NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.C.G. and C.R.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3515-09T2

A-3516-09T2

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C.G. and C.R.S.,

Defendants-Appellants.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

K.L.S. and D.L.S.,

Minors.

_____________________________________

July 12, 2011

Submitted March 21, 2011 - Decided

Before Judges Grall and C.L. Miniman.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Gloucester County, FG-08-13-09.

Yvonne Smith Segars, Public Defender, attorney for appellant D.C.G. (Eric R.

Foley, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender,

attorney for appellant C.R.S. (Amy M.

Williams, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Hurley, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors K.L.S. and D.L.S. (Todd Wilson, Designated Counsel, on the brief).

PER CURIAM

Defendants D.C.G. (Father) and C.R.S. (Mother) appeal from a judgment terminating their respective parental rights to K.L.S. and D.L.S. We have consolidated their separate appeals. Defendants challenge the adequacy of the evidence presented by the Division of Youth and Family Services (DYFS) to prove that termination of parental rights is in the best interests of their children. See N.J.S.A. 30:4C-15.1a. In addition, they claim denial of their right to representation by court-appointed counsel at proceedings involving approval of permanency plans prior and subsequent to the filing of the guardianship complaint. See N.J.S.A. 30:4C-11.3, -11.4, -15, -61.2.1 Father also contends that the assistance he received after counsel was appointed, both prior to and at trial, was ineffective. We reject the claims based on denial and ineffective assistance of counsel, and we affirm the judgments of termination because the decision is supported by adequate credible evidence in the record.

Mother and Father have consistently left the care and nurturing of these children to others. Mother has four older children, all now emancipated, who were reared in similar fashion.

When K.L.S. was born in 1996, DYFS had custody of her half-brother and was providing Mother services with the goal of returning him to her care. The boy was returned to Mother's care in June 1997, but by December of that year, DYFS had assumed responsibility for him, K.L.S. and another of her half-brothers after finding K.L.S.'s brothers alone in a filthy home that had no heat or electricity. The boys did not know where their mother was or when she would return. In 1998, when D.L.S. was born, the DYFS litigation that followed the 1997 removal of K.L.S. and the boys was still pending, and the complaint was amended to include D.L.S. At that time, the four children were in DYFS' custody and placed with various relatives.

In March 1999, Mother, represented by counsel, consented to entry of an order in a non-dissolution case transferring custody of both K.L.S. and D.L.S. to A.F., who is Father's aunt. The order preserved Mother's right to visit and contact the children "upon notice to" A.F. The DYFS litigation was dismissed in May 1999.

Between March 1999 and July 2005, K.L.S. and D.L.S. remained in A.F.'s custody. But by July 2005, A.F. was seventy-six years old and no longer felt able to care for them. Consequently, DYFS removed the children from A.F.'s home to protect them against ongoing risk to their safety and health as authorized by N.J.S.A. 9:6-8.29 and N.J.S.A. 30:4C-12.

DYFS commenced this litigation involving K.L.S. and D.L.S. on July 8, 2005, two days after DYFS removed the children from A.F.'s home. In that complaint and order to show cause, DYFS alleged that Father and Mother failed to provide adequate shelter and support, their whereabouts were unknown and that A.F. was unable to provide necessary care. The judge determined that DYFS' removal of the children was appropriate for the reasons alleged and entered a temporary order placing the children in DYFS' care and custody. That order directed the parents and A.F. to appear on September 26, 2005.

Unknown to DYFS, Father was incarcerated on September 26, 2005 and, therefore, did not appear for the hearing. According to the parties, Mother appeared. Because a transcript of the proceeding could not be produced and Mother has not submitted a certification or affidavit indicating what occurred, it is not clear whether Mother asserted her willingness or ability to care for the children whose custody she had transferred to A.F. years earlier. It is clear, however, that A.F.'s adult daughter, C.O., was willing to assume responsibility for their care. The order entered on September 26 provides for the case to proceed under Title 30 as one for "custody and services." The order also authorizes DYFS to place the children with C.O. upon finding her to be a qualified caregiver. It did not require DYFS to provide services to either parent or to take steps to locate and serve Father. Consistent with the order, DYFS placed the children with C.O. prior to the next hearing.

