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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3991-19
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY,
Plaintiff-Respondent,
v.
J..J.-H.,
Defendant-Appellant, and
J.H., F.J., and G.H.,
Defendants., __________________________
IN THE MATTER OF JO.H. and J.H., minors. __________________________
Submitted April 26, 2021 – Decided July 29, 2021
Before Judges Mayer and Susswein.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FN-04-0825-18. Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (Donna Arons, Assistant Attorney General, of counsel; Mary L. Harpster, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, attorney for minor Jo.H. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Margo E. K. Hirsch, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for minor J.H. (Meredith Alexis Pollock, Deputy Public Defender, of counsel; Damen J. Thiel, Designated Counsel, on the brief).
PER CURIAM
Defendant appeals from a June 7, 2019 Family Part order finding she
abused/neglected her ten-year-old great-nephew, J.H., 1 by administering
excessive corporal punishment, N.J.S.A. 9:6-8.21(c). Defendant does not
dispute she struck J.H. with a belt as punishment for the child's behavior at
school but challenges the trial court's finding that the corporal punishment was
excessive. She also contends she was denied counsel at critical stages of the
1 We use initials to protect the identity of the child. R. 1:38-3(d)(12).
2 A-3991-19 litigation and that the attorney who was eventually appointed to represent her
rendered ineffective assistance. After carefully reviewing the record in view of
the applicable legal principles, we reject defendant's contentions and affirm.
I.
On June 22, 2018, the Division of Child Protection and Permanency (the
Division) filed a verified complaint and order to show cause (OTSC) for custody
of J.H. and Jo.H. 2 The Division completed its investigation in August 2018. A
fact-finding hearing was scheduled for October 18, 2018 but was postponed for
nearly four months because defendant filled out a form requesting representation
by the Public Defender just before the hearing began. The fact-finding trial
occurred on February 25 and June 7, 2019. The court rendered a comprehensive
oral opinion, finding that defendant abused/neglected J.H. by inflicting
excessive corporal punishment. On April 15, 2020, the court conducted a virtual
hearing and issued an order terminating litigation, finding that the conditions
had been remediated.
We briefly recount the facts relevant to this appeal that were adduced at
the fact-finding hearing. J.H. is on the autism spectrum and receives treatment
2 Jo.H. is defendant's fourteen-year-old biological child.
3 A-3991-19 for Attention Deficit Hyperactivity Disorder. The child engages in certain self-
harming behaviors and attends a specialized after-school program.
In 2015, the child was removed from the custody of his biological mother
and was eventually placed in defendant's care. 3 On Monday, June 18, 2018 the
Division received a Child Protective Service referral from J.H.'s elementary
school. The child approached the school nurse with a bruise on his left arm and
told the nurse he was beaten with a belt the preceding Friday evening. J.H.
explained he was punished because he had not done his homework and because
a teacher had called defendant to report that he was misbehaving at school.
Division caseworker Isaac Hatten went to the school to investigate the
report. Hatten observed "long diagonal fresh marks" on J.H.'s upper and mid
back. Hatten also saw old marks on both arms, throughout the child's chest and
abdomen, and on both legs. When Hatten asked J.H. to indicate where he was
hit with the belt, the child pointed to the area with the fresh marks. Hatten took
photographs of J.H.'s back and arm.
Hatten next interviewed defendant, who admitted to spanking J.H. three
times with a belt. When asked about the June 15, 2018 incident, she reported
that she had tried to spank J.H.'s legs, but because he kept moving, she spanked
3 The child spent some time in foster care before being placed with defendant.
4 A-3991-19 him on the arm instead. Defendant denied spanking him on his back. Hatten
interviewed additional family members at the home as part of his thorough
investigation.
The next day, Hatten and his supervisor discussed the case and determined
that a Dodd 4 removal of J.H. and Jo.H was warranted based on the severity of
the bruises on J.H.'s back. Hatten prepared an investigation summary in which
he made the following findings:
Allegations that [defendant] physically abused [J.H.] are [s]ubstantiated. There is a preponderance of evidence that establishes that [J.H.] is an abused child as defined by definition. The aggravating factors taken into account are significant lasting physical and psychological impact on [J.H.]. [J.H.'s] safety required separation from [defendant]. Evidence suggests a pattern of abuse by [defendant] towards [J.H.].
