listing cases in which a presumption of prejudice under Cronic was appropriate
How later courts described this case
- listing cases in which a presumption of prejudice under Cronic was appropriate
- concluding presumption of prejudice was proper where defendant's counsel was a prosecution witness and potentially liable for the same criminal charges on which defendant was tried
Written by the judges who cited it.
The opinion
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4461-17T1
NEW JERSEY DIVISION
OF CHILD PROTECTION
AND PERMANENCY,
Plaintiff-Respondent,
v.
S.L.H.,
Defendant,
and
D.W.R.,
Defendant-Appellant.
____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF M.A.H.,
a Minor.
____________________________
Argued May 14, 2019 – Decided June 3, 2019
Before Judges Yannotti, Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FG-08-0064-17.
Anne E. Gowen, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; Anne E. Gowen, on the briefs).
Erica L. Sharp, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Erica L. Sharp, on the
brief).
Todd S. Wilson, Designated Counsel, argued the cause
for minor (Joseph E. Krakora, Public Defender, Law
Guardian, attorney; Todd S. Wilson, on the brief).
PER CURIAM
Defendant D.W.R. (David) 1 appeals from an April 9, 2018 Family Part
order terminating his parental rights to his son, M.A.H. (Mark). The child's
mother, S.L.H. (Sarah), whose parental rights were terminated during the sa me
proceeding, has not appealed. We find no merit in David's appeal and affirm.
1
We use fictitious names for D.W.R., S.L.H., M.A.H., and D.C., to protect their
privacy and for ease of reference. See R. 1:38-3(d)(12).
A-4461-17T1
2
I.
Mark was born in May 2016. The next day, the Division of Child
Protection and Permanency (Division) received a report from a hospital social
worker that upon Mark's birth, Sarah tested positive for opiates and other
controlled dangerous substances. As a result of Sarah's substance use, Mark
suffered withdrawal symptoms and remained hospitalized for over ten days.
Sarah informed a Division caseworker that she thought she knew the identity of
Mark's biological father and would contact him. Shortly after being discharged
from the hospital, Sarah was incarcerated at the Camden County Correctional
Facility (CCCF) as a result of a parole violation.
On May 23, 2016, Mark was discharged from the hospital, removed from
Sarah's care, and placed in a Division-approved resource home. Two days later,
the Division filed a verified complaint under N.J.S.A. 9:6-8.30 (Title Nine) for
Mark's custody, care, and supervision due to Sarah's incarceration, history of
substance abuse before and during pregnancy, and her previous involvement
with the Division. On May 25, 2016, the court granted the Division immediate
custody of Mark, and also ordered Sarah to provide the Division with the identity
of Mark's biological father.
A-4461-17T1
3
On May 31, 2016, a Division caseworker visited Sarah at the CCCF, and
Sarah identified David as Mark's father. She also provided the phone number
for "an aunt" who she believed would have David's contact information. A week
later, the Division caseworker called the aunt, who reported that David was
incarcerated in either Pittsburgh or Harrisburg, Pennsylvania.
At a June 28, 2016 court proceeding, the court continued Mark under the
Division's custody, care, and supervision, and noted that the Division was in the
process of identifying and contacting David. On July 5, 2016, a Division
caseworker received a voicemail from an employee of the Pennsylvania
Department of Corrections, informing the caseworker that David was
incarcerated in Pennsylvania, but under a different surname. Thereafter, on
August 4, 2016, the Division learned that David was transferred to the
Pennsylvania State Correctional Institution at Graterford (Graterford), in
Graterford, Pennsylvania.
A Division caseworker attempted to visit David at the prison on August
18, 2016, but was unsuccessful, as the facility had not yet "processed the
paperwork" to include the caseworker on the prison's approved visitors list.
Four days later, a Division caseworker spoke with David on the phone and
informed him that the next court date in the Title Nine action was scheduled for
A-4461-17T1
4
September 28, 2016. During that call, David agreed to take a paternity test,
expressed his interest in obtaining custody of Mark, and stated that he was
incarcerated for a probation violation, and expected to be released at the end of
September 2016.
