NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2759-07T42759-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.C., a minor.

___________________________________

Argued telephonically January 8, 2009 - Remanded - January 8, 2009

 
Reargued telephonically (post-remand) - June 2, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-23-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the briefs).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Yudelka R. Felipe, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minor (Patricia A. Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendant A.C., the biological father of a boy who is now five years old, appeals the Family Part's judgment terminating his parental rights. A.C. also appeals the Family Part's order, entered following a remand pursuant to N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301 (2007), rejecting his claims for relief based upon the alleged ineffective assistance of his trial counsel. We affirm.

I.

The child at the center of this litigation, Alan, was born on August 13, 2003. Alan's biological parents, A.C. and S.P., were not married to one another. Alan has a half-sister, T.P., who was born in August 2002. T.P.'s biological mother was S.P. and her biological father is unknown. At the time of Alan's birth, A.C. was incarcerated at the Garden State Prison.

The record reflects that A.C. has a lengthy criminal history. He had been incarcerated for the majority of Alan's life prior to the guardianship trial in November 2007. In particular, defendant was convicted of illegal possession of a controlled dangerous substance ("CDS") in 2001. After violating probation on that offense, defendant was re-incarcerated from March 2003 through August 2004. According to defendant's brief, he was imprisoned again on a different matter in or about December 2004 or January 2005, and he was not released again until January 2006. Defendant was subsequently convicted of possession of a handgun for an unlawful purpose and was incarcerated for that offense from July 2006 through May 2008. Counsel represented to us during the most recent oral argument that defendant has not been incarcerated again since his release approximately a year ago in May 2008.

The Division of Youth and Family Services ("DYFS" or "the Division") first became involved with Alan in the month after his birth. On September 25, 2003, the Division learned that Alan had been admitted to the hospital with strep meningitis on September 10, 2003. The Division learned that S.P. had also been recently admitted to the hospital for difficulties with sickle cell anemia. Five days later, on September 30, 2003, the Division received a report from a relative, intimating that S.P.'s illness may have been preventing her from properly caring for Alan. The Division did not, however, intervene at that point in time.

On December 22, 2003, the Division received another report of concerns about Alan's well-being. The report came from a nurse, who informed the Division that Alan had been diagnosed with whooping cough on October 17, 2003 and that S.P. had failed to follow up for additional treatment. Following its receipt of the nurse's report, the Division sent a home inspector to S.P.'s residence, a house owned by S.P.'s grandmother. The inspector found that the home was unkempt, cluttered, had safety issues and lacked cribs. Consequently, the Division created a plan for S.P. to address the problems in her residence. S.P. temporarily remedied these particular concerns and the investigation was closed on July 22, 2004.

In March 2005, a blood test revealed that S.P. had recently smoked marijuana. In addition, S.P. was in need of care for her recurring bouts with sickle cell anemia. A.C., meanwhile, was apparently back in jail or prison and thus unavailable to assist S.P. Accordingly, the Division was concerned about the care being provided to Alan and T.P. In an effort to remedy the situation, the Division attempted to find a placement for the children with relatives.

On April 18, 2005, the Division conducted another investigation of S.P.'s home. The investigator determined that the conditions were deplorable and that the children were filthy. The following day, April 19, S.P. returned to the hospital. Upon learning that S.P. was back in the hospital, the Division decided that an emergency removal was needed. Consequently, on April 25, 2005, the Division filed in the Family Part an order to show cause and a complaint for care, custody and supervision of the two children (the "protective services" or "FN" case).

On the return date of the order to show cause, May 23, 2005, defendant was produced to the courtroom from his incarceration. The hearing was continued on June 1, 2005, at which time the court ordered that the Division implement parenting services for S.P. A plenary fact-finding hearing was scheduled for August 3, 2005.

Following intermittent hearings related to the order to show cause in May and June 2005, Alan and T.P. were placed in foster care with M.N. Both children have continuously remained in M.N.'s foster care in the ensuing four years. M.N. now wishes to adopt them.

At the time of the children's removal in 2005, A.C. was incarcerated. He did, however, appear at several of the FN hearings. He suggested T.B., a paternal aunt, as a potential placement for the children. The Division investigated that suggestion, and found that T.B. did not have adequate sleeping arrangements. Moreover, that T.B.'s husband failed to complete a background check.

At the August 2005 fact-finding hearing, S.P. entered into a stipulation that her use of marijuana had made her incapable of providing appropriate housing for Alan and T.P. Eventually, S.P. agreed to a surrender of her own parental rights.

In December 2005, defendant, who was still incarcerated, appeared with his counsel in court. At that time the court ordered a psychological evaluation of defendant. The court also ordered the Division to arrange supervised visits between defendant and the children. However, for reasons that are not entirely clear from the record, such visitations did not occur, either at defendant's penal facility or elsewhere. The Division's progress notes for Alan, which were admitted as an exhibit at the guardianship trial, contain an entry dated December 5, 2005, indicating that defendant "has not responded to [the case] worker" in scheduling visitation. At the time that entry was made, defendant was still incarcerated.

