New Jersey Criminal Defense Attorney Blog

State v. Andre Lane, unpublished opinion, App. Div. Docket No. A-3738-08T4 (June 17, 2010) - Case remanded for reconsideration of defendant's motion to withdraw his plea.

Continue reading "NJ Defendant Should Have Been Allowed to Withdraw Guilty Plea, Says App DIv" »

DYFS v. C.W./Matter of A.R., H.W., and D.W., Jr., unpublished opinion, App. Div. Docket No. A-5074-08T4 (June 8, 2010) - Termination of parental rights reversed, case remanded for further proceedings.

Continue reading "DYFS Approach Called "Troubling" by NJ Appeals Court" »

DYFS v. E.S. and F.D./Matter of E.P.S., unpublished opinion, App. Div. Docket No. 0547-09T4 (June 10, 2010) -

Continue reading "NJ Trial Judge Reversed for Depriving Parent of Counsel in DYFS Case" »

DYFS v. D.R. and C.F./Matter of E.R., unpublished opinion, App. Div. Docket No. A-4239-08T4 (June 2, 2010) - Order terminating D.R.'s parental rights reversed.

Continue reading "Order Terminating Parental Rights Reversed" »

DYFS v. J.L./Matter of A.L., unpublished opinion, App. Div. Docket No. A-5503-08T3 (May 12, 2010) - "In this appeal of a judgment terminating parental rights, we vacate and remand because the evidence failed to dispel uncertainties about the foster parents' willingness to adopt and because the judge mistakenly rejected, as a matter of law, the opinion of defendant's expert that the status quo was in the child's better interest than termination....

Having closely examined the record in light of the arguments posed, we find no reason to question the judge's findings on the first two prongs and that part of the third prong that required proof of the Division's reasonable efforts to ameliorate the reasons for the child's placement outside the home....

Because the judge felt bound to limit his findings to that which would provide a permanent solution, even at the potential cost of the child's best interests, we must reject the judge's determination on the fourth prong.... We also conclude that the judgment cannot rest on the judge's findings on the fourth prong because the evidence regarding adoption was too inessential to meet the requirement that the prong be proven by clear and convincing evidence.

We discern from the judge's decision that he concluded termination would not do more harm than good because he expected that the aunt and uncle would adopt Anna. The record, however, reveals uncertainty about the commitment of the aunt and uncle to adopt.... [A]dditional proceedings should at least include testimony from the aunt and uncle, as well as any other witnesses who might possess relevant knowledge on the question of adoption and, if the alleged commitment of the aunt and uncle to adopt is conditional, whether those conditions can or will be met.

The judge should also permit the presentation of other evidence that may provide an understanding of what has occurred in the interim with Anna, her current relationship with her foster parents, and her current relationship with defendant, and whether or to what extent defendant has continued to make progress."

DYFS v. R.D./Matter of K.D. and R.D., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 61 (April 22, 2010) - Termination of parental rights affirmed. "Defendant contends the court erred by adopting the findings in the Title 9 action that he abused or neglected his children and incorporating them against him in the guardianship trial. He argues that the court misapplied the doctrine of collateral estoppel to bar relitigation of the issue of abuse under the best interests of the child standard; ignored the exceptions to the general rule; and misinterpreted case law requiring separate litigation where proceedings required different standards of proof....

While DYFS has the burden of establishing abuse or neglect in a fact-finding hearing by a preponderance of the evidence, N.J.S.A. 9:6-8.46(b)(1), the burden of proof in a Title 30 termination case is the clear and convincing evidence standard.... When the underlying finding of abuse, however, is made by clear and convincing evidence and not merely by a preponderance of the evidence, it may support a termination of parental rights....

[T]he court in the abuse or neglect proceeding here applied the higher standard of clear and convincing evidence to determine that defendant sexually abused S.D. and that this behavior placed the physical, mental, and emotional condition of all the children in imminent danger of being impaired.... The fact finding in the abuse or neglect proceeding satisfied the first prong of the best interests standard in the termination proceeding.

All of the requirements for collateral estoppel applied to bar relitigation: the issue of sexual abuse and its impact on the children was in fact litigated in the Title 9 action; defendant could have appealed the prior finding after Judge Johnson entered the disposition order; the determination of this issue was essential to the entry of judgment in the Title 9 action; and the parties essentially were identical....

Moreover, defendant does not argue that he lacked a full and fair opportunity to litigate this issue in the prior action.... We are satisfied that Judge Fineman properly employed collateral estoppel by adopting Judge Johnson's finding by clear and convincing evidence that defendant committed sexual abuse of S.D. when she was in his care and the other children were in the household."

