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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5475-07T45475-07T4

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

R.B., JR.

Defendant-Appellant.

________________________________

IN THE MATTER OF THE GUARDI AN SHIP OF R.J.B. and L.M.B., MINORS.

________________________________

 

Submitted: May 20, 2009 - Decided:

Before Judges C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-34-07.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Catherine F. Reid, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assis tant Attorney General, of counsel; Louis Al len, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attor ney for minors R.J.B. & L.M.B. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant R.B., Jr., appeals from the termination of his parental rights to his two children, R.J.B., born April 1, 2002, and L.M.B., born December 31, 2005. Because the trial judge deprived defendant of his right to counsel of his choice, the judgment terminating defendant's parental rights to his children is reversed and the matter is remanded for a new trial on all issues.

I.

The records of plaintiff Division of Youth and Family Ser vices (the Division) establish that defendant and E.B. (the mother), both of whom have long-standing criminal histories, were married in August 2001. Their first child, R.J.B., was born on April 1, 2002, and their child, L.M.B., was born on December 31, 2005. The Division first became involved with the family in May 2004 after an Ocean County judge hearing domestic violence cross-complaints entered an order barring defendant from visita tion with the first child. The Division determined that abuse or neglect by the mother was not substantiated.

The second referral occurred on July 17, 2004, stemming from another incident of domestic violence in which the mother allegedly stabbed defendant and defendant threw her against a wall, resulting in their arrests. The person making the refer ral asserted both parents had been on a two-day cocaine binge, leaving their first child alone in the apartment. The referent also alleged that both parents had restraining orders against each other and fought constantly in front of their child. The Division investigated and learned that neither party lived at the address where the incident occurred, which was the family's pre vious residence and to which they had both returned to retrieve their possessions when the dispute erupted. The mother was released on her own recognizance and defendant was released from jail on July 18, 2004. The Division did not substantiate abuse or neglect.

The third referral occurred on July 27, 2005, when the police arrived at defendant's home to serve him with a temporary restraining order secured by the mother. The mother was present in the home and "acting irrationally." Initially, she would not allow the police to enter the home, although she had asked for their assistance. Then, she told the police that defendant was living in a different town. The police informed the Division that the entire house was filthy; drug residue was in the back of a cabinet in the kitchen; the toilets were filled with urine and cigarette butts; the home had no food; and defendant's first child had no bed. The mother informed the police that the house was dirty because defendant had ransacked the house before he left. The Division determined that abuse or neglect had not been substantiated, although it left the case open for supervision.

During the investigation of the third referral, the mother told the Division that defendant was financially responsible for paying the bills, including her rent, as she was their first child's caretaker. Although the Division caseworker noted that defendant and the mother did not submit to a requested sub stance-abuse evaluation and urine screen, the mother stated she did not receive anything in the mail as there was a problem with "her delivery person."

Defendant and the mother reconciled and thereafter the mother gave birth to their second child. Both mother and baby tested positive for cocaine and opiates at the time of his birth, which generated another referral to the Division. This time, the Division filed a verified complaint on January 4, 2006, requesting custody of the minor children, naming defendant and the mother as the biological parents. The Family Part judge handling the abuse or neglect proceeding (the pretrial judge) granted the Division custody of the minor children in an order entered that same day based on "substance abuse concerns, domes tic vio lence concerns, [and because L.M.B. was] born drug exposed." On January 11, 2006, one child was placed with the maternal aunt and then the other child was placed with the same aunt the following day.

The pretrial judge conducted case-management conferences on February 8 and March 15, 2006. Prior to these conferences, defendant had been charged in a four-count indictment stemming from an incident on February 19, 2005, where he threatened and then assaulted one of the mother's former boyfriends with a T-ball bat. He was tried in March 2006, convicted on all four counts, and sentenced to prison for about ten years with a projected parole eligibility date of September 28, 2014, and a maximum release date of November 13, 2016. Defendant was repre sented in this criminal matter by private counsel. This private attorney ultimately began to represent defendant in 2007 in the custody and guardianship matter.

On April 26, 2006, the pretrial judge found that the mother had "abused or neglected her child[ren] in that she used illegal drugs, cocaine and opiates while pregnant causing harm to the child." He also entered a dispositional order, prohibiting defen dant from having contact with the children until he completed psychological and substance-abuse evaluations. The dis po sitional order also revised defendant's status from a defendant to "Interested Party," and noted that defendant did not want services from the Division. However, the Division had not sought a finding of abuse or neglect as to defendant, which the pretrial judge noted in another order entered the same day.

