DCPP VS. A.L. AND S.B., IN THE MATTER OF AU.L. (FN-12-0172-17, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 10, 2020
• Docket: A-1399-18T3
• Status: Published

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1399-18T3

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, January 10, 2020

APPELLATE DIVISION v.

A.L.,

Defendant-Appellant,

and

S.B.,

Defendant. ______________________________

IN THE MATTER OF Au.L.,

a Minor. ______________________________

Submitted December 9, 2019 – Decided January 10, 2020

Before Judges Fisher, Accurso and Rose.

On motion for reconsideration of an opinion filed on October 28, 2019, in an appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-0172-17. Joseph E. Krakora, Public Defender, attorney for appellant (Anastasia P. Winslow, Designated Counsel, on the brief).

Gurbir S. Grewal, Attorney General, attorney for respondent (Jane C. Schuster, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Noel Christian Devlin, Assistant Deputy Public Defender, of counsel and on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

Defendant has moved for: (1) reconsideration of our recent disposition of

this appeal; and (2) a reopening and expansion of the appellate record to allow

defendant to pursue a claim of ineffective assistance of prior appellate counsel.

Because the second issue raises a matter of first impression, we have taken the

unusual step of deciding defendant's motion by opinion rather than order. For

the reasons that follow, we deny reconsideration because we find frivolous

defendant's argument that the brevity of our opinion on the merits reveals a

failure to adequately consider the record and the arguments presented. As for

the motion's novel second part, we will remand to the trial court for the

development of defendant's argument that her prior appellate counsel was

ineffective.

A-1399-18T3 2 I

To put things in perspective, we recently rendered an opinion on the merits

of defendant's appeal of a Title Nine determination. N.J. Div. of Child Prot. &

Permanency v. A.L., No. A-1399-18 (App. Div. Oct. 28, 2019). The Division's

suit concerned one child – Au.L., born in December 2016 – and alleged

defendant abused or neglected the child, who suffered neonatal abstinence

syndrome following birth. The record included evidence that two months before

the child's birth, defendant acknowledged she was a drug user, using up to five

bags of heroin daily during the first eight months of her pregnancy. Later in the

pregnancy, defendant tested positive for cocaine and heroin; she even tested

positive for cocaine usage a week before the child's birth. After briefly

recounting these circumstances, and an issue concerning a late attempt by

defendant "to keep the record open for an additional trial day so that she might

present expert witness testimony," we concluded that defendant's arguments

lacked sufficient merit to warrant further explanation, as Rule 2:11-3(e)(1)(E)

permits, adding that we also affirmed the order under review substantially for

the reasons set forth in the trial judge's "comprehensive and well-reasoned

written opinion." A.L., slip op. at 3.

A-1399-18T3 3 In the motion now before us, defendant – through new appellate counsel 1

– argues that we "eschewed the basic appellate obligation to review the record."

She extraordinarily contends that we did not "scrupulously review[]" the record.

To support this theory, defendant offers as evidence only the fact that our

opinion is three paragraphs in length. This unusual argument suggests that the

length of a court's opinion is proportionate to the court's investment of time and

energy in its disposition; in other words, defendant apparently believes courts

issue lengthy opinions when they have exerted a great amount of effort and short

opinions when they have given little or no attention to the record or the

arguments. No assertion could be more misinformed or misguided.

Some of the most celebrated judicial opinions have been extraordinarily

concise when compared to the compelling issues presented. The Court's

landmark decision in Brown v. Bd. of Educ., 347 U.S. 483 (1954) consists of

only thirteen paragraphs. See also Bivens v. Six Unknown Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971); Gideon v. Wainwright, 372 U.S. 335

(1963); Brady v. Maryland, 373 U.S. 83 (1963); Yick Wo v. Hopkins, 118 U.S.

1 Even though new appellate counsel advises that she was assigned to this matter on October 28, 2019 – the day our opinion issued – she was unable to move for reconsideration within the ten days required by Rule 2:11-6(a). We have, by separate order, granted defendant leave to file the motion out of time. A-1399-18T3 4 356 (1886). Justice Holmes's six-paragraph majority opinion in Schenck v.

United States, 249 U.S. 47 (1919), broke new ground in the way the Supreme

Court would thereafter apply the First Amendment to speech restrictions. Judge

Cardozo ushered in modern thought on tort law in Palsgraf v. Long Island R.

Co., 248 N.Y. 339 (1928), and contract law in Wood v. Lucy, Lady Duff-

Gordon, 222 N.Y. 88 (1917); the former consists of six paragraphs, the latter

only three, and yet, no law school tort or contract textbook would be complete

without them.

We, of course, do not mean to compare our prior opinion to these

landmarks in judicial thinking and writing. Far from it. These examples are

offered only as proof that the idea that longer opinions are the product of greater

consideration than shorter opinions is just simply wrong.

Defendant also seems to misconceive our disposition of her appeal. To

be sure, we relied on Rule 2:11-3(e)(1)(E) in rejecting her arguments, and we

then only briefly described why those arguments were without sufficient merit

to warrant further discussion. But we also affirmed substantially for the reasons

set forth by the trial judge in his thorough twenty-two-page written decision.

