DIVISION OF YOUTH AND FAMILY SERVICES v. K.K.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1358-08T41358-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.K.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF C.K. and A.K.,

Minors.

__________________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Rodr guez, Payne and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-84-08.

Yvonne Smith Segars, Public Defender, attorney for appellant K.K. (Dianne Glenn, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors C.K. and A.K. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

K.K., the birth mother of C.K., a girl now age sixteen, and A.K., a boy now age fourteen, appeals from the termination of her parental rights. She asserts claims of ineffective assistance of counsel. V.K., the birth father, voluntarily surrendered his parental rights. K.K. and V.K. also have three adult children who are not involved in the present matter. The Law Guardian urges that the judgment should not be vacated on the grounds of ineffective assistance. We affirm.

V.K. and K.K. separated in July 2006. Shortly thereafter, one of their adult children alleged that there were unstable conditions in the home, domestic violence and alcohol abuse. This allegation was not substantiated.

However, on the morning of December 1, 2006, K.K. was at the Bergen County Courthouse regarding a visitation motion brought by V.K. While in court, the substance abuse evaluator for the Bergen County court, Dawn Fitzgerald, noted that K.K. "reeked" of alcohol. Fitzgerald was concerned that K.K. would be "going home intoxicated to the children." K.K. voluntarily agreed to a urine screen and breathalyzer, if V.K. would agree to be similarly tested. After three hours in court, K.K.'s breathalyzer registered a blood alcohol level of 0.16. Fitzgerald phoned in a referral to the Division of Youth and Family Services (DYFS). DYFS determined that an emergency removal for both children was appropriate and placed C.K. at the Conklin Youth Shelter and A.K. in a foster home. On February 6, 2007, C.K. was moved to a foster home and on October 3, 2007, A.K. was transferred to the same foster home. DYFS continued to consider relatives as placement options, but all were eventually ruled out. Both children remain presently with their foster parent, who plans to adopt them.

K.K. was evaluated by Preferred Children's Services. Based on this evaluation, K.K. was referred to the Bergen County Addiction Recovery Program for intensive outpatient treatment. K.K. only attended the intake session and one group session. She was discharged for non-attendance.

K.K. went to a treatment program at the Bergen Regional Medical Center. She was diagnosed with alcohol abuse and dependence, abdominal pain, possibly alcohol gastritis, and possibly pancreatitis. For three days she was admitted to the detoxification floor for alcohol detoxification.

Following discharge, K.K. tested positive for opiates and failed, on three occasions, to attend a substance abuse reevaluation at Preferred Children's Services. A psychological evaluation of K.K. was never completed because she refused to attend a psychological evaluation and further refused to allow a psychologist to come to her home to perform the evaluation.

DYFS provided weekly visitation for K.K. with her children at the DYFS office. However, from January through March 2007, K.K. failed to attend many of the scheduled visitation dates. Therefore, K.K. was referred to the Care Plus New Jersey Program (CPNJP) for supervised visits. K.K. was required to call and confirm the weekly visit or else the visit would be cancelled. However, after several warnings, visits through CPNJP were terminated as a result of K.K.'s inability to comply with policies and procedures. Following K.K.'s termination from CPNJP, DYFS made attempts to arrange a visitation schedule between her and her children. K.K. did not respond. K.K.'s last visit with the children was on May 29, 2007.

After many failed attempts at contact, a DYFS supervisor did speak with K.K. in April or May 2008. K.K. did not provide any plan for the care of her children nor did she state when she would be ready to care for her children.

K.K. failed to appear in court for the first three compliance review hearings. She finally appeared at the November 15, 2007 hearing where previous services were continued. By this time, K.K. and her paramour were residing together in a two-bedroom apartment. Terms were set for K.K. to provide legal documentation regarding the paramour's power of attorney over her affairs and for the children's supervised visits with their adult sister. Judge Harold C. Hollenbeck also entered a permanency order, approving DYFS's plan for termination of parental rights followed by adoption. The judge found that it would not be safe to return the children home in the foreseeable future because:

mother has significant health issues as well as mental health [and] substance abuse issues that have not been addressed. Father recently tested positive for illegal substances and has not engaged in substance abuse treatment. Father's home was denied through an Interstate home study [and] he is currently incarcerated.

Throughout the protective services proceedings, K.K. was represented by counsel.

On January 10, 2008, DYFS filed a complaint for guardianship and sought an order to show cause for an order terminating parental rights.

At the first case management conference on the guardianship proceeding, Judge Birger M. Sween ordered assignment of counsel for K.K. At a subsequent conference, C.K. made a statement to the court that she wanted to be adopted as soon as possible. C.K. stated:

My mother has had enough changes [sic]. She has not done anything to get me and my brother back, and I think it's too late now. So I think her rights should just be taken away. [J.C.], my foster mom, has all the responsibilities of a normal mom, so I think it should just be final legally that she is my mother.

