October 9, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.K.A.,*FN1 A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, FG-16-46-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Fuentes and Chambers.
In this termination of parental rights case, defendant L.A. appeals the decision of the court below, terminating her parental rights as the mother of D.K.A. Since the decision to terminate her parental rights is well supported by the record below and is in the best interests of D.K.A., we affirm.
Plaintiff, the New Jersey Division of Youth and Family Services ("the Division") commenced supervision over L.A. and her children after L.A. contacted the Division in 1999, because she did not have sufficient income to care for her daughter D.K.A. and a younger son. (The son is not part of this appeal.) Various services were provided to L.A., and the Division established supervision over the family. Later that year, the Division substantiated an allegation that L.A. had struck D.K.A. with a belt on the face, although L.A. denied this finding.
L.A. attended a parenting class which she completed, and she went to counseling.
On November 2, 2000, Dr. Malini Bhatia conducted a psychiatric evaluation of L.A. She was diagnosed with bipolar disorder and was prescribed medication. The Division closed its case on June 28, 2001.
In July 2002, L.A. experienced a psychiatric episode, in which she heard voices, and she was hospitalized. The Division filed a verified complaint and sought an order to show cause, seeking custody, care and supervision of L.A.'s children. By order of July 25, 2002, custody of the children was granted to the Division on the basis that L.A. was unable to care for her children due to her mental illness. The children were placed with a family friend. The family friend reported receiving a call from L.A., who threatened to take the children. Despite being advised by a Division caseworker not to remove the children, L.A. did so, but the children were returned to the family friend by the police. On August 28, 2002, the return date of the order to show cause, physical custody of the children was ordered to remain with the Division, L.A. was ordered to undergo a psychological evaluation and to attend counseling, and provision was made for supervised visitation. This was done. At the recommendation of Dr. Raymond Ransom, a psychiatrist, the children were returned to L.A. on November 18, 2002, and the case was dismissed.
On February 13, 2004, the Division received a referral from the children's school that L.A. had assaulted a teacher and that L.A. admitted to using marijuana. While no child neglect was found, the Division kept the case open for supervision of the children, because L.A. had a history of mental illness and was not taking her psychiatric medication, had tested positive for marijuana, and had refused recommended outpatient drug treatment. Later that month, D.K.A.'s school reported to the Division that L.A. reported seeing shadows in the home going back and forth through her room, and that she believed her landlord had "roots" on her daughter. While no neglect was found, Division supervision continued.
On September 13, 2004, the Division received a report from L.A.'s psychologist that L.A. was incoherent and seriously mentally impaired and that L.A. believed people were targeting her for destruction. L.A. reported to a Division worker that her landlord was using voodoo against her and her children.
L.A. confirmed that she had stopped taking her psychiatric medication and that she occasionally used marijuana. However, the children reported that their mother was taking good care of them, and no abuse or neglect was found. In November 2004, the Division filed a verified complaint for investigation, seeking to compel L.A. to submit to psychological and substance abuse evaluations and urine screening. In December 2004, L.A. was evaluated by Dr. Leslie Trott, a psychologist, who found that L.A.'s "psychological disability so impairs her functioning that she cannot be considered competent to parent." Trott recommended an immediate psychiatric evaluation.
In January 2005, the daughter, D.K.A., told the Division worker that she was hearing voices at night, and that she had formerly been fearful of shadows appearing in the apartment, but that she was no longer fearful of the shadows because they were the spirits of dead people who had been killed in the house. Once she was removed from the house, she no longer reported seeing these shadows or hearing voices.
Based on Trott's report and L.A.'s refusal to cooperate with the Division, the Division filed a verified complaint and order to show cause seeking custody of the children. On February 1, 2005, an order to show cause was issued, removing the children from the home. When Division personnel arrived to take the children, L.A. screamed and cursed at them, placed the children in the bedroom, took a kitchen knife and threatened to kill the caseworker, and then retreated to the bedroom. The police were called and, eventually, were able to negotiate the release of the children. D.K.A. was placed with her paternal grandmother, where she has remained to the present time.
On April 27, 2005, L.A. was ordered to undergo psychiatric evaluation and to comply with the recommendations for treatment. Compliance hearings were held on September 27, 2005, and December 20, 2005. L.A. had weekly visitation with D.K.A. Initially, L.A. kept her appointments with her treating psychologist, who reported her progress as fair, indicating that she remained intermittently psychotic. However, by December 2005, L.A. had missed the last two months of visits with the psychologist and had sent him incoherent and illogical letters. He indicated that L.A. was intermittently in a state of psychosis and that her thinking was illogical. Her irregular attendance at sessions with him and her resistance to medication had prevented improvement in her mental health. He found that she was not capable of making reasonable and quality decisions for the children.
A permanency hearing was held on January 25, 2006, and an updated permanency plan was submitted to the court in April 2006. On April 26, 2006, the court entered an order approving the Division's plan to terminate parental rights, indicating that L.A. had not been complying with the necessary psychological and psychiatric treatment, including medication, and was incarcerated until September 2006. On that same date, the father of D.K.A. surrendered his parental rights, with the understanding that the paternal grandmother would adopt the child. The Division then filed a complaint for termination of L.A.'s parental rights. L.A. served a prison term for an assault charge from February 2006 to September 2006. When L.A. was released from prison, her visitation with D.K.A. resumed, and she was ordered to undergo further psychological and psychiatric evaluations.