On August 31, 2016, David left a voicemail for a Division caseworker,
advising that he was released from prison and residing in a halfway house in
Philadelphia, Pennsylvania. Later that day, the caseworker met with David in
Philadelphia and discussed his visitation with Mark. The caseworker again
reminded David of the September 28, 2016 court date, and asked if he needed a
bus pass, tokens, or other assistance to attend visits with Mark. After the
Division arranged visitation, David had his first visit with Mark on September
16, 2016. David also attended the September 28, 2016 case management
conference, when the court ordered him to complete a paternity test. 2
David missed his scheduled visits with Mark on October 6 and 13, 2016.
On October 14, 2016, a Division caseworker attempted to meet David at the
halfway house where he was residing, but was informed by the staff that David
had been missing for two weeks. Despite leaving multiple voicemails, the
2
On November 11, 2016, David's paternity test results confirmed that he was
Mark's biological father.
A-4461-17T1
5
caseworker was unable to reach David by phone. On October 19, 2016, David
called the caseworker and explained that he had a new phone number and was
starting a new job. David missed his October 20, 2016 and October 27, 2016
visits with Mark. He also failed to attend the October 25, 2016 court date,
claiming to the Division caseworker that he was at work.
On November 2, 2016, David called a Division caseworker and advised
that he no longer resided at the halfway house. He also provided a new address,
and confirmed his visit with Mark for the next day. However, David missed his
November 3, 2016 visit with Mark, and a subsequent scheduled visit on
November 10, 2016. On November 17, 2016, David arrived approximately one
and one-half hours late for a pre-scheduled visit with Mark.
On November 21, 2016, a Division caseworker spoke with David's parole
officer, who stated that David missed his last parole appointment and had a
"history of running from parole" by changing his address and phone number.
The next day, David missed yet another visit with Mark. After unsuccessful
attempts to contact David telephonically, a Division caseworker called David's
parole officer again on November 30, 2016. The parole officer advised that he
was also unable to locate David, and accordingly issued a warrant for David's
arrest for his failure to report to parole.
A-4461-17T1
6
After missing his December 1, 2016 visit with Mark, David contacted the
Division on December 2, 2016, and stated that he had no permanent address.
David failed to contact the Division to confirm his December 8 and 15, 2016
visits with Mark, and those visits were cancelled.
On December 7, 2016, David provided a Division caseworker with the
name of his cousin, D.C. (Denise), as a potential placement for Mark. Less than
a week later, a caseworker contacted Denise to assess her interest in adopting
Mark and explain the Interstate Compact for the Placement of Children (ICPC)
process. Thereafter, on December 20, 2016, a Division caseworker met with
Denise and her daughter, and conducted a home inspection. The caseworker
observed no safety issues in the home and noted that the utilities were in good
working order. David, however, failed to attend the scheduled home visit. That
same day, the Division received a call from David's parole officer that David
had been arrested and would be reincarcerated at Graterford. As a result, David
missed his December 22 and 28, 2016 visits with Mark.
On January 6, 2017, a Division caseworker called David at Graterford.
David informed the caseworker that he would be incarcerated for approximately
six months. The caseworker advised David that the next court date in the Title
A-4461-17T1
7
Nine action was scheduled for January 17, 2017, and that he had a psychological
and parenting capacity evaluation scheduled in March 2017.
At the January 17, 2017 proceeding, the Division named David as a
defendant due to his status as Mark's father, and the court assigned counsel.
Significantly, the Division did not lodge any Title Nine allegations against him.
The court issued an order that same day in which it determined that Sarah
"abused or neglected" Mark, based on its findings that she used illegal
substances during pregnancy and that Mark suffered withdrawal. The court also
scheduled a permanency hearing for April 10, 2017. 3
For the next three months, a Division caseworker unsuccessfully
attempted to schedule visits at Graterford with David and Mark, but was
repeatedly informed by a prison social worker that the Division's request to be
included on the prison's visitors list had not yet been "processed" or "approved."
On March 9, 2017, the caseworker was informed by the prison social worker
that David was transferred to Pennsylvania State Correctional Institution at
Chester (Chester) in Chester, Pennsylvania.