Neither parent appeared for that hearing, which was held on November 7, 2005. At the hearing, the judge approved continued placement of the children with C.O.

A compliance review hearing was held on March 6, 2006. C.O. appeared, but neither parent did. At that point, the children had been with C.O. for six months. Although C.O. did not give sworn testimony, she told the judge that Father had been to her apartment and she had seen Mother "around." C.O. also said she told the parents to contact DYFS to set up visitation. DYFS reported that neither Mother nor Father had contacted it since July 26, 2005 and told the judge it planned to pursue permanent placement of the children with C.O. through the Kinship Legal Guardianship program, N.J.S.A. 30:4C-84 to -90 and N.J.S.A. 3B:12A-1 to -7. The March 6 order directs DYFS to prepare petitions for a kinship legal guardianship placement with C.O. and precludes visitation for the parents until further order of the court.

Father, who had been serving a term of imprisonment and was anticipating release to a halfway house in the near future, first appeared in this matter on August 7, 2006. It had been more than one year since the children were removed from the custody of his aunt, A.F., and seven years since A.F. had been awarded custody of his children. The subject of the August 7 hearing was entry of the first permanency order in this case. Father did not have an attorney, and there was no mention of his right to apply for appointed counsel. The judge asked Father if he understood and agreed with the plan to place the children with C.O., and he said yes. The judge did not otherwise address Father that day.

Mother did not appear for the hearing on the permanency order and was not represented. The caseworker reported, however, that she had spoken with Mother the night before and that Mother knew the children were with C.O.

At the conclusion of the August 7 hearing, the judge entered a permanency order incorporating a plan for C.O. to serve as the children's kinship legal guardian and noting, with reference to services provided in the earlier litigation, that DYFS had made reasonable efforts to reunify the family that included substance abuse treatment and counseling.

Before DYFS was able to file the petitions for kinship legal guardianship, it was compelled to revise its plan for the children. A change was necessary because C.O. had been evicted from her apartment, and the children were then living with C.O.'s brother, D.F. A hearing on DYFS' proposed revision was held on October 31, 2006. At the hearing, DYFS sought and obtained an order authorizing temporary placement with D.F. followed by a permanent placement, with D.F. serving as their kinship legal guardian.

Mother did not appear for the October 31 hearing. Father was again present but not represented. Father said he had no objection to placing the children with D.F. In addition, Father asked to visit with his children after his release from prison to a halfway house, and the order entered that day directs DYFS to arrange such visitation. During the hearing, the judge advised Father he would have a right to be represented by counsel after a kinship legal guardianship or guardianship complaint was filed.

Father also attended the next hearing, which was held on February 5, 2007. DYFS was ordered to arrange for Father to see the children bi-weekly at its office upon Father's release to the halfway house. At that hearing, the judge advised Father that the Public Defender's Office had recently expanded its representation program, and she asked if he wanted counsel appointed. Father said he did and completed an application. Father was represented by appointed counsel at the next hearing on July 2, 2007. The attorney indicated that he had not received all of the prior orders but had spoken to his client that day. Although the lawyer was then under the misimpression that the judge had made a finding of abuse and neglect, he voiced his client's interest in assuming responsibility for the children after his release from the halfway house.

Mother did not appear on July 2. The attorney for DYFS and a caseworker represented that Mother had contacted the agency several times for services but had not followed through and that she was sending letters and notes to the children through friends.

D.F. was also present on July 2, and he testified about his efforts to obtain approval to serve as a kinship legal guardian or adoptive parent. D.F. also expressed his preference for kinship legal guardianship, but said he would adopt if necessary to prevent adoption by a stranger.

The July 2 order directs DYFS to obtain psychological and substance abuse evaluations of Father and to provide counseling for the children, visitation for Father and visitation for Mother upon her request.