On November 16, 2006, the pretrial judge entered a perma nency order approving termination of the mother's parental rights, followed by relative adoption. Defendant at this point remained an interested party. The pretrial judge's order found that it would not be safe to return the children to defendant's home in the foreseeable future because "[defendant] is incarcer ated, [and the mother] has not completed substance abuse treatment or complete[d] other services."

On February 13, 2007, the Division filed a Guardianship Com plaint seeking to terminate the parental rights of both par ents. The same pretrial judge presided over the case-management conferences, with defendant at first appearing pro se. Defen dant's private attorney began to represent him commencing June 26, 2007, and continued to do so for almost a year.

II.

Immediately prior to the beginning of the guardianship trial on April 14, 2008, which had been transferred to another Family Part judge (the trial judge), defendant informed the court that his private attorney was no longer representing him due to a disagreement they had on the appeal from a criminal matter. Defendant indicated that he did not object to his sister-in-law adopting his children so long as he had visitation because he would be in prison for quite some time. The trial judge informed defendant that she could not order visitation where there was an adoption and stated that she would not accept a surrender of parental rights from him unless he conferred with counsel. Defendant then agreed to confer immediately with a public defender. Upon learning there was no public defender then available, the trial judge advised defendant that he would either have to act pro se or she would order a separate trial for him on another date. At first, defendant agreed to an iden tified surrender, which the trial judge accepted. However, defendant quickly changed his mind, asking for a public defender. The trial judge then ordered a separate trial and defendant completed the paperwork necessary for the appointment of a public defender. Although the record is not completely clear, defendant was most likely returned to the jail after he completed the necessary paperwork and was not present for testimony adduced that day at the mother's trial.

When the mother's trial resumed on April 16, defendant did not state his appearance for the record at the beginning of the proceeding. However, after Dr. William Coffey testified, the trial judge addressed defendant and informed him that his trial would be on May 13 and that the Public Defender's Office was processing his application. She also informed him that:

THE COURT: Apparently, your other attor ney did call on Monday [April 14] to indicate that he felt he was still repre senting you. I indicated that you told me that he was not representing you. And he's here someplace today but is in another court. So I can't hold up to that [sic]. But it doesn't matter because he can't rep resent you in this because we have a new case that says he can't represent you in both a criminal matter and in this matter.

. . . .

[DEFENDANT]: I'm sorry, you have a new case?

THE COURT: There's an Appellate Divi sion case which says that where a defendant has a case in the Civil Part, well, in this part, the Children's Courts Part and also one in the Criminal Division as you have, that the lawyer that represents you in that case cannot also represent you in the child abuse case.

[DEFENDANT]: Okay.

THE COURT: So under our court law he can't represent you even though he did in the past. So you will be . . . hearing from somebody. And . . . we'll send a writ out for you on the 13th of May. So we're sending you back.

Presumably, defendant was returned to the jail at that point.

The trial of the guardianship action against defendant was held on May 13, 2008. An attorney from the Office of Parental Representation appeared on behalf of defendant. Defendant then addressed the trial judge and told her that he would like to have his private attorney represent him, advising her that he was still his attorney. The trial judge replied that she had:

a recent decision from our Appellate Divi sion which specifically says that an attor ney who is representing you in a criminal matter, or has represented you in a criminal matter, is not permitted to be in the court room with regard to this case. There are two separate cases.

This is a closed courtroom. The files are files that are not open to other people, and, consequently, not open to an attorney that has been representing you in a criminal matter. And, therefore, he's not allowed to be in this courtroom.

The trial judge did not cite the decision upon which she relied for this proposition.

Defendant objected to this ruling, stating that his private attorney had represented him all along; defendant then refused representation by the public defender. The public defender agreed with the trial judge's ruling and stated that he was pre pared to go forward. The judge replied that, although defendant wished to have his private attorney represent him, "the law is the law, and we all have to follow it." If he wished to appear pro se, the judge would require the public defender to remain in the courtroom to provide whatever assistance defendant sought. Defendant then asked to speak to his father and his private attorney, both of whom were outside the courtroom, but the trial judge would not permit him to do so. Defendant challenged the legal ruling, stating that he had researched the issue, found no such case, and asked the judge to show him the case law. She promised to do so before the end of the hearing.