3
The parties have not provided us with a copy of the transcript from the January
17, 2017 hearing.
A-4461-17T1
8
The next day, a Division caseworker spoke with David on the phone and
David asked whether the Division was able to contact Denise. The caseworker
informed David that the Division made several unsuccessful attempts to reach
her, but that it would continue to try to make contact. The caseworker also
discussed with David's prison counselor the process of scheduling "face to face
visits" at the prison with David and Mark.
On March 30, 2017, a Division caseworker brought Mark to the prison for
a non-contact visit. David had similar visits with Mark at the prison on April
20, 2017 and June 22, 2017, and they "played through the glass."
From January to March 2017, the Division repeatedly called Denise to
assess her as a placement for Mark. After a Division caseworker left multiple
voicemails for Denise, she eventually contacted the Division on March 29, 2017,
and expressed interest in providing a relative resource home for Mark.
On April 10, 2017, the court conducted a permanency hearing. At that
proceeding, the court approved the Division's permanency plan for "termination
of parental rights followed by adoption." The court determined the Division's
plan was appropriate because Sarah was not participating in services, "[Sarah]
[was] missing . . . , [and] [David] [was] incarcerated out of state." Although
A-4461-17T1
9
David's counsel was present, David did not appear at the hearing, as he remained
incarcerated in Pennsylvania.
On May 15, 2017, the Division filed a complaint for guardianship of Mark.
At a May 17, 2017 hearing, the court ordered Mark to continue under the care,
custody, and supervision of the Division, and in his current resource placement,
pending the outcome of the guardianship proceeding. The court noted that
David was absent and still incarcerated in Pennsylvania. Further, the court
scheduled the next court date for July 25, 2017.
At the July 25, 2017 proceeding, the court ordered David to participate in
an evaluation by Linda R. Jeffrey, Ph.D., and attend a substance abuse
assessment. The court also ordered David to contact the Division upon his
release from incarceration. Although his counsel was present at the July 25
proceeding, David did not appear as he remained incarcerated.
On August 29, 2017, Dr. Jeffrey conducted a bonding evaluation "[t]o
assess the attachment of [Mark] to his resource home parents." Both resource
parents expressed their desire to adopt Mark, as they considered him their son
since he was placed in their care on May 23, 2016. Dr. Jeffrey observed that
"[Mark] displayed secure attachment to each of his resource parents." Dr.
Jeffrey concluded that "[s]everance of a secure attachment is likely to place a
A-4461-17T1
10
child of [Mark's] age at risk for serious and enduring harm and to disrupt his
adjustment in multiple domains of development." Accordingly, she
recommended Mark remain in the resource parents' care, "where he presents as
flourishing."
On September 11, 2017, David called a Division caseworker and advised
that he would be released on September 20, 2017. After his release, Dr. Jeffrey
conducted a psychological evaluation on September 29, 2017, "[t]o assess
[David's] mental health status and parenting capacity." David reported that he
resided in a halfway house and planned for Mark to live with Denise and her
daughter if he was granted custody. Dr. Jeffrey diagnosed David with a parent-
child relational problem, chronic and severe adjustment disorder, and mixed
personality with narcissistic, antisocial, and dependent personality features.
Dr. Jeffrey also concluded that David was unprepared to: 1) "provide a
stable, secure parenting environment for [Mark]"; 2) "provide independent
housing or a steady income to support [Mark]"; and 3) "serve as an appropriate
role model for [Mark] of emotional maturity, attunement, empathy,
rule-governed behavior, and personal responsibility." Dr. Jeffrey also
determined that Mark "would be likely to be at risk for harm if placed in
[David's] care."
A-4461-17T1
11
Dr. Jeffrey conducted a second bonding evaluation "[t]o assess the
attachment of [Mark] to [David]." She observed that David's "reunification plan
is to rely upon [Denise] and other relatives for housing and 'a very stable home'
provided by others." Dr. Jeffrey concluded that Mark "related to [David] as a
pleasant visitor and playmate." She added that "[Mark] did not relate to [David]
as a secure base, a source of reliable and consistent stability and security, or as
a parenting authority." Dr. Jeffrey determined that David "is not prepared to
provide a minimal level of safe parenting for [Mark]."
