On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-121-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2008
Before Judges Carchman and R. B. Coleman.
Defendant I.H. ("defendant" or "I.H.") appeals from a November 14, 2007 judgment of the Chancery Division, Family Part terminating her parental rights to her sons A.H., Jr. and C.H.*fn1
We conclude that there was sufficient evidence to support the trial court's decision and that defendant received a fair trial and proper assistance of counsel. Accordingly, we affirm.
We briefly set forth the relevant facts. Plaintiff Division of Youth and Family Services ("DYFS" or "the Division") first became involved with I.H. in 2000, when she was still a minor. On January 27, 2000, the Division received a referral from I.H.'s mother, requesting that I.H. be removed from the home because of her "out-of-control behavior." This first encounter would presage consistent conduct confirming I.H.'s history of mental illness, suicide attempts and ideations, multiple placements in treatment facilities and poor compliance with psychotropic medication.
A psychiatric evaluation completed on February 9, 2002, revealed that, at age ten, I.H. had disclosed to a school counselor that she had been sexually abused by her father when she was seven years old. After she made the allegation, her behavior worsened, including increased defiant behavior, accompanied by crying spells and suicidal ideations.
At age twelve, she was diagnosed with major depression, post-traumatic stress disorder and borderline personality traits resulting in several psychiatric hospitalizations. She was prescribed multiple types of medication, without a positive result, probably due to her non-compliance. She presented a history of physical violence towards her mother and, in August 2003, she reportedly threatened her mother with a knife. Later that same month, I.H. and her stepfather engaged in a physical altercation over the television remote control, resulting in I.H. needing eight stitches in her leg and her stepfather being charged with criminal abuse.
In September 2003, I.H. submitted to a psychiatric evaluation and was diagnosed with major depression, impulse-control disorder, and parent-child relational problems. She admitted to having difficulties with anger-management.
On June 21, 2004, I.H., who was then eighteen years old, gave birth to A.H. at Newark Beth Israel Medical Center, in Newark.
The father of the child is defendant A.H., Sr*fn2 . Within two months, on August 22, 2004, the Division received a referral from the Irvington Police Department reporting that I.H. had appeared at the police station with her two-month-old child stating that her mother made her leave the house, and she had no place to go. Apparently, her mother had "thrown her out" for non-compliance with her medicine regime. She resided unsuccessfully at A.H., Sr's house but was told to leave there as well. On the day she came to the police station, I.H. signed an informed consent for a fifteen-day placement of A.H. with her mother.
DYFS moved quickly, and on September 10, 2004, it filed a Verified Complaint and Order to Show Cause obtaining custody of the child after a finding that "the removal of the child [was] necessary to avoid an ongoing risk to life, safety or health of the child . . . because the parents [did] not have a stable living arrangement."
In March 2005, while pregnant with her second child, defendant was once again homeless. She was referred to shelters, to a clinic for prenatal care and to counseling services. A psychiatric evaluation followed as well as a placement in Covenant House, a residential facility, with plans for a future transfer to the Raphael Life House, where she would be able to reside with A.H. and her second child*fn3 once a plan for reunification could be developed.
A representative of the Raphael Life House, Rolidel Hormazabal, met with I.H. and a Division worker, Victoria Kelly, regarding her application for a bed at the facility. Ms. Hormazabal explained that, to be eligible, I.H. had to fill out an application, and once at the facility, agree to take psychotropic medication as prescribed by their doctor. I.H. became angry and left without completing the application. A similar circumstance arose at Covenant House where, due to her extreme anger problems, she was asked to leave. A month later she was informed that she would not be accepted at the Raphael Life House.
On April 8, 2005, the Division worker contacted Beth Israel Hospital and was informed that I.H. had attended two prenatal appointments. The worker also spoke with Dr. Prabhavathi Gude, the examining psychiatrist, who informed the worker that a recent evaluation was consistent with previous diagnosis of oppositional defiant disorder and borderline features. The Division later determined that I.H. had never attended the clinic for counseling.
I.H. gave birth to her second child, C.H., on April 24, 2005. The hospital social worker informed the Division of the child's birth and reported that I.H. has a history of bi-polar disorder. In response to an inquiry from a DYFS caseworker,
I.H. denied having been diagnosed with bi-polar disorder and stated that, as per her doctor's advice, she did not need to be on medication.