In March 2006, defendant, who by that point was briefly out of prison, appeared with his counsel for a compliance hearing. At that hearing, the court ordered paternity testing to verify that defendant was the biological father of Alan and also to rule out whether defendant was T.P.'s father. The court also required defendant to undergo a substance abuse evaluation and to complete his previously-ordered psychological evaluation. Another court hearing was then scheduled for April 2006.

Despite having received personal notice of the April 2006 hearing and being out of prison, defendant failed to appear for it. Defendant also failed to appear at the next scheduled hearing on July 12, 2006, although by that point he may have been re-incarcerated on the weapons charge.

On October 2, 2006, the court conducted another hearing. Defendant, who was then incarcerated, was produced for that hearing. The Division presented at the hearing a plan for the termination of both parents' rights. The court found that plan acceptable because it appeared that S.P. and A.C. were unable to provide a safe and stable home for Alan.

Following the October 2006 hearing, defendant underwent a psychological evaluation with the Division's expert psychologist, Rachel Jewewicz-Nelson, Ph.D., on November 6. 2006. Among other things, Dr. Nelson noted that defendant "expresse[d] no empathy for the potential emotional harm and hardship that [Alan] and T.P. will experience if they are separated from each other . . . [.]" Dr. Nelson also found that defendant was functioning as a mid-to-late adolescent and that "[h]e still has a sense of invincibility that contributes to illegal behaviors and maladaptive coping." She added that defendant was at a "high risk" for anti-social activity.

Case management conferences were held in November 2006 and January 2007. At the January 2007 hearing, the court ordered bonding evaluations between defendant and the children. Defendant's bonding evaluation took place on February 22, 2007. Dr. Robert Kanen, Psy.D., another Division expert, performed the evaluation and issued a report. His report made the following significant observations:

[Defendant] came into the room very happy to see them. Neither child responded. Neither child made an attempt to go toward the father.

. . . .

Both children crawled under the table. The children were severely avoidant of [defendant] . . . . They were detached and seemed emotionally frozen.

. . . .

[The children] show no bond toward [defendant]. [He] has been minimally involved in their lives and has been unavailable to parent them due to incarceration and an unstable lifestyle. He admits that he has never cared for them. The children showed evidence of deeply disturbed and severely impaired attachment disorder. [T.P.] was so traumatized by being in the presence of [defendant] that she hid under a table for most of the evaluation . . . . When she did [] respond to [defendant] . . . [s]he . . . yelled at him to leave her brother alone.

. . . .

The father behaved very inappropriately with [Alan], attempted to frighten him as a way to relate to him, and was engaged in very physically rough play with him. He did not discipline [Alan] when [Alan] misbehaved.

. . . .

It is the examiner's opinion, based on a reasonable degree of psychological certainty, that [Alan] and [T.P.] would not suffer serious and enduring harm if permanently separated from [defendant].

Following his bonding evaluation of the parents, Dr. Kanen conducted a separate bonding evaluation on March 2, 2007, between the children and M.N., the foster mother. During that evaluation, M.N. discussed with Dr. Kanen her intention to adopt the children. Dr. Kanen observed the children calling M.N. "mommy." He also noted that T.P. sang a song with lyrics "we are a happy family." Dr. Kanen found that M.N. appropriately set limits on Alan's play. Based upon these and other observations, Dr. Kanen concluded that the children would suffer a "separation reaction" which would cause "serious and enduring harm" if they were removed from M.N.'s care.

On April 13, 2007, defendant appeared in court with his trial counsel for a case management conference. During that hearing, the court scheduled a trial date of May 24, 2007. The trial date was rescheduled twice before it ultimately commenced on November 7, 2007.

At the beginning of the trial, S.P. voluntarily surrendered her parental rights to both children. The Division thereupon proceeded solely against defendant. In support of its case, the Division relied upon the expert testimony of Dr. Kanen and Dr. Nelson.

Just prior to the Division presenting its case-in-chief against him, A.C. informed the court that he was "firing" his trial attorney. Moments later, after the hearing with respect to S.P. had been completed, the following colloquy occurred:

THE COURT: All right. So now we'll proceed with the trial for the termination of the parental rights of A.C. to his son . . . .

[DEFENDANT A.C.'S TRIAL COUNSEL:] I'd just like to ask my client for the record. At the moment you are satisfied with my services?

[A.C.:] I'm stuck with you. Go ahead.

. . . .

THE COURT: Okay. Alright, now, are you aware of the nature of these proceedings? Namely, this is an application by the Division to terminate your parental rights with respect to [Alan], do you understand that?

[A.C.:] Yeah, I know that.