Doctor Stephanie V. Lanese examined J.H. on June 27, 2018 and prepared
a report. She determined "based on this history and the photographs taken by
Child Protection and Permanency, the marks on their photographs are consistent
with being hit with a soft looped object, such as a belt."
4 A "Dodd removal" is an emergency removal of a child from the custody of a parent without a court order, as authorized by N.J.S.A. 9:6-8.29, a provision included within the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
5 A-3991-19 Caseworker Hatten and Dr. Lanese testified for the Division at the fact-
finding hearing. The court found both witnesses to be credible. The court
remarked that Hatten "was prepared to testify; he gave prompt answers; he was
intelligent; he had good tone and even demeanor; he was professional in his
presentation; I found his answers to be candid; his testimony was reasonable; he
provided good, clear explanation. I find him to be inherently believable."
As to Dr. Lanese, the court noted:
[She] was qualified, as the parties stipulated, as an expert in pediatric childcare. The [c]ourt finds her to be very credible. She was prepared to testify; she had great eye contact; she's intelligent; experienced; she had a very professional demeanor; she gave straight answers; she didn't embellish; she was reasonable; she was very candid in cross-examination . . . she gave good explanations; she was inherently believable.
The court also reviewed various reports and photographs. Based on the
evidence adduced by the Division, the court concluded the corporal punishment
administered by defendant was excessive, constituting abuse/neglect.
Defendant raises the following arguments for our consideration:
POINT I
THE RECORD DID NOT PROVIDE THE TRIAL COURT SUFFICIENT EVIDENCE ON WHICH TO BASE THE FINDINGS OF FACT OR CONCLUSIONS OF LAW MADE.
6 A-3991-19 POINT II
BECAUSE [DEFENDANT] WAS DENIED COUNSEL FOR CRITICAL PROCEEDINGS AND HER ASSIGNED COUNSEL FAILED TO FULFILL THE OBLIGATION TO PROVIDE FAITHFUL AND ROBUST PARTISAN REPRESENTATION, [DEFENDANT] WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED TO HER, THUS THE JUDGMENT MUST BE REVERSED (not raised below).
A. DENIAL OF COUNSEL FOR MONTHS OF LITIGATION.
B. COUNSEL, ONCE ASSIGNED, WAS INEFFECTIVE.
a. NOT OBJECTING TO EMBEDDED HEARSAY IN DOCUMENTS AND TESTIMONY OF WITNESSES.
b. NOT BEING PREPARED TO SUPPORT HIS OBJECTION TO HATTEN'S TESTIMONY ON WHAT, IF ANY, INSTRUMENT MAY HAVE CAUSED THE MARKS DEPICTED IN PHOTOGRAPHS IN EVIDENCE.
c. NOT OBJECTING TO DCPP'S CLOSING ARGUMENT AT TRIAL.
i. NOT OBJECTING TO PREJUDICIAL COMMENTS ON [DEFENDANT'S] ABSENCE, [DEFENDANT'S] NOT TESTIFYING AND
7 A-3991-19 [DEFENDANT'S] NOT PRESENTING EVIDENCE.
ii. NOT OBJECTING TO REFERENCES TO FACTS NOT IN EVIDENCE.
iii. NOT OBJECTING TO REFERENCES TO THINGS THAT NEVER HAPPENED.
d. DEFECTS IN THE DEFENSE CLOSING ARGUMENT AT TRIAL.
e. FAILURE TO ADDRESS INATTENTIVENESS TO THE TITLE 30 CARE AND SUPERVISION CASE REGARDING [Jo.Ha.].
f. NOT OBJECTING TO ERRORS IN THE TRIAL COURT'S OPINION.
g. CONCLUSION.
II.
We first address defendant's contention that the trial court's finding of
abuse/negligence was not supported by sufficient credible evidence. We begin
our analysis by acknowledging the legal principles governing this appeal.