DYFS removed C.H. without court order, N.J.S.A. 9:6-8.29 to 30. On April 27, 2005, the Division filed an Amended Order to Show Cause and Verified Complaint and secured an order placing C.H. in the care, custody and supervision of the Division. The judge found that removal was "necessary to avoid an ongoing risk to life, safety or health of the child . . . because of allegation [that] . . . the mother suffers from mental illness." The judge also ordered that if I.H. is accepted to the Raphael Life House, C.H. could stay there with her.
Defendant, accompanied by a caseworker and police, returned to Raphael Life House, where she met with Ms. Rolidel. While meeting with Ms. Rolidel, I.H. indicated that she did not need medication and would not take any. Ms. Rolidel informed I.H. that taking prescribed medication was a condition to staying at the facility. I.H. refused to accept such condition, and DYFS provided I.H. with a list of shelters.
Meanwhile, I.H.'s mother requested immediate removal of the children from her home and on June 1, 2005, the children were placed with I.H.'s paternal grandmother, G.D., who made it clear that she could not care for them long-term.
Securing defendant's compliance with a court-ordered psychiatric evaluation proved problematic. I.H., at first, consented to be examined by Dr. Alexander Iofin, but she soon withdrew her consent to allow the Division and Dr. Iofin access to her medical records. She did, however, allow Dr. Iofin to contact her mother, which he did in I.H.'s presence, reporting her observations of I.H.'s symptoms in the affective range, including depression and changes in her mood, difficulties with self-control, and decreased attention and concentration. I.H. responded by denying any psychiatric symptoms.
In addition to his interview with I.H., Dr. Iofin conducted tests and considered I.H.'s available psychiatric history, including suicide attempts, multiple psychiatric hospitalizations and residential placements, as well as aggressive and manipulative behavior. He concluded that I.H.'s insight is limited as to the "gravity of her condition." In addition, I.H.'s tests suggested a diagnosis of bi-polar disorder, not otherwise specified, and provisional schizoaffective disorder. He opined that I.H. is within "a fairly small group of individuals who have a significant amount of psychiatric problems in a combination of Affective, Anxiety and Psychotic problems," and that the number of psychiatric hospitalization from a young age is significant. He further opined that although now she is better functioning, in that she does not need inpatient care, her functioning is nonetheless marginal. This is evidenced by her related qualification for Social Security Disability benefits, "which means she was proven to fit the very tight and restricted assessment of her mental health functioning by the federal government." He concluded that her volatile presentation during their meeting, her lack of understanding of her need for treatment and her refusal to take medication, point to diminished chances that her functioning will improve and to a "grave danger" that she will decompensate. He recommended psychotropic medication.
A group meeting with DYFS and all of the critical persons, including the children, proved unsuccessful as I.H.'s behavior escalated to screaming and cursing. Despite the facilitator's efforts to calm her down, I.H. eventually got up and moved quickly towards the caseworker with her fists clenched, screaming, "You're a liar. This ain't over. I'm gonna get you outside and you're gonna be sorry bitch. I'm gonna get my kids back you fucking liar."
On September 30, 2005, a permanency hearing was held, and the judge approved the Division's permanent plan of termination of parental rights with adoption of A.H. by his current caretaker. The judge found that "it [was] not and will not be safe to return the child home in the foreseeable future because [I.H.] ha[d] not addressed [her] psychiatric issues." He also found that the Division had provided reasonable efforts to finalize the permanent plan including "referrals [for] psychiatric evaluation, visitation, [and] family group conference."
In April 2006, I.H. submitted to a psychiatric and biopsychosocial assessment at Mt. Carmel Guild. I.H. admitted to having a history of psychiatric treatment from age seven through fourteen, which she attributed to having been sexually abused by her father, and admitted to three suicide attempts. She denied having any current problems, other than depression resulting from the removal of her children. The evaluator determined that I.H. had a defensive posture, an evasive and guarded attitude, angry mood, fair judgment and poor insight. The evaluator concluded that "[I.H.]'s information was unreliable due to her coming to treatment under coercion from DYFS," and her "prognosis is guarded due to her lack [of] motivation for treatment." I.H. expressed that she did ...