After the Deputy Attorney General representing the Division gave an opening statement, A.C.'s counsel asked for an adjournment. The request was based, in part, upon A.C.'s assertion that he had not been in court in "seven, [or] ten months" and that he allegedly knew "nothing about this [proceeding]." A.C.'s counsel then added:

Your Honor, this case was just put on the calendar I think last week at this time. I've been tied up on matters, including a lengthy factfinding. Yesterday was a holiday. I really haven't had sufficient time to prepare this case in the manner in which it might have been prepared had I had more - more notice that the case was on.

[(Emphasis added).]

After further colloquy, the trial judge denied the adjournment request, citing the child's interest in attaining closure. Moments later, A.C. asked the judge, "Can I relieve him [A.C.'s trial counsel] and just go pro se then?" The judge denied that request. A.C.'s counsel then made the following application:

Your Honor, at this point, I would make the motion to be relieved because I think that the communication between myself and my client has become so poor that I'm really not able to effectively represent him.

[(Emphasis added).]

The application was denied and the trial proceeded.

The first witness to testify was Dr. Kanen, whose report was admitted into evidence. Dr. Kanen described that A.C. was "very, very rough with [Alan]." He also testified that the children did not respond to A.C. during the bonding session for "20 to 30 minutes" and that once A.C. initiated contact with them, Alan "got out of control very quickly." Dr. Kanen noted that Alan did not show any affection towards A.C. and that, at one point, A.C. "grabbed the boy by the braid" as a way of trying to restrain him. When Dr. Kanen asked the DYFS worker to leave the room, the children wanted to leave with the worker. Dr. Kanen perceived that the children "were eager to leave," that the children were "very uncomfortable" with A.C., and that "[i]f there was an attachment [with A.C.], it was a very severely impaired attachment."

By comparison, Dr. Kanen testified that M.N. kept Alan "under control" and that Alan was "happier [and] more relaxed" with her. Dr. Kanen opined that the children were "pretty securely attached and bonded to [M.N.]." Consistent with his written report, Dr. Kanen reiterated that if the children were separated from M.N. they "would suffer harm."

At the end of Dr. Kanen's direct testimony, A.C.'s counsel asked the court for a moment to confer with his client. When the proceeding commenced, counsel informed the judge that A.C. wanted to "rest his case," and that a decision be "based on the evidence you have so far heard and that we proceed from there." A.C. personally addressed the court, and added:

I don't want my lawyer to do anything with this case because after I left I talked on the phone and I found out I don't want him to do anything with this case because he is not fit to legally represent me and yet still he is being made to so, therefore, I want to rest his specific case . . . you make your ruling and I want him to put into appeal where then I can get a paid lawyer to come back and then we can contest.

[(Emphasis added).]

The trial judge informed A.C. that his counsel of record was going to remain in the courtroom, but that if A.C. did not want his counsel to cross-examine witnesses, "that's up to you."

The court then heard testimony from Dr. Nelson, whose report was also admitted into evidence. During her testimony, Dr. Nelson informed the court that she had obtained a detailed historical background from A.C. Based on her discussions with A.C., Dr. Nelson perceived that he had no intention of obtaining custody at that time, due to his incarceration, but that he had hoped family members could take care of Alan in the meantime.

Dr. Nelson opined that A.C. was not capable of developing an "intimate close relationship" with people in general. She also observed that A.C. was unable to maintain stability in employment and housing, and that on at least one occasion he had attempted to commit suicide. She determined that A.C. had "poor impulse control" and an inability to delay gratification.

Dr. Nelson was particularly disturbed by A.C.'s characterization of the possibility of another change in the children's custody, referring to it simply as a "change in scenery." Lastly, Dr. Nelson concluded that:

[A.C.] is not fit to parent a child and that he's not likely to become more fit to parent a child with additional therapy or services because the personality makeup and structure that he has just does not lend itself to the capacity to develop the kinds of attachments and the kinds of commitments that are necessary for parenting.

[(Emphasis added).]

Defense counsel did not cross-examine Dr. Nelson.

The first day of trial concluded with the testimony of Tasha Westbrook ("Westbrook"), a DYFS caseworker who was assigned to T.P. and Alan at that time. Westbrook detailed the attempts that the Division had made to find a placement of the children with relatives. She indicated that A.C. had not put himself forward to the Division as a potential caretaker for Alan. At the end of Westbrook's direct examination, A.C.'s counsel stated that "[m]y client takes the position that I was not fit to represent him and thereby rests."

The trial concluded the next day, November 8, 2007. Defendant was not present. The Law Guardian and the Deputy Attorney General presented closing arguments. A.C.'s trial counsel, assertedly at the request of his client, did not present a summation.