The Division called its psychological expert, Dr. Alan J. Lee, as its first witness. Defendant immediately said that he was "in no position to represent myself" and again asked to have his private attorney represent him. The Law Guardian protested that "this is a stall tactic" and the judge replied, "Pay no attention, please. Okay. We're moving forward. Go ahead."

Dr. Lee then took the stand and testified to his qualifica tions, to which defendant pro se objected on the ground that Dr. Lee's examination of him was incomplete. The trial judge over ruled his objection and defendant once again protested the judge's ruling that he could not be represented by his private attorney, which the judge also overruled. Dr. Lee then testi fied to the findings in his psychological evaluation, to which defendant again objected several times before asking to have the public defender assist him. At that point, the public defender said that he had a copy of the case to which the judge was referring. The record does not suggest that the trial judge looked at the decision to confirm that it was the one to which she had earlier referred but, instead, had the public defender give it to defendant. After defendant was given an opportunity to read the decision, still not identified for the record, he agreed to allow the public defender represent him.

Dr. Lee testified that he had conducted bonding evaluations in October 2007 of the minor children with their caregivers, the maternal aunt and her husband. Before getting very far, defen dant himself made an objection to his testimony and the public defender then began to argue with defendant, telling him that he was the attorney and made the decisions respecting objections, not defendant who did not have a law degree. There were few subsequent objections to Dr. Lee's testimony.

With regard to the first child, Dr. Lee testified that he had developed a favorable relationship with significant psycho logical bonds to both caregivers. The caregivers both expressed "their desire and willingness to adopt [the first child] if he is legally free." Dr. Lee stated, "given separate and collater ally indicated concerns about the biological parents' reported inability to care for [him], his ongoing permanency planning and residence with [the maternal aunt] is very much supported."

Dr. Lee likewise concluded that the second child had a positive bond with the maternal aunt and uncle, noting he had lived almost his entire life with them. He concluded that this child had developed a significant attachment with the maternal aunt and terminating the relationship "would have a significant likelihood of resulting in severe, enduring, irreparable psycho logical harm," an opinion that he expressed with respect to the first child as well.

On January 2, 2008, Dr. Lee conducted a psychological evaluation of defendant at the South Woods State Prison in Bridgeton. Dr. Lee found that defendant's overall cognitive and intellectual functioning were adequate and "free of severe . . . overall deficits or disease." Defendant presented as "generally far less mature and much more primitive than expected for his chronological age, including a striking sense of self-absorption and egocentricity. . . . He can be rather rageful and reactive when he believes others do not focus on him or support his causes."

Dr. Lee's DSM-IV diagnostic impressions on Axis I were impulse-control disorder not otherwise specified, history of attention-deficit/hyperactivity disorder, and history of sub stance abuse. On Axis II, he diagnosed personality disorder not otherwise specified with narcissistic and antisocial traits. Although Dr. Lee noted defendant wanted to be reunited with his children and reconcile with their mother, he recommended "[o]ther permanency planning besides reunification of either of these two children with their birth father."

On cross-examination by the public defender, Dr. Lee asserted that he spent two or three hours conducting the inter view of defendant. Dr. Lee also admitted that he did not con sider the Parenting Stress Index, the Personality Assessment, and the Child Abuse Potential Inventory questionnaires because he left them with defendant at the prison on January 2, 2008, and had not received them by the time he authored his report on January 30, 2008. Dr. Lee admitted that it was not his usual procedure to have the questionnaires completed outside the confines of an evaluation and then mailed to him.

Division caseworker Courtney Vainojoe testified to her role in handling defendant's case, which began in February or March 2007. Vainojoe testified from Division records that defendant failed to show up for two substance-abuse evaluations that Pre ferred Behavioral Health had scheduled for September 8 and Sep tember 29, 2005. She testified that defendant failed to show up for substance-abuse evaluations on February 16 and March 3, 2006. Preferred Behavioral Health rescheduled again for March 17, 2006; however, the Division notified it on March 16 that defendant had been evicted, "his new address was unknown, and his phone had been disconnected." The evaluation was resched uled for March 22, 2006, although defendant was in jail at that point, which the Division did not learn until March 31, 2006. She further tes tified it was difficult to offer defendant services due to his incarcera tion, although the Division did eventually arrange for Dr. Lee to conduct his psychological evaluation. On cross-examination by the public defender, Vainojoe admitted that there had never been a finding in the custody proceedings that defendant abused or neglected his children.