Judge Sween ordered K.K. to attend psychological and bonding evaluations. He further ordered that one of K.K.'s adult daughters was permitted to have unsupervised contact with C.K. and A.K.

Due to her failure to comply with court orders, the judge suppressed K.K.'s defense. K.K. did not comply with the court order requiring her to be at home to meet with DYFS caseworkers. Default was also ordered against K.K. for her failure to appear in court.

K.K. was represented by Kenneth Grossman, who continued his representation through the guardianship proceeding.

Eventually, K.K. appeared in court via telephone. She explained that she had "two new cervical and thoracic problems on [her] spine" and she was "unable to . . . walk or sit for long periods of time." K.K. also stated that her "health would have to be stabilized in order for [her] to defend [herself]," which might take "a couple of months." The judge vacated the default entered against K.K. and ruled that K.K. could testify by telephone at the guardianship trial. The judge found that any psychological evaluation the defense obtained would be suppressed because K.K. refused to cooperate with DYFS in obtaining its evaluation.

The guardianship trial was held on September 8, 2008, before Judge Sween. Due to alleged illness and transportation issues, K.K. appeared via telephone.

DYFS's first witness was the foster mother, J.C., who testified that when C.K. first moved in with her she "seemed very depressed." However, C.K. has "adjusted really well now and . . . just acts like a normal teenager." According to J.C., "[w]hen [A.C.] first came he was very quiet, reserved. His self-esteem was very low . . . . But since then he's blossomed into like he grew four inches. He's on the football team . . . . [H]e's come out of his shell. He's much more talkative." At the time of the trial, both children were doing well in school, getting grades of A and B, and had friends. The judge allowed J.C. to read a letter that C.K. had written to her mother and which both children had signed. Defense counsel objected, but the judge found that it had already been entered into evidence and that it represented the children's wishes. The letter represented the children's desire to be adopted by J.C. and for K.K. to put their interests first and finally let them go.

The only other witness called by DYFS was Lori Laverty, the DYFS caseworker assigned to C.K. and A.K. Laverty testified to the events of December 1, 2006, when K.K. appeared in court inebriated. According to Laverty, although DYFS attempted, there were no relatives willing and able to care for the children. In fact, two of the children's adult siblings expressed to Laverty their contentment with the children being adopted by J.C. Laverty further conveyed to the court DYFS's plan to have J.C. adopt C.K. and A.K. following the termination of K.K.'s parental rights.

Laverty also testified as to DYFS's efforts in providing services to K.K. for substance abuse issues and for visitation between K.K. and her children. Laverty stated that K.K. never provided DYFS with a plan for the care of the children. Nor did she provide DYFS with evidence of her medical condition and when she would be ready and able to care for the children.

The judge entered judgment on September 22, 2008, and issued a written opinion. He found that DYFS proved all four prongs of the best interest of the child test by clear and convincing evidence. Accordingly, the judge terminated K.K.'s parental rights to C.K. and A.K.

On appeal, K.K. argues that she received ineffective assistance of counsel in the protective services matter. She alleges that assigned counsel should not have permitted her to sign a stipulation of abuse and neglect. K.K. further argues that in the guardianship proceeding, assigned counsel was ineffective for failing to object to the admission of a letter written by C.K. and to hearsay testimony of the foster parent and further, for not reminding the judge that K.K. could testify. We disagree.

The Supreme Court has recognized that the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution serves as a protection against the termination of parental rights without the assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006)). See also Rodriguez v. Rosenblatt, 58 N.J. 281, 295 (1971) (requiring assistance of counsel where "consequence of magnitude" at issue).

The Legislature has provided further protection regarding parental rights. N.J.S.A. 30:4C-15.4(a), provides that in any action concerning the termination of parental rights "the court shall provide the respondent parent with notice of the right to retain and consult with legal counsel." Ibid. Moreover, if the parent "is indigent and requests counsel, the court shall appoint the Office of the Public Defender to represent the parent." Ibid. The performance of required counsel must be effective, pursuant to both the constitutional and statutory basis for the right to counsel in termination cases. B.R., supra, 192 N.J. at 306.

In evaluating whether counsel's assistance was ineffective in parental termination cases, the Supreme Court has adopted the principles enunciated in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984): (1) was counsel's performance objectively deficient; and (2) did counsel's performance prejudice defendant to the extent that the result of the proceeding would have been different but for counsel's unprofessional errors. B.R., supra, 192 N.J. at 308-09. See also State v. Fritz, 105 N.J. 42, 60-61 (1987) (adopting the Strickland standard in New Jersey).