Both the Law Guardian and the Deputy Attorney General advocated that A.C.'s parental rights should be terminated. The Law Guardian argued that, by virtue of A.C.'s continued incarceration, harm would befall Alan because he would lack a parent figure. The Law Guardian added that A.C.'s continued incarceration demonstrates that he will not be able to eliminate that harm. The Deputy Attorney General echoed these arguments. At the conclusion of summations, the trial judge informed the parties that he would reserve his opinion so that he could forward copies of the transcripts to A.C. in prison and thereby give A.C. a chance to respond.

Six weeks later, the trial judge rendered his oral decision on December 20, 2007. The judge found that the Division had proven its case by clear and convincing evidence, demonstrating "that the best interest[s] of [Alan] require[] that the parental rights of his father, [A.C.], be terminated." The judge further found that "all four prongs of [N.J.S.A.] 30:4C-15.1" had been satisfied through "documents, reports and through testimony adduced at trial . . . [.]"

In particular, the trial judge found that A.C. had harmed his child by his incarceration during the majority of the child's life, that he had never cared for Alan, and that "although he would be interested in knowing the child, he had [expressed] no interest in obtaining custody of the child for purposes of care and supervision."

Second, the trial judge found that A.C.'s continued incarceration, coupled with his failure to identify a competent person available to care for Alan, demonstrated that the harm would not be abated.

With respect to the third statutory factor, the trial judge initially discussed the services provided to S.P., the mother. The judge then noted that Dr. Nelson's testimony reflected that no services could provide a beneficial change for A.C. The judge noted, albeit without specificity, that the Division had attempted to provide visitation with Alan. The judge observed that both expert psychologists had "indicated that defendant's position was properly characterized as narcissistic" and that A.C. was objecting to the termination "for his own benefit rather than the best interest of the child."

With respect to the fourth statutory factor, the judge found that a "strong bond" exists with M.N. and that, by comparison, A.C. does not "have the ability to parent . . . [.]" The judge particularly relied upon to the testimony of Dr. Nelson, which indicated to the court that A.C. would be unable to provide a "stable, consistent secure home or family life." The judge further referred to Dr. Nelson's opinion that the likelihood of further antisocial acts by A.C. and his incarceration remained high. In sum, the judge found that the "child will benefit significantly by staying where he is and by termination of the father's parental rights."

This appeal followed. Defendant argues that DYFS failed to prove by clear and convincing evidence all four prongs of the termination criteria. He contends that he does indeed wish to raise Alan, and that the trial court improperly relied upon the expert proofs presented by DYFS recommending the termination of his parental rights. Defendant also contends that he was denied the effective assistance of trial counsel assured to him pursuant to B.R., supra, 192 N.J. at 301, and that the court further erred in declining his request to represent himself at trial after making known his dissatisfaction with counsel.

After the initial appellate briefs, appendices and trial transcripts were filed with this court, we heard a telephonic oral argument on January 8, 2009, to consider whether the matter should be temporarily remanded pursuant to B.R., supra, 192 N.J. at 311, to enable the record to be developed further on the issues of counsel's alleged ineffectiveness. We issued a remand order that same day, directing counsel to furnish the trial judge with courtesy copies of the briefs, appendices and transcripts filed on appeal, including a certification from A.C. dated August 19, 2008, detailing why he believed that his trial counsel was ineffective. We specifically vested the trial judge on remand with the discretion to "take testimony from A.C.'s former trial counsel, A.C., and other relevant witnesses on matters germane to the issues of alleged ineffectiveness." We also directed defense counsel to order an expedited transcript of the remand proceedings once they were completed, and provided for the submission of post-remand supplemental appellate briefs.

On February 17, 2009, the trial court conducted the remand hearing. All parties were represented, with A.C. being represented by a different attorney than his former trial counsel. A.C. failed to appear for the hearing. His successor trial counsel could not offer to the court any explanation for his absence. Given the expedited nature of the remand, see B.R., supra, 192 N.J. at 311, and the child's need for permanency, the trial judge decided to go forward with the proceeding.

Defendant's former trial counsel testified at considerable length at the remand hearing. He confirmed that he had represented A.C. in both the "FN" protective services matter and the "FG" guardianship matter, and that he had been familiar with the case for about a year-and-a-half.

Trial counsel explained that he had been scheduled to try another case the same day as A.C.'s guardianship trial. He noted that he had received the trial notices, due to mailing delays, only about eight days before trial, and therefore "didn't realize until the last minute that [A.C.'s case] was actually on for trial." Counsel testified that he "had not the full sufficient time to look through the [discovery] documents," time that he "would have preferred to have." Counsel also acknowledged that he had not communicated with A.C. since the last case management conference that A.C. had attended. Even so, counsel maintained that he was sufficiently prepared to try the case. He testified that he had "a good grasp of the facts of the case," was "fully familiar with the record," and that, after his adjournment request was denied, he was nonetheless able to proceed.