On October 2, 2017, David appeared with counsel at a case management
conference where the court ordered him to attend a substance abuse assessment
and parenting skills classes. Three days later, David had a one-hour-long
supervised visit with Mark at the Division office. Thereafter, David visited with
Mark, usually once a week.
In March 2018, the court conducted a one-day trial on the Division's
guardianship complaint. At trial, the Division relied on documentary evidence
and the testimony of Stephanie Long, a Division caseworker assigned to Mark's
case, and Dr. Jeffrey, who was qualified as an expert in clinical and forensic
psychology. David testified, but he failed to proffer any expert opinion or
documentary evidence. The Law Guardian presented no witnesses or other
A-4461-17T1
12
evidence. The court issued an oral decision on April 4, 2018 that terminated
David's parental rights, and issued a conforming judgment on April 9, 2018.
This appeal followed.
On appeal, David argues that the Division failed to establish all four
prongs of the "best interests of the child test" under N.J.S.A. 30:4C-15.1(a) by
clear and convincing evidence. David also claims he was denied a fair hearing
based upon the ineffective assistance of his trial counsel. For the reasons that
follow, we disagree with each of David's arguments, and affirm.
II.
As to David's first point, because all of the trial judge's findings were
supported by evidence the judge found to be clear, convincing, and credible,
they are entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M.,
211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998).
Parents have a constitutionally protected right to the care, custody and
control of their children. Santosky v. Kramer, 455 U.S. 745, 753 (1982); In re
Guardianship of K.H.O., 161 N.J. 337, 346 (1999). The right to have a parental
relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v.
R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W.,
103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's
A-4461-17T1
13
obligation to protect children from harm. N.J. Div. of Youth & Family Servs.
v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10
(1992).
To effectuate these concerns, the Legislature codified the test for
determining when a parent's rights must be terminated in a child's best interests.
N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing
evidence the following four prongs:
(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) The [D]ivision 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 termination of parental rights; and
(4) Termination of parental rights will not do more
harm than good.
See also A.W., 103 N.J. at 604-11.
A-4461-17T1
14
A. Prong One
David first argues that the Division failed to show by clear and convincing
evidence that he harmed Mark, or will continue to harm him, and maintains the
court improperly based its prong one findings on his struggle to obtain
employment and housing. He further contends there was no evidence he "was
able but chose not to secure independent housing and an adequate . . . job." We
disagree with David's arguments because the court's prong one findings are
supported by substantial, credible evidence in the record.
The court determined that David's incarceration rendered him unavailable
to care for Mark, and characterized the case as the "slow walking neglect of a
child." Under the first prong, harm to the child "must be one that threatens the
child's health and will likely have continuing deleterious effects on the child."
K.H.O., 161 N.J. at 352. In addition to physical abuse and neglect, the mental
and emotional health of a child should be considered. A.W., 103 N.J. at 604-05.
In this regard, a parent's failure to provide a safe and stable permanent home
may establish harm under prong one. In re Guardianship of D.M.H., 161 N.J.
365, 383 (1999). Further, "[c]ourts need not wait to act until a child is actually
irreparably impaired by parental inattention or neglect." Ibid. "[T]he focus is
on the effect of harms arising from the parent-child relationship over time on
A-4461-17T1
15
the child's health and development." K.H.O., 161 N.J. at 348. Accordingly,
"[i]ncarceration is . . . probative of whether the parent is incapable of properly
caring for . . . or has abandoned the child." R.G., 217 N.J. at 554-555 (quoting
In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993)).
Here, David was incarcerated when Mark was born. Although he was
released approximately three months later, he was reincarcerated within four
months, due to a parole violation. As a result, David was unavailable to care for
Mark, provide the necessary emotional and physical support during the first
sixteen months of Mark's life, and bond with him. During that period, Mark
bonded with his resource parent, and as the unrebutted trial testimony from Dr.