After the Division's testimony was completed, the trial judge excluded Dr. Coffey's report from evidence and defendant elected not to testify, although the reasons for that decision were not placed on the record. The public defender's summation was brief, arguing that the Division had not provided reasonable services and that defendant had not waived them. He argued that no weight should be given to Dr. Lee's testimony because his report was based on incomplete information. He also argued that great weight should be given to the fact that the Division did not pursue "a Title 30 finding against" defendant until May 13, 2008, and that defendant's incarceration did not require the termination of his parental rights. He did not specifically address the other factors for termination of parental rights under N.J.S.A. 30:4C-15.1(a).

III.

After the summations were completed, the trial judge placed her findings of fact and conclusions of law on the record and terminated defendant's parental rights. She found that defen dant was incarcerated, having been sentenced on August 4, 2006, to a ten-year term of imprisonment for second-degree aggravated assault. The trial judge concluded that defendant's incarcera tion had a substantial effect on the perma nency and stability of the children's lives. She noted that the "effect of imprison ment and the inability to carry out many regular ordinary paren tal duties can be deleterious to the emo tional and psychological condition of the children" and con cluded that defendant's incar ceration constituted abandonment under In the Matter of Adoption of Children by A.L.S., 134 N.J. 127, 143 (1993). The trial judge found that the circum stances surrounding the incarcera tion, as reported in a newspa per article dated April 1, 2006, in the Ocean County Observer established that defendant's attack on the victim was vicious, causing him to be permanently disabled. She also noted that a criminal defendant is not sentenced to ten years in prison for something that is insignificant and that the sentencing judge obviously felt the assault was significant.

The trial judge also placed reliance upon Dr. Lee's testi mony and report because the report demonstrated that he spent two to three hours with defendant and that the reason the report was not complete was because defendant was asked to submit the questionnaires to him, but Dr. Lee never received them. She reviewed Dr. Lee's findings that defendant was detained in March 2006 and remained incarcerated from that date. She found that at the time of trial defendant had not yet succeeded on his appeal from the criminal conviction and that it was unrealistic of defendant to expect that he could resume independent care of his children when he was released. The trial judge also found that, even if defendant was not incarcerated, "there are sig nificant concerns [about his ability to be an independent care giver] that stem from his maladaptive personality and character traits that adversely impact upon his ability to consistently, appropriately and responsibly attend to the needs of two minor children, both of [whom] he has not seen essentially since December 31, 2006."

As to the bonding evaluations, the trial judge found that R.J.B. and L.M.B. had "developed a positive and favorable rela tionship and significant psychological bond and attachment to the [aunt]." She found that terminating that "relationship would have a likelihood of resulting in severe, enduring and irrepara ble psychological harm to the minor child[ren]." Further, the aunt "had expressed [her] desire and willingness to adopt the child[ren] if [they are] legally free."

The trial judge found "by clear and convincing evidence that the physical and mental health of these children is jeop ardized by the relationship with their father." In order to protect them "from serious physical and emotional injury," she determined to sever this parent-child relationship, action required in their best interest. Discussing the best-interest standard, she observed that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence, and that termination of the father's parental rights was, therefore, justified. In doing so, she made no fact findings to support the third prong, N.J.S.A. 30:4C-15.1(a)(3).

The trial judge entered a judgment reflecting her decision that same day. Before doing so, however, she found that the pub lic defender was "one of the most competent attorneys who appear[] before me. . . . If anybody knows how to defend in a case of this kind, he certainly does, and he did." She also found that the public defender represented defendant "right from the beginning . . . and more than adequately." This appeal fol lowed.

IV.

Defendant asserts that the trial judge abused her discre tion in the conduct of the trial by barring defendant's private attorney from the courtroom and putting him in a position where he had to accept representation from a public defender about whose competency defendant had expressed concern; and by hearing evi dence relating to defendant in his absence while he was not rep resented by counsel. He contends that the trial judge denied his fundamental right to effective assistance of counsel. Finally, he argues that the trial judge misapplied the appropri ate legal standards for termination of parental rights and asserts that there was not sufficient evidence to satisfy the four prongs of N.J.S.A. 30:4C-15.1(a). This is so, he contends, because (1) there was no evidence that he ever harmed his chil dren; (2) he was willing and able to parent his children; (3) the Division made little, if any, effort to reunite him with his children and did not consider kinship legal guardianship; and (4) the record did not contain substantial, credible evidence that termination of his parental rights would not do more harm than good.