In September 2006, L.A. was evaluated, at the request of the Division, by Dr. Marcia Laky, a psychologist. Laky reported that L.A. had "disorganized and paranoid patterns of thinking and aggressive outbursts that would seriously affect her functioning in the role as a parent." Laky found that L.A.'s "paranoid thinking involves enduring, deep thoughts of persecution by others and a serious mistrust of pills and most doctors. She maintains an unrealistic blameless self picture by projecting the blame for difficulties onto others . . . ." While the doctor found L.A. capable of physically taking care of herself and the children and even of finding a job, the doctor's concern was with L.A.'s mental state, "delusional behavior and paranoid type of thinking that interfered with her functioning day to day."
In September 2006, Dr. Samiris Sostre conducted a psychiatric evaluation of L.A. At that point L.A. was not on psychiatric medication nor was she receiving any mental health treatment. Sostre's diagnostic impression was of a psychotic disorder, a bipolar disorder, a schizoaffective disorder, and a paranoid personality disorder. Until L.A. was in treatment and her symptoms of paranoia improved, he could not recommend that she regain custody of her children.
A bonding evaluation was conducted of D.K.A. by Laky, who found that D.K.A. and her paternal grandmother had bonded. The grandmother was found to genuinely love her granddaughter, and she was able to provide a good permanent home for the child.
D.K.A. appeared securely attached to her grandmother and happy with her. D.K.A. was found to also love and respect her mother, but D.K.A. did not fully understand the situation regarding her mother. Laky recommended that parental rights be terminated and that D.K.A. remain with the grandmother. D.K.A. would have stability and protection by living with the grandmother, while living with the mother would result in significant instability due to the mother's serious mental illness. However, if parental rights were terminated, D.K.A. would need help in understanding why the termination occurred.
The guardianship trial for the termination of L.A.'s parental rights was held on November 16, 17, and 30, 2006, and December 1, 2006. L.A. was represented by counsel at the hearing and testified on her own behalf. A law guardian appeared for D.K.A. and supported the application to terminate parental rights. The trial court issued a twenty-one page written decision, dated January 18, 2007, and found that the Division had sustained its burden of proof by clear and convincing evidence and that termination of L.A.'s parental rights was mandated.
On this appeal, L.A. raises the following points:
The Division failed to prove the first prong of the standard for termination of parental rights as set forth in N.J.S.A. 30:4c-15.1a by clear and convincing evidence.
The Division failed to prove the second prong of the standard for termination of parental rights as set forth in N.J.S.A. 30:4c-15.1a by clear and convincing evidence.
The Division failed to prove the fourth prong of the standard for termination of parental rights as set forth in N.J.S.A. 30:4c-15.1a by clear and convincing evidence.
The defendant was denied due process because the trial judge based his decision in large part on documents which were hearsay, thereby rendering the decision flawed and abusing his discretion.
A. Rule 5:12(d) should not have been invoked to permit the admission of expert reports absent the opportunity to cross examine the experts and absent any information with regard to the methods employed in their preparation.
B. Admission of hearsay in the form of written Title 9 provisions could not support the expert reports.
We note that L.A. maintains error was committed at trial when Division workers were permitted to read into the record portions of expert reports contained in the Division's file. The reports contained opinions of mental health experts who had evaluated L.A. Those experts were not called as witnesses and, hence, were not subject to cross-examination. However, the court rules expressly allow the Division to admit into evidence reports of its consultants as business records. R. 5:12-4(d). Opinions and diagnosis contained in such reports are admissible provided they meet the requirements of N.J.R.E. 808 on included hearsay. N.J.R.E. 803(c)(6). Included hearsay is admissible under N.J.R.E. 808 where "the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness." N.J.R.E. 808.
The Division may submit into evidence:
[R]eports by Bureau staff personnel (or affiliated medical, psychiatric, or psychological consultants), prepared from their own first-hand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with the Bureau. Reports of this type, prepared by the qualified personnel of a state agency charged with 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. The parent remains free to offer evidence contradicting any statements present in such reports and, of course, the trier of the facts may in his discretion call for live testimony on any point.
[In re Guardianship of Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969), cited with approval in N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.), certif. denied, 192 N.J. 296 (2007).]
Accordingly, no evidence rules were violated when portions of the consultants' reports were read into the record. Further, L.A. could have subpoenaed these experts, if she thought that their testimony would have been helpful to her position in the case.
After carefully considering the record and briefs submitted by L.A., the law guardian and the Division, this court finds that the balance of L.A.'s arguments are not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As explained by the trial judge, the four prong statutory test set forth in N.J.S.A. 30:4C-15.1(a) for termination of parental rights has been met, and the record establishes by clear and convincing evidence that this termination of parental rights is in the best interests of the child. We affirm for the reasons set forth by the trial judge below in his comprehensive, written opinion.