Jeffrey established, separating Mark from his resource parents would cause
serious and enduring psychological harm.4
Even when not incarcerated, David failed to attend at least nine scheduled
visits with Mark, and was late for at least one other. He also failed to maintain
4
We acknowledge that that although incarceration alone is insufficient to
establish parental unfitness, "particularized evidence of how a parent's
incarceration affects each prong of the best-interests-of-the-child standard" can
support termination of parental rights. R.G., 217 N.J. at 556. Here, the court
did not terminate Mark's parental rights solely because David was previously
incarcerated. To the contrary, the court correctly noted David's unavailability
at Mark's birth and immediately beforehand, when Sarah was using drugs while
pregnant. David's inability to care for Mark, and his withholding of solicitude
from him, supports the court's prong one and two findings.
A-4461-17T1
16
a permanent, stable home, instead moving from address to address, without
properly advising his parole officer, or the Division. As Dr. Jeffrey concluded,
David was "not prepared to provide a stable, secure parenting environment for
[Mark]."
Finally, we disagree with David's assertion that the court's conclusions
were based on his economic circumstances. As noted, there is substantial,
credible evidence in the record, independent of David's financial situation, such
as the harm caused to Mark as a result of his repeated incarcerations and his
failure to consistently attend visits once released, to support the court's finding
that Mark's "safety, health, or development" has been, and will continue to be,
endangered by a continued relationship with David. See N.J.S.A. 30:4C-
15.1(a)(1).
B. Prong Two
With respect to prong two, David primarily contends that the court
incorrectly relied on Dr. Jeffrey's evaluation when it concluded he would be
unable to mitigate the harm Mark would face if separated from his resource
parents. We disagree.
The second prong relates to parental unfitness and "focuses on the parent's
ability to overcome the harm to the child." K.H.O., 161 N.J. 352. The findings
A-4461-17T1
17
under the first prong overlap with the second. See R.L., 388 N.J. Super. at 88.
A "pattern of parental inaction and neglect" may demonstrate parental unfitness.
N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.
2007). A court "should only determine whether it is reasonably foreseeable that
the parents can cease to inflict harm upon the children entrusted to their care."
A.W., 103 N.J. at 607.
As noted, after his release, David failed to consistently visit Mark or
maintain a stable residence. Instead, he elected to violate his parole resulting in
his reincarceration. As the court explained, David "knew he had a baby and the
stakes were so much higher than his own freedom or future plans for
independence at the age of [fifty-two]." In addition, according to Dr. Jeffrey’s
evaluation, David was unprepared to "provide a stable, secure parenting
environment[,] . . . independent housing[,] or a steady income to support
[Mark]." Dr. Jeffrey testified that David was unable to understand or properly
address the harm that Mark would face if separated from his resource parents,
who he had been with since he was less than two weeks old. She also concluded
that David showed a lack of motivation to change his behaviors.
A-4461-17T1
18
C. Prong Three
David next asserts the Division failed to make "reasonable efforts to
provide services to help the parent correct the circumstances which led to the
child’s placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Specifically,
David maintains the Division failed to offer him financial assistance, help him
obtain employment, and pay the first month's rent and security deposit for an
apartment. He further contends that his one-hour supervised visitation with
Mark was "paltry," and that the Division should have provided him with longer,
unsupervised visits. Again, we are unpersuaded by these arguments.
With respect to the third prong, reasonable efforts include: "consultation
and cooperation with the parent in developing a plan for appropriate services;
. . . providing services that have been agreed upon, to the family, in order to
further the goal of family reunifications; . . . and facilitating appropriate
visitation." N.J.S.A. 30:4C-15.1(c). "The diligence of [the Division’s] efforts
on behalf of a parent is not measured by their success." D.M.H., 161 N.J. at
393. Instead, the Division's "consistent efforts to maintain and support the
parent-child bond are central to the court's determination." Ibid.
