DIVISION OF YOUTH AND FAMILY SERVICES v. M.W and P.W and D.W and P.G IN THE MATTER OF C.W N.G., and Z.G., minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3741-10T1

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.W.,

Defendant-Appellant,

and

P.W.,

Defendant-Respondent,

and

D.W. and P.G.,

Defendants.

_____________________________

IN THE MATTER OF

C.W., N.G., and Z.G., minors.

_____________________________

December 8, 2011

Submitted November 29, 2011 - Decided

Before Judges Payne and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-86-11.

Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Carla Livingston, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent P.W. (Ruth Harrigan, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.W. (Charles Ouslander, Designated Counsel, on the brief).

PER CURIAM

Defendant M.W. is the maternal grandmother of defendant D.W., and the great-grandmother of D.W.'s three children, C.W., born in November 2002, N.G., born in May 2005, and Z.G., born in May 2007. M.W. appeals from the February 16, 2011 Family Part order, which dismissed her as a defendant in this matter. We affirm.

The facts are straightforward. D.W. was a minor at the time of C.W.'s birth. In May 2003, M.W., with whom D.W. was living at the time, obtained temporary custody of C.W. with D.W.'s consent.

Plaintiff Division of Youth and Family Services (the Division) first became involved with D.W. in December 2005 as a result of a report that she was physically abusing C.W. The report was unsubstantiated, as were two other reports of physical abuse of C.W. in June 2006, and August 2007. The record indicates that D.W. and the children lived with defendant P.G., D.W.'s boyfriend and the biological father of N.G. and Z.G., in their own apartment, and D.W. was the children's primary caretaker.

In November 2008, the Division substantiated reports of D.W.'s physical abuse of C.W., and referred her for parenting skills training. After this incident, C.W. sometimes resided with M.W., but D.W. remained his primary caretaker. In June 2009, the Division substantiated two reports of physical abuse of C.W., one involved an unknown perpetrator, and the other involved D.W. In July 2009, the Division substantiated P.G.'s physical abuse of N.G. The Division presented a safety plan for the children to D.W., which she refused to sign.

On October 19, 2009, the court entered an order awarding joint custody of C.W. to M.W., D.W., and defendant P.W., C.W.'s biological father, and awarded D.W. physical custody. C.W. resided with D.W. thereafter, and she was his primary caretaker. In November 2010, D.W. tested positive for benzodiazepines, heroin, and marijuana. The Division referred her for substance abuse treatment.

D.W. failed to comply with her substance abuse program, had three suspicious drug screens, and refused to sign releases for the records from her drug treatment program. In addition, the Division discovered that she had pled guilty to theft by unlawful taking and attempt to cause bodily injury, and faced incarceration if she failed to comply with the terms of her probationary sentence. As a result, the Division removed the children from D.W.'s home on December 21, 2010, pursuant to a notice of emergency removal, and placed them in an approved resource home.

On December 23, 2010, the Division filed a complaint against D.W., P.W. and P.G. The Division included M.W. as a defendant because she had joint custody of C.W. In a December 23, 2010 order, the court awarded legal and physical custody of the children to the Division, and awarded D.W., P.G. and M.W. weekly supervised visitation. M.W. wanted the children placed with her. However, the Division ruled her out as a caretaker.

At a fact-finding hearing on February 16, 2011, D.W. stipulated that she placed her children at risk of harm and committed acts that constitute abuse and neglect under New Jersey law. The court did not find that M.W. abused or neglected any of the children, dismissed her from the litigation, directed the Division to further consider her as a placement option, and advised her of her right to administratively appeal the Division's decision. This appeal followed.

On appeal, M.W. contends that the court erred in dismissing her from the litigation because she was C.W.'s legal custodian, and erred in not affording her a dispositional hearing. We disagree.

M.W. was not C.W.'s legal custodian at the time of the dismissal. Her right to joint custody of C.W. terminated when the court awarded the Division legal and physical custody of the children on December 23, 2010. In addition, because there were no facts establishing that M.W. abused or neglected the children, and no finding of abuse or neglect as to her, she was not entitled to a dispositional hearing, and the court was required to dismiss her from the litigation. N.J.S.A. 9:6-8.50c; New Jersey Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 387-88 (2009).

Defendant also contends that she received the ineffective assistance of counsel because her attorney failed to seek an evaluation to determine whether C.W. would suffer an adverse effect if separated from M.W., and to request an in camera interview with C.W. This contention lacks merit.

"[A] defendant has a right to counsel when a complaint is filed against him or her charging abuse and neglect and threatening the individual's parental rights." New Jersey Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 345 (App. Div.), certif. denied, 192 N.J. 296 (2007); see also N.J.S.A. 9:6-8.43a. "[T]he performance of that counsel must be effective." New Jersey Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). To prevail on a claim of ineffective assistance of counsel, "(1) counsel's performance must be objectively deficient -- i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense -- i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 307 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984)).

We are satisfied that M.W. cannot establish a prima facie case of ineffective assistance of counsel. There was no finding that M.W. abused or neglected the children. Thus, she was not placed on the Division's Central Registry and can still be evaluated as a placement option for the children, and C.W. can be evaluated and interviewed by the court during that process.

In addition, M.W. is not without a remedy. The court ordered the Division to further consider her as a placement option. If the Division again rules her out as a caretaker, she can administratively appeal that decision.

Affirmed.