DCPP VS. J.J.-H., J.H., F.J., AND G.H., IN THE MATTER OF JO.H. AND J.H. (FN-04-0825-18, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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