Our review of a judgment terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (citation omitted). We uphold the trial judge's fact-findings "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)) (internal quotations omitted). Because Family Part judges have special expertise, we generally defer to their credibility determinations. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Nevertheless, if a party alleges error in the evaluation of the facts and their implications, "the traditional scope of review is expanded." In re J.T., supra, 269 N.J. Super. at 188-89 (citation omitted). In such a case, if "the trial court's findings went so wide of the mark that a mistake must have been made," we do not accord deference to those findings. M.M., supra, 189 N.J. at 279 (internal quotations omitted). Otherwise, the trial court's findings are entitled to deference on appeal. Ibid.

Parents have a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, parental rights are not absolute and the consti tutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of chil dren." Id. at 347. The Division is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994) (citing N.J.S.A. 30:4C-15.1).

"In particular, 'paren tal fitness is the key to determining the best interests of the child in parental rights termination cases.'" In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002) (quoting In re Guardianship of B.L.A., 332 N.J. Super. 392, 402 (Ch. Div. 2000)).

The four factors codified in N.J.S.A. 30:4C-15.1(a) are not independent of each other; rather, they are "interrelated and overlapping [and] designed to identify and assess what may be necessary to promote and protect the best interests of the child." State Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007); M.M., supra, 189 N.J. at 280; K.H.O., supra, 161 N.J. at 348.

V.

Before addressing the sufficiency of the evidence, we first address the issues surrounding the trial judge's conclusion that defendant's private attorney was not permitted to represent him in this matter while he was, or had been, representing defendant in a criminal matter. Because of the State's power to deprive defen dants of their constitutional rights to parent their chil dren, judges must exercise "scrupulous adherence to procedural safe guards" in handling such cases. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002).

The right to counsel in a parental-rights termination proceeding is guaranteed by the state constitution, Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006) (citation omitted), and by N.J.S.A. 30:4C-15.4(a), N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007). "An essential element of the constitutional right to the assis tance of counsel is the right of a defendant to secure counsel of his choice." State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.) (citations omitted), certif. denied, 101 N.J. 266 (1985). Nonetheless, a defendant must act with "reasonable diligence" in exercising his right to counsel. State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.) (citation omit ted), certif. denied, 156 N.J. 381 (1998). If the defendant fails to do so, "the trial court has the power to 'do what is reasonably necessary to meet the situation.'" Ibid. (citation omitted).

We have observed:

The efficient administration of justice without unreasonable delay has great force and effect. The public has a strong inter est in the prompt and effective operation of its judicial institutions. A trial court therefore must have the power to tightly control its own calendar so that the assign ment of cases cannot be manipulated by the defense counsel or the defendant. . . . The procedure that may generally be employed where defendant seeks to change counsel is to allow a reasonable adjournment to permit the defendant to retain counsel of his own choice. The granting of a continuance nec essarily rests within the sound discretion of the trial court, and the exercise of that discretion will not constitute reversible error in the absence of a showing of an abuse of discretion causing defendant a manifest wrong or injury.

[Furguson, supra, 198 N.J. Super. at 401-02 (citations omitted).]

Although a trial judge "is necessarily allowed a wide lati tude in the conduct of a trial," Roberts Elec., Inc. v. Founds. & Excavations, Inc., 5 N.J. 426, 432 (1950), the decision to deny a defendant his counsel of choice is reviewed for abuse of discretion, Furguson, supra, 198 N.J. Super. at 402; McLaughlin, supra, 310 N.J. Super. at 259.

While the abuse-of-discretion standard "defies a precise definition," our Supreme Court has commented that "it arises when a decision is 'made without a rational explanation, inex plicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Imm'n & Nat'n Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)); see also Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) ("[A]buse of discretion is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." (citation omitted)). Thus, we must decide whether the trial judge's decision to bar defendant's private attorney from representing him (1) was made without a rational explanation, rested on an impermissible basis, or was based on irrelevant or inappropriate factors; and (2) caused defendant a manifest wrong or injury. Both prongs are satisfied here, requiring reversal.

The trial judge's decision to bar defendant's private attor ney was premised on her understanding that a recent Appel late Division case held that the same attorney cannot represent a client in both a Division matter and a criminal matter. There is no indication that the trial judge's decision was grounded on timing concerns or the efficient administration of the court. She also did not find that defendant's repeated requests to be represented by his private attorney were merely a stalling tactic, as suggested by the Law Guardian.