For the first time since her appearance on the return date of the order to show cause almost two years earlier, Mother appeared in court for a compliance review hearing on September 10, 2007. It had been about eight years since she had transferred custody of these children to A.F. pursuant to the consent order. Mother said she had a job and told the judge she wanted to be represented by appointed counsel. The judge asked Mother what she earned, and Mother said more than $300 but less than $350 per week. The judge told her she would not qualify for representation and did not suggest that Mother complete an application. Mother made no further inquiry.

The primary questions at the September 10 hearing were D.F.'s continued delay in obtaining the license needed to serve as a kinship legal guardian, his alleged reluctance to allow the children to participate in counseling and allegations that one of the children was not comfortable in his home. On these grounds, DYFS recommended a new plan for the children removal of the children from D.F.'s care, termination of parental rights and adoption by someone other than D.F. Mother did not disagree with DYFS' proposed removal. She expressed her dissatisfaction with the children being in D.F.'s care and related reasons that she said K.L.S. had given to her in a recent letter. The children's law guardian acknowledged that K.L.S. had said she was uncomfortable but not why, and also had said she wanted to stay with D.F.

After questioning D.F. and explaining what he needed to do to complete the necessary licensing process, the judge entered

a permanency order that authorized pursuit of termination and adoption by someone other than D.F. Nevertheless, the judge continued the children's placement with D.F. until another caregiver could be found. In addition, consistent with N.J.S.A. 30:4C-11.1c, the judge directed DYFS to provide services to reunify the children with one of their parents and consider alternatives to termination while pursing termination. She directed supervised visitation for both parents and investigation of the possibility of placement with a relative named by Mother at the hearing and another relative named by the children's law guardian.

During a hearing held on short notice on November 9, 2007, DYFS advised the court that D.F. did not meet the licensing requirements and asked the judge to authorize placement in a mentor home. Mother was not present, but Father was. Although the order indicates otherwise, Father's attorney was unable to appear. That attorney, however, had written to the court in advance of the hearing and outlined requests for services his client needed increased visitation and assistance with finding housing after he completed service of his sentence the following month. Father said he understood that his attorney could not attend; he did not object to proceeding without his lawyer. Father further indicated his agreement with the plan to remove the children from D.F.'s home, acknowledging problems with that placement and saying he did not oppose DYFS' plan for a mentor home pending his release from the halfway house.

The order entered on November 9, directs DYFS to place the children in an "approved mentor home." As the judge correctly noted, placement in a mentor home was contemplated by the prior order. That order was entered when Father's attorney was present.

Father appeared and was represented by counsel at a compliance review hearing on December 3, 2007. Mother did not appear. By that time, Father had made significant progress in the halfway house. With assistance arranged through DYFS, he had completed a "FAM-Care" program and was participating in counseling and visiting the children regularly. DYFS reported that the children enjoyed the positive visits with Father. For that reason, DYFS was considering placing the children with Father once he was in a position to care for them, and Father was scheduled for release at the expiration of his sentence on December 27, 2007. Accordingly, DYFS wanted to move toward returning the children to his care concurrently with its efforts to terminate parental rights and to permit adoption. In short, despite Father's late entry into the process and initial appearances without counsel, he was on track to be in a position to care for his children in the near future.

Neither Father nor Mother appeared for the next compliance review hearing on April 7, 2008. That day Father was represented by an attorney substituting for his lawyer. Since his release from the halfway house, Father had become less compliant with DYFS' services. He had missed three of eight visits with the children and two consecutive counseling sessions, which had resulted in his dismissal from the counseling program but not the visitation program. Although Mother had not appeared in court since September 2007, she had submitted to psychological and substance abuse evaluations arranged by DYFS and individual psychotherapy the evaluator had recommended.

The April 7, 2008 order directs DYFS to arrange therapy for Mother. The order does not indicate any change in the services DYFS was directed to provide for Father.