The court concluded that "the Division made very reasonable efforts to
work with [David] on reunification." For example, the court explained that
A-4461-17T1
19
while the Division's "work[] with the . . . ICPC . . . may not have been perfect,"
it was reasonable. Further, the court noted that the Division brought Mark to
the prison for visits, and facilitated weekly supervised visits. Additionally, the
court found Kinship Legal Guardianship (KLG) was not an appropriate
permanency plan, as the resource parents wished to adopt Mark. 5
Here, the Division provided substance abuse assessments and parenting
skills classes to David, reasonably worked with the ICPC to assess Denise, and
offered David weekly, one-hour-long supervised visits with Mark. As noted,
when David was first released from prison in August 2016, he failed to attend
these visits numerous times.
The Division nevertheless provided David with visits after his
reincarceration by bringing Mark to the prison. When the prison informed the
Division that the caseworker was not yet an approved visitor, the Division
consistently remained in contact with the prison to facilitate the necessary
approvals. Additionally, when David was released again in September 2017,
the Division offered him transportation, so that he could attend weekly visits.
Due to David's incarceration since before Mark's birth, it was entirely reasonable
5
We note that David has not challenged the court's finding under N.J.S.A.
20:4C-15.1(a)(3) that the Division "has considered alternatives to termination
of parental rights."
A-4461-17T1
20
for the Division to offer weekly supervised visits, rather than unsupervised
visits.
Finally, as noted, Dr. Jeffrey provided unrebutted expert testimony which
included the opinion that David lacked the motivation to change his behavior.
Based on the trial record, we are satisfied that the court correctly determined
that the Division clearly and convincingly satisfied prong three, and we reject
David's claims that additional services, including financial assistance or longer,
unsupervised visitation with Mark, would have "corrected the circumstances
which led to the [Mark's] placement outside the home." N.J.S.A.
30:4C-15.1(a)(3).
D. Prong Four
The final prong of the statutory best interests test assesses whether
"[t]ermination of parental rights will not do more harm than good" to the child.
N.J.S.A. 30:4C-15.1(a)(4). The fourth prong "serves as a fail-safe against
termination even where the remaining standards have been met." N.J. Div. of
Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question to be
addressed "is whether, after considering and balancing the two relationships, the
child will suffer a greater harm from the termination of ties with her natural
parents than from the permanent disruption of her relationship with her foster
A-4461-17T1
21
parents." K.H.O., 161 N.J. at 355. To satisfy this prong, the State should present
a "well qualified expert who has had [a] full opportunity to make a
comprehensive, objective, and informed evaluation of the child's relationship
with both the natural parents and the [resource] parent[]." N.J. Div. of Youth &
Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (citations and internal
quotation marks omitted).
As Dr. Jeffrey testified, David failed to recognize "any problems that
[Mark] would have being removed from [the resource home] where he had lived
for a considerable portion of his infancy and adjusting to an entirely new
environment." She also stated that Mark "did not relate to [David] as a secure
base, a source of reliable and consistent stability and security, or as a parenting
authority," and "would be likely to be placed at risk for harm because of the lack
of parenting capacity that [David] has achieved." With respect to Mark's
resource parents, Dr. Jeffrey testified that Mark "has a secure attachment" to
them, and Mark would suffer serious and enduring harm if the attachment was
severed. Dr. Jeffrey's testimony provides ample support for the court's finding
that Mark's best interests were served by terminating David's parental rights to
allow for his adoption by his resource parents.
A-4461-17T1
22
III.
Finally, David maintains we should reverse the court's April 9, 2018 order
because his trial counsel was ineffective. Specifically, he claims his counsel
failed to: 1) locate and communicate with him during the Title Nine litigation
and guardianship proceedings; 2) request that he be produced in court, either in
person, video, or telephonically, while he was incarcerated; 3) convince the
court to place Mark with Denise, rather than the resource family; and 4) prevent
his reincarceration for his parole violation. We disagree with all of Mark's
arguments.
In N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07
(2007), our Supreme Court adopted the two-prong test established in Strickland
v. Washington, 466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42 (1987), for
evaluating ineffective assistance of counsel claims in termination of parental
rights matters. A defendant alleging ineffective assistance of counsel must
prove:
(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."