We defer to the fact-findings by the Family Part because of its "superior
ability to gauge the credibility of the witnesses who testify before it and because
it possesses special expertise in matters related to the family." N.J. Div. of
8 A-3991-19 Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing Cesare v.
Cesare, 154 N.J. 394, 413 (1998)); see also N.J. Div. of Youth & Family Servs.
v. L.L., 201 N.J. 210, 226 (2010) (fact findings that are supported by “substantial
credible evidence in the record” are to be upheld); N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 279 (2007) (an appellate court defers to the trial
court's credibility determinations, evaluation of the underlying facts, and
inferences drawn therefrom unless they are "so wide of the mark that a mistake
must have been made.") (quoting C.B. Snyder, Inc. v. BMW of N. Am., Inc.,
233 N.J. Super. 65, 69 (App. Div. 1989)). Questions of law, in contrast, are
reviewed de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal
consequences that flow from established facts are not entitled to any special
deference.").
To establish abuse or neglect, the Division must show by a preponderance
of the "competent, material and relevant evidence" that the child is "abused or
neglected" as defined in N.J.S.A. 9:6-8.21. N.J. Div. of Youth & Family Servs.
v. J.Y., 352 N.J. Super. 242, 260–65 (App. Div. 2002). Under this statutory
framework, an abused or neglected child is defined as
a child less than 18 years of age whose . . . physical, mental, or emotional condition has been impaired or is
9 A-3991-19 in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment . . . .
[N.J.S.A. 9:6-8.21(c)(4)(b) (emphasis added).]
The phrase "excessive corporal punishment" is not statutorily defined and
as a result, abuse and neglect cases arising on this ground require a fact-sensitive
analysis. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 33 (2011);
see also N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 145
(App. Div. 2015) (stating that excessive corporal punishment cases are
"determined on a case-by-case basis"). The law of this State recognizes "'a
parent may inflict moderate correction such as is reasonable under the
circumstances of a case.'" N.J. Div. of Youth & Family Servs. v. K.A., 413 N.J.
Super. 504, 510 (App. Div. 2010) (quoting State v. T.C., 347 N.J. Super. 219,
239–40 (App. Div. 2002)). However, when punishment exceeds "what is proper
or reasonable," it is deemed excessive. Id. at 511. This determination must
focus on the harm caused to the child, not the parent's intent. N.J. Div. of Youth
& Family Servs. v. M.C. III, 201 N.J. 328, 344 (2010); K.A., 413 N.J. Super. at
511.
10 A-3991-19 In determining whether corporal punishment is proper or reasonable,
careful consideration must be given to the "nature and extent of the injuries" and
the "instrumentalities used to inflict them." S.H., 439 N.J. Super. at 146. Courts
also will consider "(1) the reasons underlying [the defendant's] action; (2) the
isolation of the incident; and (3) the trying circumstances under which [the
defendant] was undergoing . . . ." K.A., 413 N.J. Super. at 512. Age is an
additional consideration: "one ought not assume that what may be 'excessive'
corporal punishment for a younger child must also constitute unreasonable
infliction of harm, or excessive corporal punishment in another setting involving
an older child." P.W.R., 205 N.J. at 33. Finally, courts will consider whether
the defendant recognized his or her error, was remorseful, and was open to
receiving help. See S.H., 439 N.J. Super. at 147–48.
We gain further insight into the boundaries of proper and reasonable
corporal punishment by closely examining the facts and circumstances arising
in the foregoing legal precedents. In K.A., the defendant mother K.A. got into
a homework-related altercation with her then-eight-year-old daughter A.A. 413
N.J. Super. at 505–06. A.A. was diagnosed with a pervasive developmental
disorder and attention deficit disorder. Id. at 506. K.A. sent A.A. to her room
for time out, but A.A. refused to stay inside, defying K.A.'s specific instructions.
11 A-3991-19 Ibid. K.A. struck A.A. on the shoulder four or five times with a closed fist
before sending her back to her room. Ibid. Round bruises resembling paw prints
appeared on A.A.'s shoulder and were noticed by a classroom aide. Ibid. The
Division made a final determination to substantiate allegations of abuse or
neglect against K.A. Id. at 505.
We reversed the finding of neglect/abuse, noting that K.A. had a
"psychologically disruptive child, unable or unwilling to follow verbal
instructions or adhere to passive means of discipline such as time-out." Id. at
512. We noted K.A. had no support from a spouse or other family members to
raise a developmentally challenged child—she was overwhelmed and acted in
frustration. Ibid. She did not break any skin and A.A. did not require medical
intervention. Ibid. We also noted "K.A. accepted full responsibility for her
actions, was contrite, and complied with Division-sponsored counseling." Ibid.