At a hearing on June 10, 2008, DYFS asked the court to approve a plan for termination of parental rights. The following information was conveyed to the judge by way of representations rather than sworn testimony. Mother and Father had been having supervised visits with the children, but there were problems. One of the children was refusing to visit with Mother, and Mother had not participated in any weekly visit for one month. In addition, Mother did not want to attend the counseling program DYFS made available to her and expressed a preference for a different program. Mother did not have housing.

Father was not meeting expectations either. Like Mother, he had not yet secured a home, but he was on a list for housing available through HUD. He had not participated in counseling or visitation since March, and he had still not undergone the substance abuse evaluation ordered long before. Father's attorney was present. The lawyer did not oppose the filing of a termination complaint, but he urged the judge to continue DYFS' obligation to provide Father services after filing the complaint. The judge did so.

Mother also appeared at this hearing, and the judge asked her some questions. Toward the end of that proceeding, the judge advised Mother that counsel would be appointed for her if she applied and was qualified. Mother completed an application.

Neither Mother nor Father appeared for the subsequent hearing on September 9, 2008, but counsel for both appeared. The guardianship complaint was filed that day.

The next hearing was held on January 9, 2009. At that hearing, DYFS requested entry of default against both parents because neither had responded to the guardianship complaint and neither was present. Although the parents' respective attorneys appeared, confusion over their authorization to represent their clients had arisen. The dialogue between the lawyers and the judge shows the confusion was attributable to the fact that the Title 30 protective services proceedings conducted prior to the filing of the guardianship complaint had been held under an "FN" docket number. For that reason, the parents needed to file new applications for representation before obtaining representation in the guardianship case, which had a "FG" docket number.

Based on the testimony of a caseworker that Mother had been served with the guardianship complaint and had not been confirming visitations, the judge relieved Mother's attorney, entered a default against Mother and suspended her visitation. Because Father's whereabouts were unknown and he had not been served, the judge did not enter a default against him. His attorney did not ask to be released.

A case management conference was held on March 6, 2009. Father and his attorney appeared, but Mother did not appear and was not represented.

On May 8, 2009, both parents appeared for another case management conference. Father was represented and Mother completed the requisite application for representation in guardianship proceedings. Subsequently, the default entered against Mother was vacated.

A final case management conference was scheduled for August 25, 2009. By that time, the attorney who had previously represented Mother had been reappointed and appeared for the conference. Father's attorney appeared by phone. Trial dates were scheduled, and Father's attorney, addressing the judge's question about time needed for this trial, advised that he would not be presenting "much of a defense." By August 2009, DYFS had selected and placed both children in a pre-adoptive home.

Trial was held on October 26 and 28 and December 14, 15 and 19, 2009. There was no genuine dispute that neither parent was in a position to provide shelter and care for the children at that time. Furthermore, in the opinion of the one expert who did bonding evaluations, the children's relationship with their parents was best characterized as "an acquaintance."

Father's attorney was not present on the third day of trial. That was the day Mother and one of her adult children, not Father's child, testified for the defense. Mother recounted her contacts with the children while they were in A.F.'s custody, described the apartment she claimed would be available to her, denied having a continuing problem with substance abuse and discussed the things DYFS failed to do to help her attend visits with her children and secure housing. Her adult son's testimony was about his relationship with Mother and his perception of her relationship with K.L.S. and DYFS. Neither witness mentioned Father.

With those facts in mind, we turn to consider the parents' claimed denial of the right to court-appointed counsel. The trial court was mistaken about the parents' respective rights to appointed counsel during the period between the removal of the children from A.F.'s custody and the filing of the guardianship complaint. We suspect the mistake can be attributed, in large measure, to the "'unnecessary complexity . . . introduced into the disposition of . . . child-welfare cases by the parallel but not congruent tracks of Title 9 and Title 30 proceedings.'" N.J. Div. of Youth and Family Servs. v. A.P., 408 N.J. Super. 252, 265 (App. Div. 2009) (quoting In re Guardianship of G.S., III, 137 N.J. 168, 179 (1994)).