When questioned about whether he knew that A.C. had not actually been receiving in prison the visitations with Alan that the court had authorized prior to trial, A.C.'s former counsel initially stated that "[n]obody ever told him that." More specifically, he denied A.C. "ever actually making an issue about the fact that he wasn't getting visits[.]"

Trial counsel asserted that it was his client's obligation to telephone him or otherwise let him know that the visits with his child were not occurring. Counsel further posited that even if he had known that such visits were not taking place, he might not have sought enforcement of the visitation as "a matter of strategy." Counsel noted in this regard that "the bonding evaluation [with A.C.] went pretty awfully," and that enforcement of visitation could have "resulted in three bad visits, instead of one bad visit."

Trial counsel further acknowledged that he had not visited defendant at the prison or arranged a video conference with him in the weeks or months leading up to trial. Although he conceded that such contact might have been "good customer service," he nevertheless deemed its non-occurrence inconsequential. In particular, counsel asserted that "I don't know what I would have learned [from conversing with A.C. prior to the trial date] that I could have used at trial, that I couldn't learn in three minutes when he was sitting at the counsel table."

Trial counsel described the circumstances that prompted A.C.'s extemporaneous request to have him relieved as his attorney on the first day of trial. He stated that his overall trial strategy had been shaped by a perception that "the mother [S.P.] probably had a slightly better chance of [] keeping the children than [A.C.] did, regardless of what [A.C.] may have thought." Consequently, counsel's "main strategy was to sit there as a cheerleader for [A.C.]." However, when S.P. opted to surrender her parental rights, that strategy was no longer available, which caused counsel and A.C. to become nervous and "everything just kind of boiled over."

According to trial counsel, he had explained to A.C. during the course of representation that he had only a "very remote" chance of prevailing at trial, which he estimated for A.C. as statistically about one in ten. In that regard, trial counsel noted A.C.'s frequent incarceration, his minimal prior contact with the children, and the fact that, once released from prison, A.C. would not be going "home to an apartment and a wife just waiting there for him." Instead, A.C. "was going to have to set his own life up." Counsel denied A.C. ever speaking with him about a plan for employment opportunities or for where he would live after he was released. Still, A.C. allegedly "expressed the desire to reunite with his son in order to prove that the system had failed him."

Despite his trial counsel's pessimistic forecasts of an adverse trial judgment, A.C. did not seek to relieve him prior to the trial date. Trial counsel did recall that A.C. had expressed to him frustration because he appeared to think that counsel had persuasive abilities that he was not using. According to counsel, A.C. sometimes "would think we had magic words that can just open up the courtroom, and the [j]udge will magnificently decide, oh yes, DYFS is wrong . . . they've been wrong all along. They're out to get you[,] defendant, and, yes, defendant, you're going to have your child back." Counsel suggested that such false impressions can derive from clients watching law dramas on television. He added, "[i]t just doesn't work that way."

Counsel recounted that after the motion to adjourn the trial failed, A.C. stated, for the first time, that he wanted new counsel or, in the alternative, to be allowed to represent himself. He recalled that A.C. "wanted to proceed without me being able to cross examine the witnesses[.]" After the court declined to relieve counsel, the trial went forward, with defense counsel essentially abiding by his client's instructions to stand mute.

Defendant's remand counsel attempted to have the judge hear testimony from a proposed expert, Professor Martin Guggenheim of New York University School of Law. Professor Guggenheim, who has taught clinical law and family law subjects since 1980, was retained by the defense to critique the performance of defendant's original trial counsel and to highlight counsel's alleged inadequacies. Because the defense had not proffered an expert report from Professor Guggenheim and did not circulate a copy of his curriculum vitae until the morning of the hearing, opposing counsel objected to his testimony. Defense counsel countered that no written expert report was required under the Court Rules, and, moreover, that defense counsel had offered the Deputy Attorney General an oral telephonic summary of Professor Guggenheim's proposed testimony a few days prior to the remand hearing.

The trial judge granted the motion to bar Professor Guggenheim's expert testimony. The judge did so for two main reasons. First, the judge acknowledged the difficulties of fair notice to opposing counsel raised by the lack of a written expert report. In addition, the trial judge noted that Professor Guggenheim was not a psychologist or other mental health professional. Consequently, the professor could not opine on the likelihood that, even if A.C.'s trial counsel had performed differently, such enhanced performance would have altered the ultimate outcome of the case and the application of the four statutory criteria for termination. The judge recognized that the expert, if called, would have confirmed that "as a general rule, [an attorney's] failure to keep in touch and send correspondence, and so forth, is not good practice," but that invocation of those general principles does not suffice under B.R. to warrant relief without a more specific delineation of actual prejudice. The judge observed that defense counsel had not shown "with sufficient specificity" how the expert would show that better representation "would have had the likelihood of effecting the outcome[.]" Consequently, the court found no reason to postpone the remand hearing to attempt to have the expert made available to opposing counsel.