In C.H., the parent struck her then-five-year-old child with a paddle in
multiple locations, leaving behind three to four-inch red demarcations on her
face. N.J. Div. of Youth & Family Servs. v. C.H., 416 N.J. Super. 414, 416
(App. Div. 2010). We sustained the finding of excessive corporal punishment,
determining it was not an isolated incident, as the parent admitted to
administering corporal punishment to the child when she was three years old.
12 A-3991-19 Id. at 417. Furthermore, the parent did not show remorse and did not participate
in counseling. Id. at 416–17.
In P.W.R., the Supreme Court reversed our affirmance of the trial court's
finding of abuse and neglect. 205 N.J. at 40. The Division had previously
determined that allegation of physical abuse was unfounded, though the
allegation of neglect was substantiated. Id. at 27. The parent in that case
occasionally slapped the sixteen-year-old daughter in the face as discipline. Id.
at 23–24. The slaps did not leave behind marks. Id. at 36. The Court held:
[a] slap of the face of a teenager as a form of discipline—with no resulting bruising or marks—does not constitute 'excessive corporal punishment' within the meaning of N.JS.A. 9:6-8.21(c)(4)(b). That is not to suggest approval of such behavior. But, by qualifying the prohibition with the term, 'excessive,' the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. [Id. at 36.]
K.A., C.H., and P.W.R. underscore the highly-fact-sensitive analysis
required in child abuse and neglect cases and offer benchmarks to determine
whether a parent or legal guardian has crossed the line from proper and
reasonable discipline into the realm of excessive corporal punishment.
Applying these guiding principles to the present case, we conclude the evidence
13 A-3991-19 adduced at the factfinding hearing supports the Family Part's finding of
excessive corporal punishment.
The June 15, 2018 incident was not an impulsive, spontaneous reaction as
in K.A.. Rather, defendant acknowledged she had received information
regarding J.H.'s poor behavior from the school in the afternoon. She waited for
him to return home from the afterschool program and prepare for bed before
striking him with the belt. The corporal punishment was planned and not done
in spontaneous frustration based on the child's misbehavior committed
immediately before corporal punishment was administered.
Second, this was not an isolated incident. Defendant admitted that she
"spanked" J.H. three times with his belt. Other family members corroborated
that defendant employed corporal punishment on multiple occasions.
The trial court, moreover, recognized and accounted for other relevant
considerations. The court, for example, considered J.H.'s age as in P.W.R. The
court also acknowledged J.H.'s behavioral problems and the challenges they
posed to defendant to maintain discipline and to discourage misbehavior.
Importantly, the court also accredited the expert testimony of Dr. Lanese,
and carefully examined the photographs depicting the wounds that had recently
been inflicted. Looking at the photographs in evidence, the judge remarked the
14 A-3991-19 child "got whipped." Those marks, considered in context with other relevant
considerations, support the conclusion that the belt strikes were not proper and
reasonable in the circumstances. K.A., 413 N.J. Super. at 511–12.
We add that the court did not focus on defendant's intentions, but rather
properly focused on the harm to the child. See M.C. III, 201 N.J. at 344. The
trial court remarked,
There's no question that [defendant] used a soft object, such as a belt, which [J.H.] indicated was what he was hit with and made contact with [J.H.'s] body. Whether she intended to hit his legs, but made contact with his back, is of no moment to the [c]ourt. The fact that she struck him multiple times, leaving the markings on his back, that they hurt him, and leaving the markings on his arms, those are, to the [c]ourt, uncontroverted.
Based on all of the evidence adduced at the hearing, the court concluded,
The [c]ourt finds that this type of punishment is excessive corporal punishment, and the [c]ourt finds that the Division has met its burden of proof by a preponderance of the competent, relevant material evidence. As indicated in other case law, the [c]ourt need not wait till the child is actually harmed for there to be abuse and neglect
In this case, I'm not prepared yet to find that there's been a psychological harm caused as a result of the corporal punishment inflicted. There's no testimony there was continued punishment which might lend itself to the potential of psychological or physical harm to [J.H.]. But I am satisfied that this is beyond mere
15 A-3991-19 acceptable corporal punishment. This punishment inflicted upon [J.H.] meets squarely the definition of excessive corporal punishment and, for that, the [c]ourt will enter a Title 9 finding as to [defendant].