It is well-settled that, without regard to any statutory authority to direct payment of court-appointed lawyers, judges "should assign counsel without cost to indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent termination of their parental rights." Crist v. N.J. Div. of Youth and Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975). We reasoned, "[s]imple justice demands nothing less in light of the magnitude of the consequences involved." Ibid. The Supreme Court has endorsed and relied on Crist in addressing other questions of legal representation for indigents. See, e.g., In re Guardianship of Dotson, 72 N.J. 112, 123 (1976) (noting "indigent parents who are subjected to proceedings which may result in either temporary loss of custody or permanent loss of parental rights have a constitutional right to appointed counsel" and citing Crist).

Crist requires appointment of counsel for indigent parents in Title 30 proceedings prior to the filing of a termination complaint in cases where DYFS has assumed custody of the children. See N.J. Div. of Youth and Family Servs. v. D.C., 118 N.J. 388, 394-95 (1990) (relying on Crist and stating in dicta that indigent "parents have a right to representation" in neglect proceedings pursuant to N.J.S.A. 9:6-8.54; proceedings involving DYFS' temporary assumption of custody, N.J.S.A. 30:4C-12; and proceedings to terminate parental rights pursuant to N.J.S.A. 30:4C-15 to -24); cf. N.J.S.A. 30:4C-74 to -79 (providing for services in the family's home).

During the period between removal of a child pursuant to N.J.S.A. 30:4C-12 and the filing of a termination complaint, the court enters permanency orders immediately affecting temporary custody that are also likely to affect whether the child's permanent placement will be with a parent, a relative or a third-party selected by DYFS. N.J.S.A. 30:4C-61.2. Those orders delineate DYFS' obligation to provide visitation and the services that a parent needs before the child can be returned home. Ibid.

The terms of those orders are important to the ultimate inquiry in a termination case the best interests of a child as defined in the four pronged standard governing termination of parental rights. N.J.S.A. 30:4C-15.1; see N.J. Div. of Youth and Family Servs. v. T.C., 251 N.J. Super. 419, 435-37 (App. Div. 1991). For that reason, legal advice "as early in the proceeding as possible" is important to avoid a negative outcome. Ibid.

The Legislature has expressly authorized representation by counsel, at State expense, for indigent parents. Those statutes apply in abuse and neglect proceedings under Title 9, N.J.S.A. 9:6-8.43; in any action "concerning termination of parental rights filed pursuant to [N.J.S.A. 30:4C-15]," N.J.S.A. 30:4C-15.4; and in the preliminary stages of kinship legal guardianship matters where legal representation is being provided by the Public Defender either through its law guardian program or its office of parental representation, N.J.S.A. 30:4C-85 (providing in those instances, the "same right" to representation as in actions under Title 9 and pursuant to N.J.S.A. 30:4C-15.4). DYFS questions whether the statutory right to counsel provided in N.J.S.A. 30:4C-15.4 applies prior to the filing of a termination complaint when the court is considering permanency plans and reviewing compliance while DYFS is providing services pursuant to Title 30. But, the scope of the statute is critical only when payment is in issue. In this case, the question is the right to counsel established in Crist. Under Crist, when a proceeding will result in temporary loss or permanent termination of parental rights, the parent has the right to court-appointed counsel, regardless of whether counsel will be paid at public expense.