Based on the proofs adduced on remand, the trial court rejected A.C.'s contention that the final judgment of guardianship must be vacated because of alleged ineffectiveness of trial counsel. The judge found significant A.C.'s failure to attend the remand hearing and expose himself to adversarial questioning about the assertions of counsel's alleged deficiency that were contained in his appellate certification. The judge also found significant A.C.'s failure to raise any complaints about the lack of visitations with his son until the time of the appeal, suggesting that his silence may have been intentional, so as to put himself in an advantageous "position for an appeal."

Applying the two-prong standards of Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), as adopted for guardianship trials under B.R., supra, 192 N.J. at 307-09, the trial judge concluded that A.C.'s trial counsel was not deficient and that defendant received "the reasonable assistance of counsel." The court found that trial counsel was not unprepared and that he "knew his case," even if he could have "gone through it more exhaustively." Turning to the second prong of Strickland and B.R.__actual prejudice caused by counsel's deficient performance__the trial judge found that the outcome would not have been different. The judge ruled that "the evidence was overwhelming" that A.C. had not shown interest in parenting his child, and that in light of the proofs of the actual conditions that the child had been subjected to before his removal by DYFS, and the implications of the bonding evaluation, there was no basis to vacate the judgment.

Defendant has appealed the remand determination on substantive grounds, contending that the trial court was mistaken in finding that he received effective assistance of counsel and that the alleged ineffectiveness was of no consequence. Procedurally, defendant argues that the trial court also erred in excluding Professor Guggenheim's proffered testimony and further erred in curtailing the examination of A.C.'s trial attorney on certain issues. Lastly, defendant contends that the remand hearing erroneously omitted any explicit consideration of the propriety of the denial of A.C.'s ad hoc request to represent himself at trial.

Following supplemental briefing and the receipt of the remand transcripts, we heard further oral argument from counsel, both on the merits of the appeal of the original guardianship judgment and also on the remand issues. We now address these procedural and substantive issues.

II.

We begin our analysis, as we routinely do in DYFS guardianship appeals, with a recognition that "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the State, is protected by the United States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). This fundamental right, and the reluctance courts have to burdening it, is tempered by the notion that the government can intrude on parental rights when a child's "physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1982).

Mindful of the constitutional significance of the parent-child relationship, the Legislature and our courts have specified that parental rights may be terminated in a guardianship case brought by the Division only where the Division proves each of these four factors, by clear and convincing evidence:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to terminations of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a. See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

It is well settled that in evaluating an appeal of a Family Part judge's findings and application of these four termination criteria, our scope of review is "limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). "A reviewing court should uphold the factual findings undergirding the trial court's decision [in a DYFS termination case] if they are supported by 'adequate, substantial and credible evidence' on the record." Id. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Even where the focus of appeal is upon the trial judge's evaluation of the record and the implications to be drawn from it, reviewing courts still are obligated to "accord deference unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" Ibid. (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)). Moreover, we ordinarily do not second-guess the factual findings of judges, particularly judges in the Family Part, given the Family Part's expertise in matters that involve domestic relations and the welfare of children. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

Given that deferential standard of review, we are satisfied that the trial court had ample basis in the record to conclude that the Division had satisfied its burden of proof of the requisite elements to terminate A.C.'s parental rights. We affirm the findings of the Family Part, substantially for the reasons expressed in the trial judge's oral opinion of December 20, 2007. We offer some brief additional comments on these substantive findings.

First, with respect to the first prong of the statute, the proofs adequately showed that defendant A.C., by his own actions and inactions, endangered Alan's safety, health and development. N.J.S.A. 30:4C-15.1(a)(1). On multiple occasions prior to the Division's removal of Alan and his half-sister from their residence, DYFS representatives had observed the children in filthy and unsafe conditions, without cribs and other necessities. In one instance, the children were found covered in their own feces. We recognize that the children were then residing with their mother, S.P., and that A.C. was, for the most part, confined in prison.

Although defendant's incarceration cannot be the sole factor to justify a finding of endangerment, see N.J. Div. of Youth & Family Servs. v. L.A.S., 134 N.J. 127, 143 (1993), it is nonetheless a relevant factor. The record does not reflect that A.C. made any effort, during the intervals when he was out of prison, to safeguard his son's welfare or to correct the dangers surrounding him at home. Nor is there any proof that defendant endeavored while he was out of prison to develop a relationship with his son. In fact, his willingness to develop that relationship is, at best, ambiguous. Defendant's lack of initiative in this critical aspect is telling.

