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NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

A.L.,

Defendant-Appellant,

and

S.B.,

Defendant.

______________________________

IN THE MATTER OF Au.L., 

a Minor.

______________________________

Submitted December 9, 2019 – Decided

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.

APPROVED FOR PUBLICATION

January 10, 2020

APPELLATE DIVISION

January 10, 2020
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A-1399-18T3

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.
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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.
4

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In the motion now before us, defendant – through new appellate counsel1

– 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.
5

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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 DuffGordon, 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 
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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. StateOperated 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); EQRLPC 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 
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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,2the 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").
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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 
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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 
10 A-1399-18T3

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.
11 A-1399-18T3

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 
12 A-1399-18T3

authorized avenue for seeking further relief from the appellate court postdecision, 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).
13 A-1399-18T3

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.