The parents argue that the deprivation of the right to counsel at any point in this proceeding requires reversal whether or not they can demonstrate prejudice. We disagree. Reversal without a showing of prejudice is an appropriate remedy for errors that are "structural." See Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35, 46-47 (1999). Structural error is a "defect affecting the framework within which [a] trial proceeds" and "infect[ing] the entire trial process." Ibid. Because orders specifying a child's placement and services for the family in DYFS litigation do not affect the "legitimacy" of the trial, the more appropriate standard is one that conditions relief on prejudice. See R.2:10-2; N.J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 307 (2007) (adopting a deficient performance plus prejudice standard for claims of ineffective assistance of counsel); see also State v. Purnell, 161 N.J. 44, 61 (1999) (discussing structural error). At minimum, prejudice exists when there is "a reasonable probability" that the result would have been different but for the terms of the order or orders entered without representation. See B.R., supra, 192 N.J. at 307; cf. R. 2:10-2 (clear capacity to produce an unjust result). Compare Briscoe v. State, 912 S.W.2d 425, 426-27 (Ark. 1996) (finding the denial of representation to which the parent was entitled harmless when preliminary orders were addressed since representation was provided at the termination trial, which was de novo and not limited to the record developed in prior proceedings), with In re Torrance P., 724 N.W.2d 623 (Wis. 2006) (dismissal of parent's attorney was structural error affecting the fact-finding and dispositional phases of the proceeding).

There was error in this case. First, the judge should have advised Father and Mother of their right to appointed counsel when they first appeared. Second, the judge mistakenly relied on the Public Defender's policies rather than Crist when she initially informed Father about his right to representation. And, third, the judge mistakenly relieved Mother's appointed attorney because there was confusion brought about by a change in docket numbers. That said, we turn to consider whether either parent was prejudiced.

We cannot conclude that there is a reasonable probability that this outcome would have been different but for the orders entered when the parents were not represented.

Father appeared only three times on preliminary matters before counsel was appointed. In each instance, he was incarcerated and unavailable to assume custody or accept services. Thus, his right to custody at that time was not infringed. Similarly, as he was not available for services, his opportunity for prompt reunification with his children was not diminished by the court order. Rather, it was diminished by his confinement. Moreover, Father had no objection to his children being in the custody of their caretakers, who were his relatives.

After counsel was appointed, Father's counsel missed two hearings on placement and services. On one occasion, the lawyer sent a substitute. Accordingly, Father was represented. On the other, the proceeding resulted in entry of an order that simply enforced a prior order authorizing removal of the children if D.F. did not qualify to serve as their caregiver. That prior order was entered when Father's lawyer was present. We see no possibility of prejudice from either of these failures to appear.

Most important, once Father participated in this case, DYFS provided significant services and, for a time, he made remarkable progress. He did not lose an opportunity to accept services as a consequence of the delay in appointing him counsel.

Father also claims a deprivation of the right to counsel at trial. That claim is based on his attorney's absence on one day the day Mother and her adult son testified in her defense. The scope of their testimony was narrow and wholly unrelated to Father or DYFS' case against him. Whether addressed or unaddressed, that testimony had no potential to affect the outcome of Father's case.

We are also convinced that there is no reasonable probability that the outcome of Mother's termination trial would have been different, but for denial of her right to counsel. Mother did not participate in the litigation until September 10, 2007. Thereafter, orders providing services were entered.

This case is not comparable to T.C., where the placement of the child following her removal allowed her to develop a bond with a foster parent upon which DYFS relied in proving that termination was in the best interests of the child. T.C., supra, 251 N.J. Super. at 419, 431. In this case, DYFS did not rely, at all, in any part of its case, on the bond the children had with the family interested in adopting them.

Confident that neither parent was prejudiced with respect to the denial or performance of counsel, and having concluded that all other arguments presented by both parents are without sufficient merit to warrant discussion, we affirm. R. 2:11-3(e)(1)(E). The judgment is adequately supported by the record and based on a proper application of the four-pronged best interests standard. N.J.S.A. 30:4C-15.1(a); see R. 2:11-3(e)(1)(A); N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007).

Affirmed.

1 The record on appeal, which included orders entered prior to the filing of the guardianship complaint but not the transcripts of those proceedings, was inadequate to permit us to determine whether this claim could be resolved on the trial court's record. N.J. Div. of Youth and Family Servs. v. B.R., 192 N.J. 301, 311 (2007); see R. 2:9-1(c); R. 2:10-6. Accordingly, we directed the parties to provide the transcripts and file supplemental briefs on an expedited basis.