We agree.
III.
We next address defendant's contention she was denied counsel at critical
proceedings. It is well-settled a parent has a fundamental and constitutional
right to effective assistance of counsel in Title Nine cases. N.J. Div. of Youth
& Family Servs. v. R.D., 207 N.J. 88, 113 (2011) (noting that "children and
indigent parents in . . . Title Nine . . . proceedings are entitled to representation
by the Office of the Public Defender."); see also N.J. Div. of Child Prot. &
Permanency v. L.O., 460 N.J. Super. 1, 3 (App. Div. 2019) ("Because the
potential consequences of [child abuse or neglect] proceedings are of significant
magnitude, we agree that, in this setting, counsel should be made available for
indigent parents and guardians both at the administrative level and in any appeal
of right to this court.").
N.J.S.A. 9:6-8.43(a) requires a Family Part judge to advise a defendant in
an abuse or neglect proceeding of the right to counsel and, if the defendant is
indigent, the ability to apply for representation through the Office of the Public
Defender. To qualify for Public Defender representation, a defendant must fill
16 A-3991-19 out a "Form 5A." N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super.
428, 437 (App. Div. 2013).
Defendant claims on appeal that "[t]hrough the eve of a fact-finding trial,
[defendant] had no attorney and lacked the expertise or knowledge necessary to
defend herself." Defendant further asserts, "through no fault of her own, [she]
had no ability to investigate or present a defense." These claims are contradicted
by the record. Defendant was informed of her right to counsel on at least two
separate occasions. On June 28, 2018, the court convened an OTSC hearing on
the issue of temporary custody. Defendant and two codefendants all appeared
without counsel. The court noted that court personnel had asked them if they
wanted to fill out a Form 5A and the court confirmed on the record that they
each intended to represent themselves at the OTSC hearing.
The fact-finding hearing originally was scheduled for October 18, 2018.
Defendant and codefendants once again appeared without counsel. At the start
of the hearing, the court reminded defendant she had the right to an attorney,
and informed her that
[a]n attorney does not represent you unless that attorney sends a Letter of Representation to the Court. If you cannot afford an attorney, you can fill out a form and the [c]ourt will determine whether or not you're qualified for the appointment of a [c]ourt-appointed attorney to represent you in the matters, or you can
17 A-3991-19 proceed on your own, which is referred to as pro se, without the aid of an attorney.
We're going to proceed in a limited capacity today, but if at any time during the pendency of this litigation, you determine you'd want to retain an attorney or have a [c]ourt-appointed attorney for you, just let the [c]ourt know. Okay?
The judge asked defendant whether she understood what he had just
explained, and defendant replied "Yes." The Deputy Attorney General
representing the Division interjected, advising the court, "I think that
[defendant] filled a [Form] 5A out today." Defendant confirmed that she had
submitted the form. The court responded, "Okay. So what we're going to do
with respect to your matter, we're going to postpone that aspect so you can
consult with your attorney on this matter. Okay?"
The matter was adjourned for four months to allow defendant's court-
appointed attorney ample time to prepare. In these circumstances, we reject
defendant's contention that she was deprived of the right to appointed counsel.
IV.
Finally, we turn to defendant's contention she received ineffective
assistance from counsel who was appointed to represent her at the factfinding
hearing. The Appellate Division has adopted the Strickland/Fritz standard for
ineffective-assistance-of-counsel in criminal matters, termination of parental
18 A-3991-19 rights cases, and for findings of abuse and neglect. N.J. Div. of Youth & Family
Servs. v. M.D., 417 N.J. Super. 583, 613–14 (App. Div. 2011); N.J. Div. of
Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 643 (App. Div. 2010). We
thus apply the Strickland/Fritz two-pronged test to defendant's contention she
received ineffective assistance at the factfinding hearing.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed by the Sixth Amendment." 466 U.S. at 687. Reviewing courts
indulge in a "strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance." Id. at 689. The fact that a trial
strategy fails to obtain for a defendant the optimal outcome is insufficient to
show that counsel was ineffective. State v. DiFrisco, 174 N.J. 195, 220 (2002)
(citing State v. Bey, 161 N.J. 233, 251 (1999)).
