destroy weakened family bonds, it must provide the parents with fundamentally fair procedures." A.W., supra, 103 N.J. at 612 (quoting Santosky, supra, 455 U.S. at 753-54, 102 S. Ct. at 1395, 71 L. Ed. 2d at 606). Here, considerations of fairness dictate that R.B. not be deprived of the right to present a counseled and meaningful defense to the Division's complaint. Upon remand, we do not foreclose consideration by the court of such requests for discovery as counsel may find, upon consultation with his client, to be warranted. We decline to consider discovery issues at this time because such consultation has not taken place and the need for the discovery has consequently not been demonstrated.

 
Reversed and remanded for further proceedings in accordance with this opinion.

(continued)

(continued)

23

A-3541-04T4

RECORD IMPOUNDED

November 2, 2005