These same negative considerations substantially relate to the second prong of the statutory test, i.e., whether defendant was willing and able to provide a safe and stable home for his son. N.J.S.A. 30:4C-15.1(a)(2). In that regard, the court may properly take into account whether "separating the child from his resource family parents would cause serious and enduring emotional or psychological harm." Ibid. During his persisting times of incarceration, defendant failed to identify a suitable alternate caretaker for Alan. The one relative that he suggested, T.B., was ruled out as an option after due investigation and lack of cooperation from her husband. It appears that A.C. presumed or hoped that Alan's mother, S.P., would ultimately restore her own health to a point that she could provide for the children capably and safely. When S.P. declined further and A.C. remained in prison, the children would have been without competent care but for the intervention of DYFS. As a result of that necessary intervention, Alan has continuously been well cared for by his foster mother for the past four years, more than half of his life. In sum, the second prong was adequately proven.

We next consider the third prong of the statute and whether the Division made "reasonable efforts to provide services," and whether the court adequately considered "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). We acknowledge that this analysis is made more difficult by the constraints of A.C.'s frequent incarceration. We accept defendant's argument that a parent's incarceration does not relieve DYFS of its obligation to make "reasonable efforts" to provide services. On the other hand, case law has recognized that DYFS may not be able to provide all services to a parent in prison that it otherwise may provide to a parent who is not incarcerated. See, e.g., N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div. 2007); N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006).

Defendant faults DYFS for not being diligent in locating him while he was in prison and in not taking more initiative in helping him become a suitable caregiver. However, as we have already noted and the trial judge emphasized, the record bespeaks a posture of indifference on the part of A.C. about his lack of contact with the child. During the pretrial phases, the trial court provided defendant with the right of visitation, but he did nothing to exercise or enforce that right, either through his counsel or, apparently, at the pretrial court hearings that he attended after visitation had been ordered. Given this context, the trial court did not err in concluding that services were not unreasonably withheld.

Fourth and finally, we are persuaded that the factual chronology and the unrefuted expert testimony of Dr. Kanen and Dr. Nelson, the Division's evaluating psychologists, amply support the trial judge's finding that withholding termination would cause more harm than good for Alan. Our courts have repeatedly emphasized the importance of permanency and stability for children who have had to be removed from distressed environments. See, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 110 (2008); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 116 (App. Div.), certif. denied, 180 N.J. 456 (2004). It is "widely understood that a child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986); see also E.P., supra, 196 N.J. at 108. "Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement." C.S., supra, 367 N.J. Super. at 111 (internal quotations omitted); see also S.F., supra, 392 N.J. Super. at 209-10.

Here, Dr. Kanen's psychological evaluation of A.C. revealed troublesome impediments to his likely ability to parent. A.C.'s bonding session with Alan, as it was frankly characterized at the remand hearing by his former trial counsel, went "pretty awfully." Alan exhibited little desire to remain in his father's presence. By contrast, Alan has bonded well with his foster family, which wants to adopt him after four years of care. The trial judge did not err in concluding that the balance of benefits and harms weighed decisively in favor of termination.

We next turn to the issues of counsel's alleged ineffectiveness. In B.R., supra, 192 N.J. at 307-09, the Supreme Court held that a parent claiming that he was deprived of the constitutional right to effective counsel must satisfy the traditional two-part standard of Strickland. In particular, defendant must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the client's defense. Strickland, supra, 466 U.S. at 687, 1204 S. Ct. at 2064, 80 L. Ed. at 693. Under this standard, prejudice to a defendant is rarely presumed. State v. Fritz, 105 N.J. 42, 61 (1987). Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 688 n.26 (1984). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

In particular, our Supreme Court in B.R. mandated that a defendant's appellate counsel alleging ineffective assistance "must provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the [trial] lawyer's performance not been deficient." 192 N.J. at 311. That showing may require an evidentiary proffer, including potential certifications from witnesses who would have presented relevant competing evidence that defendant's former counsel failed to present at trial. Ibid.

Based upon the evidentiary proofs in the record (including A.C.'s appellate certification), as well as the additional proofs developed at the remand hearing, we affirm the trial court's ultimate conclusion that A.C. is not entitled to vacature of the final guardianship judgment because of ineffectiveness on the part of his trial counsel. In sustaining that conclusion, it is unnecessary for us to resolve the first prong of the Strickland/B.R. test__the alleged deficiency of trial counsel's performance__because we are satisfied that even if counsel's performance was deficient, his alleged shortcomings did not likely affect the substantive outcome of the case and cause actual prejudice to A.C.

Our review of trial counsel's performance is constrained by the fact that A.C. did not permit him to examine any witnesses, present any evidence, or make any arguments in summation. Because defendant stifled his attorney in this fashion, we cannot tell if counsel's allegedly deficient pretrial preparation manifested itself in poor courtroom advocacy. Defendant thus substantially invited the alleged error by his own conduct. The doctrine of invited error is "designed to prevent [a party] from manipulating the system." State v. Jenkins, 178 N.J. 347, 359 (2004). Here, defendant apparently sought to manufacture error, or at least worsen his situation, by tying his attorney's hands at trial. Although we do not need to reach the sufficiency of counsel's representation, the analysis would be tainted, in any event, by A.C.'s refusal to allow his counsel to undertake his best efforts at trial.