The second prong of the Strickland test requires the defendant to show
"that counsel's errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable." Strickland, 466 U.S. at 687. Put differently,
counsel's errors must create a "reasonable probability" that the outcome of the
proceedings would have been different if counsel had not made the errors. Id.
at 694.
19 A-3991-19 Defendant contends her trial counsel presented "little defense to the claim
of excessive corporal punishment in the first place." We believe that
characterization does not properly describe the situation at hand; counsel's
performance does not constitute deficient representation but rather reflects the
strength of the Division's case and the fact that most of the relevant
circumstances are incontrovertible. Defendant's more specific claims of
ineffective assistance lack sufficient merit to warrant all but brief discussion in
this opinion. R. 2:11-3(e)(1)(E).
Defendant argues counsel should have objected to embedded hearsay in
documents and the testimony of Dr. Lanese and Division caseworker Hatten.
The record reflects the documentary evidence considered by the trial court was
properly admitted. Each witness provided the foundation for the records they
relied upon. See In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App.
Div. 1969) ("Reports . . . prepared by the qualified personnel of a state agency
charged with the responsibility for overseeing the welfare of children in the
State, supply a reasonably high degree of reliability as to the accuracy of the
facts contained therein."). Rule 5:12-4(d) permits the Division to "submit into
evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel
or professional consultants." The Division's reports fall under the business
20 A-3991-19 records exception found in N.J.R.E. 803(c)(6). See M.C. III., 201 N.J. at 347.
We add the dangers of hearsay are mitigated at a bench trial. N.J. Div. of Child
Prot. & Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016).
Furthermore, Family Part judges are presumed to be capable of relying on
evidence for its permissible purposes and are capable of discounting
inadmissible embedded hearsay. Ibid.
Defendant contends her trial counsel was ineffective for "[n]ot being
prepared to support his objection to Hatten's testimony on what, if any,
instrument may have caused the marks depicted in photographs in evidence."
But even accepting for the sake of argument the Division caseworker lacked
qualification to opine on what instrument caused the markings depicted in the
photographs of the child's wounds, the outcome of the hearing would not have
been different had an objection been made and sustained. The trial court relied
not only on Dr. Lanese's medical opinion as to the instrument employed but also
defendant's admission to the Division that she used a belt to administer corporal
punishment on this occasion.
Defendant contends counsel should have objected to what she
characterizes as prejudicial comments made by the Deputy Attorney General in
summation. On appeal, defendant argues her counsel should have objected to
21 A-3991-19 remarks concerning defendant's absence from the second day of the fact-finding
trial and her decision not to testify or present evidence. We conclude these
comments had no effect on the judge sitting as the trier of fact.
Relatedly, defendant claims trial counsel rendered ineffective assistance
by "[n]ot objecting to references to facts not in evidence" or to "things that never
happened." By way of example, defendant contends the Division in its
summation improperly argued the child "could have easily been hit in the face,
in the eye, in the mouth.'" We see nothing inappropriate in commenting on the
potential risk of physical harm associated with repeatedly striking a child with
a belt, especially given defendant's acknowledgment that J.H. was resisting. Nor
was it improper for the Division to argue in summation that defendant "laid in
wait" for J.H. to come home. As we have noted, the fact the corporal punishment
was planned—rather than administered in spontaneous frustration—was a
relevant circumstance for the court to consider. See K.A., 413 N.J. Super. at
512.
Finally, we address defendant's contention her trial counsel's closing
argument was deficient because it "spanned less than a page of transcript." We
reject the notion that brevity suggests professional incompetence. The maxim
"less is more" is often applicable to the courtroom setting. Moreover, in
22 A-3991-19 applying the Strickland/Fritz test we afford substantial deference to such
strategic decisions. Cf. Jones v. Barnes, 463 U.S. 745, 751–52 (1983) (noting
that the hallmark of effective appellate advocacy is the ability to "winnow[] out
weaker arguments and focus[] on one central issue if possible, or at most, on a
few key issues"). We note in closing that defendant fails to suggest additional
arguments counsel might have mustered in summation that would have turned
the tide of the evidence of excessive corporal punishment.
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
23 A-3991-19