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New Jersey Division of Youth and Family Services v. P.A.P.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 3, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
P.A.P., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF Q.A.P.W., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
Q.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF Q.A.P.W., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FG-07-128-06 and FN 07-326-04.

Per curiam.

RECORD IMPOUNDED

FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2008

Before Judges Parker, R. B. Coleman and Lyons.

In these consolidated cases, Q.W., the father, and P.A.P., the mother, appeal from a judgment entered on December 19, 2006 terminating parental rights to their biological child, Q.A.P.W.

The Division of Youth and Family Services (DYFS) first became involved with this family in May 2001 when the mother's then-three-year-old child was not picked up on time from daycare. The daycare center made a referral to DYFS, which did not substantiate abuse or neglect based upon P.A.P.'s representation that she thought the child's father, B.M., was picking up the child.

On May 8, 2003, a school nurse reported to DYFS that P.A.P.'s then-eight-year-old had lost weight, was malnourished and did not have her asthma medication. The child was admitted to the hospital. When DYFS investigated, it determined that P.A.P. had lost her Medicaid benefits because she had not attended required programs. As a result of the lost Medicaid benefits, P.A.P. could not buy the child's medication. P.A.P. was also behind in her rent and was going to food pantries to feed the children.

On May 23, 2003, P.A.P. signed a six-month consent for placement of the eight year old with a family member. At a factfinding hearing in February 2004, it was determined that that child had been malnourished and medically neglected. DYFS continued to be involved with P.A.P. and her two older children.

With respect to this case, P.A.P. advised both DYFS and the court at the February 2004 hearing that she was pregnant with Q.A.P.W. She previously had an ultrasound examination that indicated possible fetal liver calcifications, which could be caused by a number of infections acquired by P.A.P. during her pregnancy. This condition is known as TORCH syndrome.

Q.A.P.W. was born on March 26, 2004. Five days later, on April 1, 2004, a DYFS caseworker went to P.A.P.'s home to determine whether the infant was healthy but could not find the mother or infant. When DYFS contacted the family member caring for P.A.P.'s two older children, she told the caseworker that P.A.P. had asked her to take care of the infant because she believed DYFS would take him. When the caseworker called P.A.P.'s home from the relative's phone, P.A.P. answered the phone. The caseworkers then went to P.A.P.'s home, but the five-day-old infant was not there and P.A.P. claimed that the infant's father had taken him. DYFS substantiated allegations of neglect because P.A.P. appeared to be hiding the infant and demonstrated poor judgment in not knowing where he was. On April 2, 2004, DYFS filed an order to show cause for P.A.P. to produce the infant. The court granted DYFS custody and supervision.

DYFS made several attempts to serve P.A.P. with the order and take custody of the infant. When DYFS went to P.A.P.'s house, the father, Q.W., answered the door and objected to removal of the infant. When the caseworker assessed the home, she found that the mother and father had been living together and that the infant's bed was a car seat. The infant also appeared to have an eye infection.

The infant was taken to the emergency room and it was determined that he had an abnormal liver, requiring further testing for the TORCH syndrome. Allegations of medical neglect were substantiated because P.A.P. had not followed up on the infant's serious medical problems.

After several attempted family placements were unsuccessful, the then-six-month-old baby was placed in a foster home in October 2004. In July 2005, P.A.P. was evaluated by Dr. Albert Griffith. Dr. Griffith reported that P.A.P. was unemployed, had a marginal ability to read and write and was in need of parenting skills training and therapeutic intervention. He found that P.A.P. was unaware of her own limitations and could become unintentionally neglectful.

Dr. Griffith also evaluated Q.W. and reported that he lived with P.A.P. in a substandard apartment and was also unemployed. He had been working in a fast food restaurant but quit when his hours were shortened. Dr. Griffith found that Q.W. had poor insight and did not accept responsibility for himself or his child. Dr. Griffith found that Q.W. had the potential to learn parenting skills, but he also had the potential to become abusive because he became explosive when over-stimulated.

In July 2005, Dr. Griffith again evaluated Q.W. and indicated that he had worked from March 2005 until May 2005 and still lived in a one-bedroom apartment with P.A.P. Dr. Griffith concluded that Q.W. was limited, mentally retarded, emotionally immature, lacked insight into the child's needs and could not serve as the child's primary caretaker. Nevertheless, Q.W. indicated that he wanted to parent the child, even though he had not made any progress with parenting classes.

In October 2005, Dr. Griffith did a bonding evaluation of P.A.P. and the then-eighteen month old Q.A.P.W. He reported that while the child "tolerates and is familiar with P.A.P., he is not bonded to her, and he is a clingy, anxious child who does not look to P.A.P. for safety, assurance and direction."

Dr. Griffith also performed a bonding evaluation between the child and his foster mother. He found there, too, that the child was clingy and did not explore his environment or accept strangers into his world easily. Nevertheless, the child had a bond with the foster mother to whom he looked for assurance, direction and safety.

In October 2006, the kinship legal guardian of P.A.P.'s two older children, indicated she would take Q.A.P.W., as well. That family member lived in a three-bedroom apartment with P.A.P.'s two older daughters and a niece. She had previously declined to take care of Q.A.P.W, however, and DYFS ruled out her serving as the child's foster parent.