So, in criticizing this economical way in which we decided her appeal, we can

only wonder whether defendant is seriously arguing that when an appellate court

A-1399-18T3 5 affirms o.b. (on the opinion below), it means that the court did not thoroughly

review the record or adequately analyze the parties' arguments. What does that

say for the numerous instances when our Supreme Court has disposed of an

appeal in the same way? The Supreme Court regularly decides appeals by

adoption of either a majority or dissenting opinion. See, e.g., Miller v. State-

Operated School District of the City of Newark, __ N.J. __ (Nov. 4, 2019); State

v. Shangzhen Huang, __ N.J. __ (Oct. 23, 2019); Feuer v. Merck & Co., 238

N.J. 27 (2019); Chirino v. Proud 2 Haul, Inc., 237 N.J. 440 (2019); N.J.

Highlands Coalition v. N.J. Dep't of Envtl. Prot., 236 N.J. 208 (2018); State v.

Vasco, 235 N.J. 365 (2018); State v. Young, 233 N.J. 345 (2018); Thompson v.

Bd. of Trs., 233 N.J. 232 (2018); State v. Terrell, 231 N.J. 170 (2017); EQR-

LPC Urban Renewal North Pier, LLC v. City of Jersey City, 231 N.J. 157

(2017); Granata v. Broderick, 231 N.J. 135 (2017); In re Enf't of N.J. False

Claims Act Subpoenas, 229 N.J. 285 (2017). About a year ago, the Court

affirmed o.b. a judgment terminating parental rights, N.J. Div. of Child Prot. &

Permanency v. A.S.K., 236 N.J. 429 (2019), the very type of case that –

according to defendant – requires a greater degree of appellate scrutiny. Is

defendant seriously arguing that the Supreme Court did not adequately review

the record or sufficiently consider the parties' arguments in any of the important

A-1399-18T3 6 cases cited above when it entirely, or with only a few additional comments,

relied on an opinion authored by a lower court?

We need not press on in this vein. We reject the theory on which the

defendant's reconsideration motion is based. Having examined the motion

papers,2 the existing record, and the parties' arguments in light of the matters

raised in the motion, we find no reason to alter our prior disposition. Defendant's

reconsideration motion is denied. 3

2 Rule 2:11-6(a) states that answers are not permitted in response to reconsideration motions unless "requested by the court." We, in fact, invited the Division and the Law Guardian to respond to the motion, mainly to hear their position on the second aspect of the motion. They both submitted timely responses. 3 In her motion brief's first point, defendant argues that "reconsideration and de novo review of this appeal" should occur before "another Appellate Division panel." But she did not explain or argue in the body of that point why she believes another panel should hear this motion. We would note, however, that the court rules appear to require consideration of the motion by at least part of the original panel. See R. 2:11-6(b) (declaring that "[a] motion for reconsideration will be granted only if it is moved by a . . . judge who concurred in the judgment or decision"). A-1399-18T3 7 II

As mentioned above, defendant's motion has a second aspect. She argues

she was denied the effective assistance of counsel because her prior appellate

attorney failed to:

• "prepare a proper appellate record"

• "investigate trial counsel's failure to timely obtain an expert report or preserve A.L.'s right to present expert testimony at trial"

• "raise A.L.'s constitutional rights on appeal including A.L.'s fundamental right to due process of law and to effective assistance of trial counsel"

• "cite and argue controlling law regarding expert testimony including, without limitation, the State's failure to produce an expert report or to proffer expert opinions on medical causation meeting basis prerequisites to admissibility"

Greater detail on each of these main points is provided in the moving papers and

need not be repeated here in light of the disposition of this motion.

After consideration, we cannot – on this record – determine whether there

is merit to any part of defendant's ineffectiveness arguments. Indeed, our

consideration of some of defendant's contentions would be precipitous absent

further illumination because the record does not now adequately disclose why

the prior attorneys did what they did or why they did not take the steps that

A-1399-18T3 8 current counsel believes were critical. In short, we have been presented only

with skeletal assertions that must be further fleshed out; the matter warrants the

type of amplification that can only be provided by an evidentiary hearing.

The novel argument presented by this motion concerns how our courts

should handle claims of ineffective assistance of appellate counsel in abuse or

neglect cases. It is well-established that the right to counsel attaches at the trial

level in various child-related cases: parental termination proceedings, N.J. Div.

of Youth & Family Servs. v. B.R., 192 N.J. 301, 306-07 (2007); private adoption

proceedings, In re Adoption of J.E.V., 226 N.J. 90, 107-08 (2016); when the

Division seeks substantiation of abuse or neglect at an administrative level, N.J.

Dep't of Children & Families v. L.O., 460 N.J. Super. 1, 18 (App. Div. 2019);

and in abuse or neglect matters commenced in superior court, N.J. Div. of Child

Prot. & Permanency v. G.S., 447 N.J. Super. 539, 555 (App. Div. 2016), like

here. It follows like night follows day that the right to counsel in those matters

not only includes the right to effective counsel at the trial level but also in an

appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 396-97 (1985); State v.