DYFS v. N.S. and R.B./Matter if K.A.N., J.B., and K.B., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 54 (April 14, 2010) - Finding of abuse and neglect affirmed. "[N.S. asks] this court to consider ... whether [her] right to counsel of her choice was violated by the denial of her request to substitute criminal counsel as her attorney in the Title Nine proceeding....

We reject N.S.'s predicate argument that her Sixth Amendment right to counsel was implicated when the Family Part denied Lawrence's request for substitution. The Sixth Amendment safeguards an accused's right to counsel to defend a criminal prosecution.... It is not applicable in this civil proceeding. When faced with the temporary loss of parental rights, a parent's right to have legal representation is assured by the due process guarantee of Article I, paragraph 1 of the New Jersey Constitution and by N.J.S.A. 9:6-8.45....

Here, the concern in allowing dual representation by counsel centers on the disclosure of and access to DYFS files, released under Rule 5:12-3, to which the attorney representing a defendant is entitled. Criminal counsel would gain access to records that, by statute, are otherwise confidential due to the State's compelling interest in protecting its child abuse information.... Although our review of Title Nine, federal legislation, and these authorities, counsels against unfettered access to the Division's file outside the parameters of the Title Nine litigation, even for purposes of criminal defense, ... we cannot agree with the wholesale rejection of all such requests....

We conclude these concerns should be addressed by the court in reviewing dual representation requests that might otherwise defeat the statutory confidentiality requirements. For example, after balancing the competing concerns posed, the court may allow dual representation subject to a protective order, which preserves the confidentiality of the source prompting the Division's protective services litigation....

We believe these procedures safeguard the goals of the State to uncover and treat abuse and neglect, and to protect victim children, without unnecessarily sacrificing a parent's right to exercise a desired choice of legal counsel.... Counsel who desire to provide dual representation to a Title Nine litigant, who is also a criminal defendant, have an affirmative obligation to disclose this fact to the court and other counsel. All parties, including the Division and the Law Guardian, must be afforded notice and an opportunity to review the request and address any perceived conflicts or any other overriding confidentiality concerns to be considered by the court in its review."

DYFS v. N.J. and D.R./Matter of D.J., N.D.R., and N.J., ? N.J. Super ?, 2010 N.J. Super. LEXIS ? (March 30, 2010) - "In this parental termination case, the Law Guardian for three children appeals from the Family Part's denial of her request to compel the prospective adoptive parents to continue visitation among the siblings as a function both of the court's parens patriae power and the children's constitutional right to associate with their siblings post-adoption. We affirm....

[T]he interests at stake here are not the rights of the natural parents whose rights have already been terminated, but rather the rights of the adoptive parents, who step into the shoes of the natural parents.... It is the adoptive parents' rights that may be infringed in the future, and therefore, it is their rights as parents that must be considered.... [C]oncerns over loss of parental autonomy and disruption to the new adoptive family, as well as their consequent chilling effect on adoptions, are ... implicated in sibling visitation post-adoption.

The Law Guardian offers no compelling reason why the Legislature's rejection of open adoptions is not as pertinent to the issue of sibling visitation as it is to grandparent visitation or why the same chilling effect on the State's effort to recruit adoptive parents ... would not be extant were sibling visitation forced upon non-relative adoptive parents. It seems to us that the heavy toll on New Jersey's "strong public policy in favor of permanency" for children in the foster care system, [citation omitted], would be the same.... [T]he Family Part was ... correct in withholding any residual power to compel sibling visitation because of the absence in this record of clear and convincing evidence of 'exceptional circumstances.'" (Randi Mandelbaum, Designated Counsel, Law Guardian)

In this recent NJ DYFS case, the New Jersey Supreme Court gives some guidance to when documents should be admitted under the business record exception to the hearsay rule.

DYFS v. M.C., III/ Matter of M.C. IV and N.C., ? N.J. ?, 2010 N.J. LEXIS ? (March 31, 2010) - Order finding abuse and neglect affirmed. "Our disposition of this case makes it unnecessary to decide whether various exhibits that were admitted would have been admissible in evidence if a proper objection had been made.

Nevertheless, this appeal highlights the need to give some guidance for future cases. We take this opportunity to give some general guidance for the admission of documentary evidence in abuse and neglect cases.... [The] key to the admissibility of documents ... is whether the evidence was created 'in the regular course of business of any hospital or any other public or private institution or agency.' ...