The Division concedes the "new Appellate Division" case upon which the judge relied was most likely a Chancery Division opinion, suggesting New Jersey Division of Youth & Fam ily Ser vices v. J.C., 399 N.J. Super. 444 (Ch. Div. 2006). The Family Part judge there considered the issue of "whether an attorney retained by defendant may represent defendant in both the pro tective services action initiated by DYFS against defen dant on behalf of the children and in the criminal action initi ated against her by the State." Id. at 446 (footnote omitted). The criminal charges arose out of the same conduct on which the Division's charge of abuse or neglect was based. Ibid. The Family Part judge held, as a matter of public policy, that "when there are parallel DYFS and criminal proceedings . . . , there is a valid reason to enjoin the selected attorney from repre senting defendant in both matters." Ibid. However, in a foot note, the judge cautioned, "The reader should note that this opinion was written before [Division of Youth and Family Ser vices] v. V.J.[,] 386 N.J. Super. 71 (Ch. Div. 2004) was decided, though approved for publication after [V.J.] was pub lished. The court in [V.J.] reached a different conclusion on the issue of dual representation." J.C., supra, 399 N.J. Super. at 446 n.1.

If the trial judge relied on J.C., that opinion clearly was not binding on her. Brundage v. Estate of Carambio, 195 N.J. 575, 593 (2008) ("the decision of one trial court is not binding on another" (citations omitted)). Second, she also misunder stood the holding in J.C., which was expressly limited to Divi sion and criminal proceedings predicated on the same act or acts of abuse. 399 N.J. Super. at 446. Here, defendant's private attorney was representing him in a completely unrelated criminal matter. Finally, even if the matters were related, defendant's private attorney had represented him in the Division proceedings for well over a year and had full discovery from the Division prior to trial. Therefore, the damage that J.C. sought to prevent would have already occurred.

Although the Division argues that defendant's private atto rney "did not make any formal applications to substitute into the case," he did not need to do so because he was the attorney of record and had not executed a substitution of attorney in favor of defendant pro se. In any event, the trial judge's decision to bar defendant's private attorney from representing him was premised solely on her misinterpretation of case law and no other explanation was offered for the record.

The trial judge stated on the record of April 16, 2008, that she heard from defendant's private attorney on April 14, 2008 the first trial day for the proceedings against defendant and the mother and was told that he was willing to represent defendant and thought he was still doing so. Defendant thereaf ter represented that his private attorney was ready to proceed with the trial on May 13, 2008, so obviously no delay would have resulted from allowing the private representation because defen dant's private attorney had full discovery in the case. We are satisfied that this fundamental misinterpretation and misappli cation of case law cannot constitute a rational decision with a permissible basis. Flagg, supra, 171 N.J. at 571. Depriving defendant of an attorney who had represented him for quite some time in this case and substituting a public defender who never met with defendant constitutes an abuse of discretion capable of causing defendant manifest wrong or injury. Furguson, supra, 198 N.J. Super. at 402. As a result, we are compelled to reverse and remand for a new trial.

VI.

On remand, defendant's private attorney may no longer be willing or able to represent him. Therefore, we next consider defendant's claim that the public defender provided ineffective assistance of counsel. Defendant contends that the "conduct of the assistant dep uty public defender assigned to represent [him] at trial fell significantly below the level of professionally acceptable behavior and prejudiced [his] defense to such an extent that a remand is necessary to ensure a fair adjudication of the mat ter," relying on B.R., supra, 192 N.J. 301. There, the Court deter mined that the right to counsel in guardianship proceedings had both a consti tutional base under N.J. Const. art. I, 1 and a statutory base under N.J.S.A. 30:4C-15.4(a). B.R., supra, 192 N.J. at 305-06. "Either way, the performance of that counsel must be effective." Id. at 306. To redress ineffective assis tance of counsel, the Court adopted the two-part test first announced in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), for establishing ineffective assistance of counsel in a termination-of-parental-rights setting. B.R., supra, 192 N.J. at 307-09.

Under Strickland, "(1) counsel's performance must be objec tively defi cient i.e., it must fall outside the broad range of profession ally acceptable performance; and (2) counsel's defi cient per formance must prejudice the defense i.e., there must be a 'reasonable probability that but for counsel's unprofes sional errors, the result of the proceeding would have been dif fer ent.'" B.R., supra, 192 N.J. at 307 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). This standard is "highly deferential," and "a court must indulge a strong pre sumption that counsel's conduct falls within the wide range of reasonable professional assistance." Ibid. (internal quotations & citation omitted).