O'Neil, 219 N.J. 598, 610-11 (2014); L.O., 460 N.J. Super. at 19-20.

The only pressing question before us concerns how an abuse or neglect

defendant who believes appellate counsel was ineffective should go about

A-1399-18T3 9 seeking relief. Defendant initiated her appellate counsel ineffectiveness claim

by moving in this court shortly after our disposition of the appeal pursuant to

Rule 2:11-6. This was not inappropriate. Obviously, as suggested by the B.R.

Court's determination as to how trial counsel ineffectiveness arguments should

be presented when the matter is on appeal, the sooner presented, the better. In

that case, the Court distinguished the handling of ineffectiveness arguments in

criminal matters – normally conducted through later post-conviction relief

petitions in the trial court – because parental termination cases are expedited to

ensure the child's stability. 192 N.J. at 310-11. So, the Court determined that

trial counsel ineffectiveness in parental termination cases should be raised in the

direct appeal rather than in later proceedings and provided a process – now

codified in Rule 2:9-1(c) – that permits the creation of a full factual exposition

prior to the appeal's disposition on its merits.4

4 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." Id. at 311. At times, as the Court noted, "the issue will be resolvable on the appeal record alone." Ibid. But, when the appellate court finds a "genuine issue of fact," the matter should then be remanded "for an accelerated hearing" and a decision by the trial judge, following which the appellate court must expeditiously review both the merits and the ineffectiveness arguments. Ibid. A-1399-18T3 10 This approach is not feasible when the direct appeal has already been

considered and decided. Moreover, most, if not all, questions about the

effectiveness of appellate counsel will not be appreciated until after the direct

appeal is decided. Only with the appointment of new appellate counsel after a

decision that has gone against the defendant – as here – is the defendant likely

to consider whether appellate counsel was ineffective or know how the alleged

deficiency prejudiced defendant's appeal. At that point, the urgency present in

the circumstances considered in B.R. is diminished because the appeal will have

already been decided.

In addition, we are not here considering the child's placement, only

defendant's inclusion in the Central Registry. Absent a showing that the

defendant has been and will continue to be irreparably harmed if her

ineffectiveness argument is decided in a less rapid fashion – for example, if the

parent's inclusion in the registry directly impacts employment – there is no

compelling need to consider the appellate counsel ineffectiveness argument with

the speed required when, like B.R., child permanency rests in the balance.

Realistically, it seems unlikely that in most cases a defendant will be able

to appreciate, let alone have the time or opportunity to argue to the appellate

court, that appellate counsel was ineffective. Rule 2:11-6(a) provides the only

A-1399-18T3 11 authorized avenue for seeking further relief from the appellate court post-

decision, and it limits the time to do so to ten days. That defendant was able to

make an application in such a short time frame – with the benefit of our

permission to accept her motion out of time – should not persuade us that this is

the only method for pursuing a claim of appellate counsel ineffectiveness. We

find no reason why other avenues for pursuing that claim should not be honored

when the issue cannot be reasonably formulated within the time to seek relief

under Rule 2:11-6(a). And, so, in approving of the methodology adopted by

defendant here, we see no reason why other defendants in the future may not

move in the trial court under Rule 4:50 for relief from the abuse or neglect order

because of appellate counsel ineffectiveness. 5

In considering what is presented here, we recognize that some aspects of

the appellate counsel ineffectiveness argument – particularly, the issues

concerning what was left out of the appendix – might ordinarily be resolvable

in our disposition of the motion. But defendant has raised other more nuanced

5 Our holding should not be viewed as giving such defendants wide latitude as to the time within which to assert the argument. Rule 4:50-2 requires that motions seeking relief from a judgment or order must be asserted within "a reasonable time." See Orner v. Liu, 419 N.J. Super. 431, 436-37 (App. Div. 2011) (emphasizing that motions governed by the outer limit of one year must still be filed within "a reasonable time" which may be far shorter than one year). A-1399-18T3 12 questions that warrant consideration of why appellate counsel did or didn't take

certain steps – including the failure to assert trial counsel ineffectiveness – that

cannot be fully appreciated through resort to the parties' motion papers. These

claims should be developed and illuminated at an evidentiary hearing, at which

time it may be necessary to take testimony from defendant's prior appellate

counsel and trial counsel as well, since defendant argues appellate counsel's

ineffectiveness in failing to assert trial counsel ineffectiveness. We remand for

an evidentiary hearing on the ineffectiveness arguments posed by defendant in

her present motion.

***

To summarize, we reject the argument in defendant's motion brief that we

failed to thoroughly consider the record or the parties' arguments and, therefore,

deny reconsideration of our prior decision. As for the second part of defendant's

motion, we agree that defendant should be permitted to pursue her present

ineffectiveness claims and, to fully develop those arguments, we remand the

matter to the trial court for an evidentiary hearing.

Defendant's motion is denied in part and granted in part. We remand the

matter to the trial court for further proceedings in conformity with this opinion.

We do not retain jurisdiction.

A-1399-18T3 13