As a procedural matter, we agree with defendant that it would have been preferable for the trial court on remand to have allowed Professor Guggenheim, the proposed defense expert, to testify and critique trial counsel's actions and inactions from his perspective as a well-credentialed scholar on family law and clinical practice. See, e.g., State v. Ferguson, 255 N.J. Super. 530, 540-41 (App Div. 1992) (reviewing a criminal post-conviction relief hearing where a legal expert retained by the defense had been permitted to offer opinions about trial counsel's ineffectiveness). However, we concur with the trial judge that the defense should have provided more prompt notice to opposing counsel of Professor Guggenheim's anticipated testimony. His opinions should have been supplied, to the extent feasible under the tight time constraints of the remand proceeding, to opposing counsel in a written report. Cf. R. 3:13-3(d)(5) (mandating criminal discovery of anticipated defense witnesses); R. 4:17-4(e) (prescribing disclosure, albeit in response to interrogatories, of a civil expert's "entire report or reports," including "a complete statement of that person's opinions and the basis therefore" and the "facts and data considered in forming the opinions"); R. 4:23-5(b) (authorizing civil judges to exclude testimony from an expert whose report was not furnished upon an adversary's request); R. 5:5-1 (providing for rights of discovery in civil family actions); R. 5:12-3 (authorizing discovery by any party in DYFS matters, apart from the reports of experts and other documents relied upon by the Division, "for good cause shown").

That being said, we are satisfied that even if Professor Guggenheim had been permitted to opine at the hearing about trial counsel's insufficient legal advocacy, those criticisms could not suffice to alter the ultimate outcome here, unless they were coupled with expert testimony from one or more mental health professionals who could gainsay the adverse findings of the Division's expert psychologists, Dr. Kanen and Dr. Nelson. In the absence of such competing mental health opinions favorable to defendant, we have serious doubts that the four prongs of the statutory test for termination would have been successfully resisted. Professor Guggenheim, a legal expert, was not the sort of expert contemplated in B.R. that would provide "an evidentiary proffer" establishing why the guardianship outcome would have differed. 192 N.J. at 311. The Division's proofs of Alan's best interests are simply too powerful, and the efforts by defendant to safeguard and develop a healthy relationship with his son too negligible, to lead one to conclude that more strenuous advocacy by A.C.'s trial counsel would have made a difference.

Lastly, we briefly consider A.C.'s contention that the trial court should have granted his extemporaneous request to represent himself at the guardianship trial. Although it would have been preferable for the trial judge to have explored this issue more fully with defendant and have alerted defendant to the pitfalls of self-representation, see State v. Kardower, 229 N.J. Super. 566, 577-78 (App. Div. 1989), see also State v. Crisafi, 128 N.J 479, 518 (1992), we are satisfied that the trial court's denial of the application did not affect the ultimate outcome of the proceeding. Even if defendant had reconsidered his position and had allowed his counsel of record to cross-examine the Division's witnesses and present affirmative proofs, including possibly A.C.'s own testimony, we do not perceive that more active participation by defense counsel at the trial would have changed the outcome. Alternatively, we do not conceive that defendant would have fared any better at that if he had represented himself.

Affirmed.

 

Because the child has the same two initials as defendant, A.C., we shall refer to him by the fictitious name "Alan." All references to "A.C." shall solely refer to defendant.

We were advised in the post-remand telephonic argument that the biological mother, S.P., recently died.

We are unable to verify with precision the dates of defendant's incarceration and the exact nature of his criminal dispositions, as no judgments of conviction were supplied to us in the record. We have gleaned the criminal history presented in this opinion indirectly from the briefs, pleadings and medical reports in the record.

The ensuing paternity tests confirmed that defendant is, in fact, Alan's biological father and is not the father of T.P.

The record contains no indication that A.C. took advantage of this opportunity.

It was subsequently represented to us in the post-remand oral argument that A.C. was absent from the remand hearing allegedly because of a death in his family. Although that explanation is not documented, we shall presume it is truthful for purposes of our analysis.

Upon further reflection, counsel recalled that, at an unspecified pretrial hearing, he "may have said to [A.C.], on the record, are you getting visits, and he said no. [S]o I made a motion for it."

The Law Guardian advised us that she did not receive any advance notice of the expert.

The creation of the transcript, and, consequently, the filing of supplemental appellate briefs, was delayed due to apparent miscommunications between the transcriber and the public defender's office.

As a separate procedural item, we do agree with defendant that the trial judge on remand should not have curtailed questioning of trial counsel in certain areas relating to the history of his representation of A.C. Even so, our independent review leads us to conclude that this curtailment was not consequential.

(continued)

(continued)

39

A-2759-07T4

RECORD IMPOUNDED

June 25, 2009