Although the phrase 'in the regular course of business' is not defined in Title 9, our courts have suggested that the phrase should be interpreted as identical to the meaning of that phrase in the business-records exception to the hearsay rule....

Under the business records exception to the hearsay rule, a party seeking to admit a hearsay statement pursuant to this rule must demonstrate that 'the writing [was] made in the regular course of business,' the writing was 'prepared within a short time of the act, condition or event being described,' and 'the source of
the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence.' State v. Matulewicz, 101 N.J. 27, 29 (1985) (citation omitted)." (James A. Louis, D.P.D., Law Guardian; Beatrix W. Shear, D.P.D., for M.C., III)

Stengart v. Loving Care, Inc., ? N.J. ?, 2010 N.J. LEXIS 241 (March 30, 2010) -- The New Jersey Supreme Court held this week that an employee may reasonably expect that e-mail communications with her lawyer through her personal, password-protected, Web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege.

DYFS v. M.C., III/ Matter of M.C. IV and N.C., ? N.J. ?, 2010 N.J. LEXIS (March 31, 2010) - Order finding abuse and neglect affirmed by the NJ Supreme Court.

The Appellate Division found plain error in the admission of documentary evidence and the use of hearsay contained within the documents.... However, the NJ Supreme Court found that consistent with the doctrine of invited error, on appeal, the father may not protest the admission of the documents after he agreed to their admission at trial....

The record is clear that defendant consented to the admission of the relevant documents. Indeed, the one document that defendant objected to, P-1, was not admitted into evidence. Importantly, by consenting to the admission of the documents, defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides. That is, if defense counsel had objected to the Screening Summary and other documents, and the trial court agreed with those objections, the Division could have taken steps to satisfy any evidentiary requirements needed for the admission of the documents or presented a witness or witnesses in place of the documents....

Under those circumstances, we hold that defendant is barred by the doctrine of invited error from contesting for the first time on appeal the admission of the various documents. Thus, we find no reversible error in the trial court's consideration of those documents in reaching its conclusions." See also EVIDENCE. (James A. Louis, D.P.D., Law Guardian; Beatrix W. Shear, D.P.D., for M.C., III)
http://www.judiciary.state.nj.us/opinions/supreme/A9608DYFSvMCIII.pdf

DYFS v. R.M./In the Matter of I.L., C.L., and I.T., ? N.J. Super. ?, 2010 N.J. Super. LEXIS 19 (February 5, 2010) - "Defendant R.M. appeals the order of the Family Part denying her application for the entry of a 'suspended judgment' as the disposition of the complaint filed by plaintiff New Jersey Division of Youth and Family Services (Division) charging her with child neglect as defined by N.J.S.A. 9:6-8.21.

This appeal requires us to determine (1) the criteria for application of the 'suspended judgment' provision of N.J.S.A. 9:6-8.51(a)(1); and (2) whether successful completion of a period of suspended judgment necessarily leads to the removal of the underlying finding of abuse or neglect from the central registry maintained by the Division pursuant to N.J.S.A. 9:6-8.11....

In summary, we conclude that the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part judge has held a dispositional hearing and is not prepared to enter an order returning the child to the parent or placing the child with the Division, but instead proposes to give the parent an opportunity to maintain the family unit based upon adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a).

We also conclude that successful completion of a period of suspended judgment does not result in expungement of the underlying finding of abuse or neglect. [W]e find no basis to conclude that the Legislature intended the suspended judgment provision of N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of PTI in abuse and neglect cases.... Finally, we affirm the order on appeal, based upon our conclusion that a suspended judgment was not a viable option at the time the order was entered and that, in any event, the Family Part judge did not abuse his discretion...." (Carol Willner, Designated Counsel,for R.M.; Amy Vasquez, Designated Counsel, Law Guardian)
http://www.judiciary.state.nj.us/opinions/a2081-08.pdf

DYFS v. L.L./In the Matter of T.L., ? N.J. ?, 2010 N.J. LEXIS 149 (February 24, 2010) - Denial of motion to vacate kinship legal guardianship affirmed. "We hold that pursuant to N.J.S.A. 3B:12A-6(f), prior to the vacation of a kinship legal guardianship judgment, the court must find by clear and convincing evidence both that the parent has overcome the incapacity or inability to care for the child that led to the original guardianship proceedings, and that termination of kinship legal guardianship is in the best interest of the child. We additionally hold that the party seeking to terminate the kinship legal guardianship has the burden to prove by clear and convincing evidence each of those two criteria." (T. Gary Mitchell, D.P.D., for L.L.; Melissa R. Vance, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/supreme/A6808DYFSvLL.pdf

DYFS v. M.D.C. and R.C./In the Matter of B.M.C., unpublished opinion, App. Div. Docket No. A-5579 and 5655-07T4 (December 9, 2009) - Order terminating parental rights reversed, case remanded. The trial court's decision contained insufficient and inaccurate factual findings with respect to the four prongs of N.J.S.A. 30:4C-15.1(a).