There were numerous efforts to provide the family with services in order to reunite them, all to no avail. The DYFS complaint was filed in April 2004, seeking custody and supervision of Q.A.P.W. and his two older siblings who were not fathered by Q.W. The guardianship trial was conducted in December 2006, after which the trial judge rendered an oral decision terminating parental rights of both parents. In this appeal, Q.W. argues:

POINT ONE

THE ORDER TERMINATING Q.W.'S PARENTAL RIGHTS AS TO HIS SON, Q.A.P.W., MUST BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR PRONGS OF THE STATUTE, AS REQUIRED BY LAW

A. Credibility, or lack thereof, of the Division's witnesses

B. N.J.S.A. 30:4C-15.1 and the "four prong test."

1. The trial judge failed to consider all of the evidence and improperly determined that the first prong of the statute was satisfied with regard to Q.W.

2. The trial judge improperly evaluated the evidence admitted at trial and was in error in concluding that the Division satisfied the second prong of the statute by clear and convincing evidence.

3. The evidence admitted at trial, including the voluminous file materials, supports the fact that the Division failed to demonstrate through clear and convincing evidence that they made diligent efforts to assist Q.W. or that the Division made a true effort to consider alternatives to termination of parental rights

4. The Division failed to demonstrate by clear and convincing evidence that termination of parental rights will not do more harm than good.

POINT TWO

THE EXPERT OPINION RENDERED BY ALBERT GRIFFITH, Ed.D., IS NOTHING MORE THAN A "NET OPINION" THAT MUST BE EXCLUDED UNDER THE NEW JERSEY RULES OF EVIDENCE RESULTING IN THE DIVISION'S FAILURE TO PROVIDE THE CLEAR AND CONVINCING EVIDENCE THAT IS REQUIRED TO SATISFY THE FOUR PRONGS OF N.J.S. 30:4C15.1

(a), AND, THEREFORE, Q.W.'S PARENTAL RIGHTS MUST BE REINSTATED POINT THREE JUDGE CALLAHAN SUBVERTED THE ADVERSARIAL PROCESS BY THE MANNER IN WHICH THE TRIAL WAS CONDUCTED JUSTIFYING A REVERSAL OF THE DECISION TO TERMINATE PARENTAL RIGHTS In her appeal, P.A.P. argues:

POINT ONE

THE REMOVAL OF Q.A.P.W. FROM P.A.P. ON APRIL 5, 2004 WAS PROCEDURALLY AND FACTUALLY DEFICIENT

POINT TWO

THE OCTOBER 25, 2004 FINDING THAT P.A.P. NEGLECTED THE BABY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO MEET THE CONDITIONS SET FORTH IN N.J.S.A. 9:6-8.21 (c)

POINT THREE

THE STATE'S PSYCHOLOGIST-WITNESS DID NOT HAVE THE EXPERTISE REQUIRED BY N.J.R.E. 702, AND THE COURT'S RELIANCE ON HIS NET OPINIONS IN THE GUARDIANSHIP TRIAL WAS ERROR

POINT FOUR

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE ELEMENTS OF N.J.S.A. 30C-15.1(a). THE FINDINGS OF FACT WERE NOT SUPPORTED BY COMPETENT, RELIABLE, CREDIBLE EVIDENCE

On December 19, 2006, the trial court rendered a decision on the record in which he determined credibility of the witnesses and analyzed each of the four factors articulated in DYFS v. A.W., 103 N.J. 591 (1986), codified in N.J.S.A. 30:4C-15.1.

We have carefully considered defendants' arguments in light of the extensive record and the applicable law. We are satisfied that defendants' arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Judge John Callahan rendered a thorough and thoughtful decision on the record of December 19, 2006 and we affirm substantially for the reasons set forth therein. Nevertheless we add the following comments.

Q.W. and P.A.P. argue that Dr. Griffith's expert report was a net opinion that should have been excluded by the court. We note initially that there are at least six reports by Dr. Griffith included in the record, along with his testimony on December 11, 2006. None of Dr. Griffith's written reports list the records upon which he relied in rendering the reports. Rather, the reports largely relate what the expert observed in each session, including the bonding evaluation sessions, and the results of tests he administered.

In his testimony, Dr. Griffith stated that he relied on documents provided by DYFS in rendering his July 21, 2005 report on P.A.P. and his July 28, 2005 report on Q.W. He testified, however, that he never lists background materials in his reports and did not remember specifically whether he saw any medical documents regarding the child.

Defendants argue that Dr. Griffith's reports are net opinions because they lack the proper foundation to support his conclusions. In Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002), we noted that an expert is required "'to give the why and wherefore' of his or her opinion, rather than a mere conclusion." (Quoting Jiminez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

While it is clearly preferable for an expert to list all of the materials reviewed in rendering a report, the absence of such lists is not fatal to these reports because they are based largely upon the expert's observations, interviews and tests administered to the subjects. Dr. Griffith was extensively cross-examined by counsel for both parents, giving the trial court the opportunity to assess any deficiencies that may have existed in his reports.

Moreover, defendants never objected to Dr. Griffith's testimony at trial nor did counsel seek to have his testimony stricken. There is sufficient credible evidence in the record as a whole to support the findings of the trial court, R. 2:11-3(e)(1)(A), and we are not persuaded that the deficiencies in Dr. Griffith's reports rise to the level of plain error. R. 2:10-2.

Moreover, we find no merit in Q.W.'s argument that the trial judge "subverted the adversarial process by the manner in which the trial was conducted." In our review of the record, we find that the trial was conducted fairly and that each party had the opportunity to present his or her evidence and cross-examine the witnesses. R. 2:11-3(e)(1)(E).

Finally, we find no merit in P.A.P.'s argument that the October 25, 2004 finding that she neglected the baby was unsupported by sufficient credible evidence. The court's finding was based upon P.A.P.'s conduct in attempting to hide the five-day-old infant from DYFS and neglecting to attend to the infant's serious medical issues during the first weeks of his life. There was more than sufficient credible evidence to support the court's finding of neglect.

Affirmed.

20080303

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