The B.R. Court then addressed the knotty issue of "the practical application of a post-trial remedy, given the con straints that apply in a parental termination case because of the child's need for permanency." Id. at 309. The Court con cluded that the best modality for presentation of such a claim is on direct appeal from the judgment terminating parental rights. Id. at 311.

As a practical matter, the appeal must be filed by an attorney other than trial counsel. Further, appellate counsel 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 lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the fail ure to produce expert or lay witnesses is claimed, appellant will be required to sup ply certifications from such witnesses regarding the substance of the omitted evi dence along with arguments regarding its relevance.

[Ibid.]

If the appellate court accepts the defendant's representa tions as true, but con cludes that the outcome would not have been different, it may decide the issue. Ibid. Where a genuine issue of fact exists that requires resolution, we may remand the case to the trial judge for an accelerated hearing and decision, "to be completed in no more than fourteen days," with the par ties filing simulta neous supplemental appellate briefs within fourteen days. Ibid. Thereafter, the appellate court is to "render an opinion on all issues, includ ing the effectiveness of counsel, as expeditiously as possible." Ibid.

Defendant complied with the procedure established by B.R. and submitted three certifications on appeal. Donna Tymkow, who has been employed by the New Jersey Department of Corrections for nineteen years, certified that she is assigned to South Woods State Prison and is responsible for scheduling visits of attorneys and their representatives, including psychologists, with South Woods inmates. Although she does not keep time records of the length of visits with inmates, in her experience doctor visits "generally last well under an hour" and she could not recall such a visit ever lasting two hours or more. She also expressed her familiarity with the video conference pro gram, which links the prison with courts and Public Defender offices throughout the state. This program permits attorneys to meet with their clients and has been in place since 1998.

Defendant certified that during the latter half of November 2008 he was notified that his appeal from the judgment terminat ing his parental rights had been assigned to present counsel. They conferred twice by the video conference program, each con ference lasting an hour. Defendant certified that Dr. Lee met with him for less than one hour in January 2008 and then left several tests Dr. Lee said he should complete. Defendant placed them in his cell, but later discovered that they were missing, preventing him from completing them for Dr. Lee's evaluation.

Defendant also certified that he wanted the public defender to challenge Dr. Lee's report on the brevity of the interview and the absence of the tests. He also wanted the public defender to demonstrate that the Division did not contact him about attending substance abuse evaluations. Further, he asserted that his father could have testified to the close rela tionship defendant had with his first child and that he could have provided the public defender with the names of other wit nesses who could testify to his relationship with and commitment to his first child.

On May 1, 2009, defendant filed a second certification in which he certified that on May 13, 2008, his private attorney was sitting with him and they were both prepared for trial. They had five witnesses waiting in the hallway who were prepared to testify on his behalf and four more who were waiting to come to the courthouse, if needed, all of whom had first-hand knowledge of the manner in which he parented his first child.

Defendant further certified that on May 13, 2008, he did not want the public defender to represent him because the public defender never contacted him prior to the start of trial, and so his private attorney was there and ready to proceed. While he was sitting with his private attorney, the public defender approached defendant and introduced himself, saying that the trial would be starting shortly. After he left, defendant's private attorney told defendant that if he wished to have him represent him, defendant had to tell the judge that he fired the public defender. Shortly after, the trial judge instructed defendant's private attorney to leave the courtroom and asked the sheriff's officers to escort him out. The judge then told defendant he had to proceed pro se or with the public defender. Defendant had no opportunity to confer with the public defender about his case.

Finally, defendant certified that after the Division rested, the public defender asked if he wanted to testify. He told the public defender that he planned to appeal the judge's refusal to permit his private attorney to represent him. The public defender then said that there was then no point in defen dant taking the stand to testify and defendant assumed that the testimony of his witnesses was not required.

Defendant argues that the public defender's fail ure to con tact him or otherwise discuss the case between April 15 and May 13, 2006, when the guardian ship trial began falls below objec tive standards of reasonable ness, citing State v. Gaither, 396 N.J. Super. 508, 514 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008), and preju diced his rights. He points out that the public defender had ready access to him through the video con ference program linking Public Defender offices throughout the state with state prisons.

Additionally, defendant points to the public defender's refusal to listen to pertinent information defendant was trying to give him, instead arguing with defendant on the record. Defendant asserts that, had the public defender consulted with him prior to trial, he would have informed him that Dr. Lee's evaluation took less than one hour, not two or three, and the attorney could have gathered evidence from defendant and Tymkow to impeach Dr. Lee on this issue.