K.K. first argues that her assigned counsel in the protective services matter was ineffective for allowing her to sign a stipulation of abuse and neglect. On December 21, 2006, K.K. stipulated that on December 1, 2006, she tested positive for alcohol and being under the influence put the children at risk of harm. K.K. now contends that the fact that she tested positive for alcohol was not conduct that rises to the level of abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c) and thus her counsel should not have permitted her to stipulate to such. We disagree. N.J.S.A. 9:6-8.21(c)(4)(b) provides that a parent or guardian abuses a child if he or she fails to exercise a minimum degree of care "in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . ." It is self evident that taking care of children with a blood alcohol level of 0.16 qualifies as creating a substantial risk of inflicting harm on your children. Therefore, we conclude that defense counsel's performance did not fall below an objective standard of reasonableness in allowing K.K. to sign said stipulation to abuse and neglect. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Furthermore, K.K. does not show that, but for the stipulation, the judge would not have found abuse and neglect. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. K.K. therefore cannot allege that she was prejudiced by counsel's performance because K.K. did not address why, in a fact-finding hearing, the judge would not have made the same finding she stipulated to. Because K.K. has not established either prong in Strickland, counsel was not ineffective. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

K.K. also argues that her assigned counsel during the guardianship proceeding, was ineffective for failing to object to the admission of a letter written by C.K. and for failing to object to the hearsay testimony of the foster mother, J.C., regarding conversations between her and C.K. about C.K.'s desire to be adopted by J.C. We note that counsel did object to J.C.'s reading of C.K.'s letter into the record on hearsay grounds. However, as we have previously noted, the letter had already been admitted into evidence at the beginning of trial so the judge allowed J.C. to read the letter into the record.

K.K. has not established that the second prong of the Strickland test has been met here. Even if counsel was ineffective in not objecting to the letter's admission at the beginning of trial and to the hearsay testimony, K.K. cannot establish that but for this deficiency the result would have been different. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

The letter J.C. read only reiterated the fact that the children wished for K.K. to relinquish her rights to them so they could be adopted by J.C. C.K. had already testified to such in a prior hearing and a DYFS caseworker further testified to the children's wishes. Therefore, if the letter had been excluded from evidence, the result would not have changed as the children's wishes to be adopted by J.C. were still a part of the record before the judge. Ibid.

Moreover, as the children are over the age of ten and have "reached a level of maturity that allows [them] to form and express an intelligent opinion," their wishes should be considered by the court. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 113-14 (2008). At a prior hearing, C.K., at her own initiative, requested an opportunity to be heard. C.K. stated during that hearing that she wished her adoption by J.C. to happen as quickly as possible. The letter J.C. read during the guardianship trial only reiterated what C.K. had already made clear to the judge.

Finally, K.K. argues that counsel in the Guardianship proceeding was ineffective for not requesting that the default against K.K. be formally vacated and further for not reminding the trial judge that he had in fact determined that K.K. could testify and participate in the trial. Contrary to K.K.'s contentions, the default entered against her on June 20, 2008 was vacated on July 18, 2008. The judge, however, suppressed K.K.'s defense because of her failure to comply with a court ordered DYFS psychological evaluation. K.K. was therefore precluded from offering her own expert in that regard. The judge did state at the July 18, 2008 hearing that he would permit K.K. to testify via telephone at the guardianship trial.

The decision of what witnesses to call is part of counsel's trial strategy. State v. Arthur, 184 N.J. 307, 321 (2005). To overcome this presumption, when the failure to produce expert or lay witnesses is claimed, an evidentiary proffer should be included on appeal. B.R., supra, 192 N.J. at 311. The evidentiary proffer requires a certification from a potential witness regarding "the substance of the omitted evidence along with arguments regarding its relevance." Ibid.

Here, K.K. has not provided a certification regarding the substance of the evidence she would have provided if called to testify, nor has she provided the relevance of such evidence. Therefore, even if counsel was deficient in failing to call K.K. to testify on her behalf, prejudice cannot be established as the proper certification was not provided on appeal. This court has no evidence as to what K.K. would have provided that would have changed the outcome of the guardianship trial. In fact, in her brief, K.K. does not even argue that her testimony would have changed the outcome. Rather, K.K. argues only that her Fourteenth Amendment due process rights were violated by counsel's failure to call her as a witness.

However, whether K.K. was prejudiced by the judge pursuant to a curtailment of her due process rights is not at issue here, as a due process claim arises through State action. The judge here did not tell K.K. she could not testify, but rather, defense counsel told the judge that he was not calling any witnesses. Therefore, K.K. does not have a due process claim. See N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 465 (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 situation would perhaps be different if K.K. had informed counsel that she wanted to testify and counsel had refused this request. Such a refusal by counsel would potentially support an ineffective assistance of counsel claim through a due process analysis. Ibid. See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). K.K., however, does not contend that she told counsel she wanted to testify and he refused her request.

 
Affirmed.

(continued)

(continued)

15

A-1358-08T4

RECORD IMPOUNDED

June 2, 2009