In particular, NJ DYFS failed to obtain a bonding assessment with the child's foster parents before concluding that termination would not do more harm than good. The absence of any evidence that DYFS made any effort to investigate and assist defendants in addressing whatever problems caused them to lose their housing negated the finding that it made reasonable efforts to provide services to defendants. (Michael C. Wrobleski, Designated Counsel, for M.D.C.; Durrell Wachtler Ciccia, Designated Counsel, for R.C.; Jeffrey R. Jablonski, A.D.P.D., Law Guardian)
http://www.judiciary.state.nj.us/opinions/a5579-07a5655-07.pdf

New Jersey has some of the strictest gun control laws in the country. However, under the United States Constitution, you have the right to own a firearm, plain and simple. The process of obtaining a permit to own or possess a firearm or handgun in New Jersey can be cumbersome. Moreover, local police chiefs, who are responsible for processing such permit applications, frequently violate New Jersey law in denying these applications. If you have been denied a permit to purchase or possess a firearm/handgun, contact an attorney experienced in such mattes for a free consultation.

Our Legislature has expressed the baseline presumption that all New Jersey residents are eligible to apply for and receive a New Jersey FPIC unless they meet one of the specifically enumerated disqualifying criteria. In re Boyadjian, 362 N.J. Super. 463 (App. Div.) cert. denied, 178 N.J. 250 (2003). The existence of good cause for denial of a resident's application for a Firearm Permit Identification Card (FPIC) and Permit to Purchase a Handgun (PPH) must represent a burden to be carried by the local Police Chief, and to be established by a fair preponderance of the evidence. Weston v. State, 60 N.J. 36, 46 (N.J. 1972). I

n evaluating the facts presented by the Chief, and the reasons given for rejection of the application, the reviewing court should give appropriate consideration to the Chief's investigative experience and to any expertise he appears to have developed in administering the statute.
The governing statute, N.J.S.A. 2C:58-3 provides, in pertinent part:
No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. No handgun purchase permit or firearms purchaser identification card shall be issued:

(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence ... whether or not armed with or possessing a weapon at the time of such offense;

(2) To any drug dependent person.... [T]o any person who is confined for a mental disorder to a hospital, mental institution or sanitarium, or to any person who is presently an habitual drunkard;

3) To any person who suffers from a physical defect or disease which would make it unsafe for him to handle firearms, to any person who has ever been confined for a mental disorder, or to any alcoholic unless any of the foregoing persons produces a certificate of a medical doctor or psychiatrist licensed in New Jersey, or other satisfactory proof, that he is no longer suffering from that particular disability in such a manner that would interfere with or handicap him in the handling of firearms...

***

(5) To any person where the issuance would not be in the interest of the public health, safety or welfare....

The broad, catchall provision in section (5) was designed to prevent firearms from coming into the hands of persons likely to pose a danger to the public. Hoffman v. Union County Prosecutor, 240 N.J. Super. 206, 211 (Law Div. 1990). This portion of the statute allows courts to review criminal charges and complaints that were ultimately dismissed or otherwise similarly disposed of, but the State bears the burden of proving that the Appellant poses a continued public or personal danger. In re Osworth, 365 N.J. Super. 72, 77-79 (App. Div. 2003). The sole issue in fitness is an applicant's current qualification to possess a firearm; the past may only be inquired about to the extent that it reasonably relates to an applicant's present fitness. Application of Marvin, 53 N.J. 147, 156-57 (1969) citing Schware v. Board of Bar Examiners, 353 U.S. 232, 24447, 77 S. Ct. 752, 1 L. Ed. 2d 796, 804-06 (1957).
Where error in factfinding of a judge is alleged, the scope of appellate review is limited. State v. Locurto, 157 N.J. 463, 470-71 (1999). The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. Ibid. The court gives "due regard" to the ability of the factfinder to judge credibility. Ibid. However, a factfinding court cannot base its decision upon speculation. State v. One Marlin Rifle, 319 N.J. Super. 359, 371 (App. Div. 1999).