Defendant also asserts he would have told the public defender that he never received requests to participate in sub stance-abuse evaluations despite the fact that the Division knew where he worked and could have reached him there. Indeed, he contends that even a cursory review of the Division's files would have alerted the public defender to the fact that there was only one letter to him seeking to schedule such an evalua tion and it was sent to the wrong address. Had the public defender been aware of this evidence, defendant argues he could have cross-examined Vainojoe more effectively and pointed out to the judge that only one evaluation request had ever been made. The public defender would also have learned that there was never an attempt to reunite R.J.B. with defendant before he was arrested; without this information, the public defender was not in a position to challenge the strength of the Division's case. All of this, defendant argues, was mitigating evidence and he asserts that the failure to investigate the case constituted ineffective assistance of counsel, citing State v. Savage, 120 N.J. 594, 623-25 (1990).

Finally, defendant contends that competent challenges to Dr. Lee's opinions respecting his ability to parent were criti cal because there was little else to support termination of his parental rights other than the fact of his incarceration, which he urges is not per se sufficient. In addition, he argues that the Division's failure to attempt reunification prior to his incarceration might have affected the outcome in this case where there was no evidence that he harmed either child, especially where the Division never referred him for substance-abuse evaluations.

Preliminarily, the trial judge's determination respecting the competency of the public defender, which she made after she delivered her opinion, is not entitled to any weight or consid eration. The issue had not been raised by defendant at that time and he had not had an opportunity to present his concerns to the court. Ordinarily, a judge should not determine an issue where a party has not been given notice and opportunity to respond. H.E.S. v. J.C.S., 175 N.J. 309, 321-22 (2003) ("At minimum, due process requires that a party in a judicial hearing receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" (citation omitted)). As a result, we will disregard the judge's opinion as to counsel's competency.

The Division con cedes that the public defender assigned to the case did not speak with defendant prior to May 13, 2008. As we explained in Gaither, supra, 396 N.J. Super. at 514, a "coun sel's failure to communicate with his client falls below objec tive standards of reasonableness" under prong one of the Strick land test. Additionally, the public defender's undisputed fail ure to conduct even a rudimentary investigation in the month prior to trial also constitutes ineffective assistance of coun sel. Savage, supra, 120 N.J. at 623-25 (counsel's failure to investigate possible mitigating evidence amounts to ineffective assistance of counsel).

We are satisfied that the ineffective assistance of the pub lic defender, which we have discussed in this opinion, leads inexorably to the conclusion that there is a "reasonable prob ability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As a result, a new trial is required. Defendant shall secure representation by a private attorney or another public defender within two weeks of the date this opinion is issued. If defen dant's attorney is new to the case, counsel shall have six weeks after being retained to complete an investigation and prepare for trial; the new trial shall be completed and the decision ren dered within four weeks thereafter. If defendant's prior pri vate attorney is available to represent defendant, the new trial shall be completed and the decision rendered within six weeks of the date this opinion is issued.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we con clude that the remaining issues presented by defendant are either moot or with out suffi cient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(A), (E). Those issues are (1) the bifurcation of the action against defendant and the mother and the presentation of evidence relating to defendant in the trial of the action against the mother; (2) the trial judge's claimed lack of civility to defendant; (3) the trial judge's consideration of evidence that was not in the record from the trial of the action against defendant; (4) the trial judge's conclusion that kinship legal guardianship was not an option, which was stated before any evidence on the issue was presented; and (5) the trial judge's failure to consider the evidence before placing her decision on the record immediately after the summations were completed.

 
Reversed and remanded for further proceedings consistent with this opinion.

The record does not contain the judgment of conviction and sentence, making it impossible to ascertain the exact length of imprisonment imposed, although we infer from the earliest release date the term of imprisonment was subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.

It is not clear whether this attorney represented him at the criminal trial or just on the appeal from his conviction.

The maternal uncle died subsequent to this evaluation.

There is no record evidence to support this finding of permanent disability.

We have not been able to find any such case and none has been cited by the Division or the Law Guardian.

The Division urges that the reasoning in J.C. still applies because counsel in a guardianship proceeding might learn something sensitive that could be valuable in an unrelated criminal action. We decline to adopt or expand J.C. on the record before us and express no opinion as to its merits.

The public defender did not file a certification in response to the certifications submitted by defendant and thus no disputed issues of fact exist.

(continued)

(continued)

36

A-5475-07T4

RECORD IMPOUNDED

June 26, 2009