A-4461-17T1
23
[B.R., 192 N.J. at 307 (quoting Strickland, 466 U.S. at
694).]
The standard is "highly deferential," and "a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance . . . ." Ibid. In other words, a defendant must "overcome
the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy." Id. at 307-08 (quoting Strickland, 466 U.S. at
689). "[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable[.]" Strickland, 466
U.S. at 690.
Based on the record before us, there was no showing that counsel's
representation was "objectively deficient." It is undisputed that David's counsel
appeared in court on his behalf from the time she was appointed at the Title Nine
fact-finding proceeding in January 2017. While the record does not explain why
David's counsel failed to contact him during the early stages of the Title Nine
proceedings, or arrange for his appearance by video or telephone, we are
satisfied that David's interests were adequately represented at all critical stages
of the proceedings. In this regard, we note that the Division did not allege David
committed any Title Nine violations, and named him in that proceeding only
because he was Mark's biological father. We also observe that David was aware
A-4461-17T1
24
of the October 25, 2016 proceeding in the Title Nine action and failed to attend ,
despite the fact that he was not incarcerated at the time.
During the guardianship proceedings, counsel appeared on David's behalf,
and David appeared at the October 2, 2017 case management conference. At
trial, his counsel cross-examined Stephanie Long and Dr. Jeffrey, objected to
the resource mother's presence at trial, and presented David as a fact witness.
We also reject David's suggestion that his counsel's actions, or inactions,
had any role in his arrest for a parole violation. Rather, a warrant was issued
for David's arrest as a result of his failure to properly inform his parole officer
of his address.
We similarly reject David's speculative claim that effective counsel would
have addressed the ICPC process differently. According to David, his counsel
should have advised Denise to promptly respond to Division caseworkers' calls,
facilitated contact between the ICPC staff and Division caseworkers, informally
advocated with Pennsylvania's ICPC administrator, and encouraged contact
between Denise and Mark. The Division repeatedly contacted Denise, despite
her failure to respond to multiple voicemails, conducted a home assessment, and
explained to her how the ICPC process works. There is no support in the record
that counsel's performance was deficient, or that any hypothetical action taken
A-4461-17T1
25
by counsel would have affected how the Division addressed Denise as a potential
resource placement.
Moreover, David fails to establish that any deficiency prejudiced him.
Indeed, there was substantial, credible evidence, unrebutted by David (i.e., the
effect of David's incarceration on Mark, and Dr. Jeffrey's testimony), supporting
each of the N.J.S.A. 30:4C-15.1(a) prongs.
We also disagree with David's assertion that we should presume prejudice
under United States v. Cronic, 466 U.S. 648 (1984). In Cronic, the Supreme
Court described a narrow exception to the Strickland test, where "if [an] accused
is denied counsel at a critical stage of his trial," or "if counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing," prejudice to
the accused is presumed. Id. at 659. However, "[r]eversals following Cronic
have arisen only from . . . significant impairments of adequate representation
. . . ." Fritz, 105 N.J. at 62 (listing cases in which a presumption of prejudice
under Cronic was appropriate); see Gov't of Virgin Islands v. Zepp, 748 F.2d
123 (3rd Cir. 1984) (concluding presumption of prejudice was proper where
defendant's counsel was a prosecution witness and potentially liable for the same
criminal charges on which defendant was tried). "[T]he attorney's failure must
be complete." Bell v. Cone, 535 U.S. 685, 697 (2002).
A-4461-17T1
26
The narrow Cronic exception does not apply here. As noted, our Supreme
Court in B.R. established the two-part Strickland test to evaluate ineffective
assistance of counsel claims in termination of parental rights proceedings. B.R.,
192 N.J. at 305-07. Further, Cronic is inapplicable because David failed to
demonstrate that he was denied counsel at critical stages of the proceedings.
Indeed, as noted, counsel was present at the permanency hearing, and during the
entire guardianship proceeding, including trial. Finally, David has not
established that his counsel failed to subject the Division's case to "adversarial
testing."
To the extent not addressed, David's remaining arguments lack sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-4461-17T1
27