On appeal from the Superior Court, Chancery Division, Family Part, Passaic County, FG-16-21-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2009
Before Judges Lisa and Sapp-Peterson.
Defendant, G.F., appeals from a judgment of guardianship terminating her parental rights to her daughter, E.D., who was born on February 16, 1999.*fn1 Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. Defendant also argues that her due process rights were violated by the admission in evidence of impermissible hearsay, namely the report of Dr. Margaret DeLong, a psychologist. Finally, for the first time on appeal, defendant argues that her due process rights were violated by allowing a testifying psychologist, Dr. Rachel Jewelewicz-Nelson, to render and opinion that termination of parental rights would not do more harm than good to E.D. We reject these arguments and affirm.
The Division first became involved with defendant and E.D. on March 5, 2003, based on E.D.'s report to school personnel of physical abuse and E.D.'s prior attendance at school with redness on her face. Although defendant admitted hitting E.D. with a belt, the Division's investigation found the allegations of abuse unsubstantiated. On April 18, 2003, defendant admitted herself to Saint Mary's Hospital. She reported depression, homicidal thoughts, suspicion and paranoia. Defendant's discharge summary noted that "she was irritable and expressed wishes to kill a lot of people" and said "if she would have [had] a gun she would blow their heads off." Defendant was diagnosed with schizoaffective disorder. Her discharge summary listed four prior psychiatric hospital admissions, noncompliance with medication since terminating outpatient treatment, and a history of cocaine and alcohol abuse. Defendant was referred for continuing psychiatric care and prescribed medication.
The case was again activated with an anonymous report on August 19, 2005, alleging that defendant and a male friend used heroin while watching E.D. Defendant acknowledged to DYFS representatives that she smoked marijuana the previous week when E.D. was out of the house, but denied using illegal drugs in E.D.'s presence. She acknowledged consuming two beers daily, and that she sometimes had E.D. bring the beer to her. She also acknowledged drinking liquor. She said she was taking Prozac for depression and was not engaged in counseling. A criminal background check revealed that defendant was arrested on narcotics charges in 1995 and 1997 and charged with stealing merchandise in 1999.
Although the Division determined that the allegations of neglect from defendant's alleged heroin use were unfounded, the Division felt concern for E.D. because of defendant's history of "mental illness, substance abuse, and criminal activity." A substance abuse evaluation was ordered, and defendant reported a long history of marijuana and cocaine use and alcohol abuse. A test was negative for drug and alcohol use at that time. Defendant reported having homicidal thoughts, and the contact sheet noted that defendant was "Bi-polar and borderline schizophrenic. Mother seemed delusional[,] anxious and withdrawn." Based upon this information, the Division referred defendant for a psychological evaluation by Dr. DeLong, which was conducted on September 12, 2005. In her report of that date, Dr. DeLong summarized her clinical impressions and recommendations:
[Defendant] demonstrates poor reality testing. . . .
[Defendant]'s responses on the testing (MCMI-III) also indicated serious paranoid and delusional thinking. . . .
[Defendant]'s responses during the interview indicate that she also experiences significant depression. She indicated that she has been hospitalized on several occasions for depression. She stated that her depression has interfered with her functioning. In the past, she was not able to leave her house for six to nine months. She stated that she was too tired to bring her daughter to day care. She reported feeling overwhelmed with poor coping skills. Her depressive feelings appear to be current, as well as longstanding and debilitating. She stated that she was also hospitalized in the past for suicidal thoughts. Her MCMI-III profile was also elevated for major depression, dysthymia, and depressive personality traits.
[Defendant] reported current homicidal thoughts. She stated that she desired to obtain a gun so that she could kill her intended victims. When questioned about her statements in an attempt to assess her seriousness, [defendant] stated twice that she would like to kill these people. When asked if she would kill them if she had a gun, she said, "Of course. Because they're always laughing." When asked again if she really meant that she would kill if she had a gun, she said, "That's what I meant. I was really gonna kill 'em." This is particularly a concern because [defendant] talked about ways that she could obtain a gun, such as asking people for a gun, and going to New York to obtain one. This is also a concern based on her history of violence.
Regarding her history of violence, [defendant] disclosed that she stabbed a woman at work in North Carolina. Not only is this act a significant concern, but her manner in relating the incident is a concern. She talked about the incident with no remorse. She was very matter of fact as she talked about stabbing a woman on her head, her neck, "upside her head," and tearing the woman's clothes off. It is also a concern that [defendant] stated that she did not even realize that she was stabbing the woman while she was doing it.
[Defendant] also disclosed a history of substance abuse problems. She stated that she was also hospitalized for substance abuse. She also has a criminal history involving drugs. Her criminal history is also reportedly significant for prostitution and assault.
[Defendant] also disclosed a history of trauma. She stated that she was verbally and physically abused by her mother. She also alleged physical abuse by her step-father. She also stated that she was kidnapped, and that she was raped at the age of 15. She also stated that she was sexually assaulted by her employer when she was a "nanny" at the age of 11.
[Defendant] is not capable of providing minimally adequate parenting at this time. She demonstrates poor reality testing with significant paranoia and delusions of persecution. She is also significantly depressed, feeling overwhelmed by feelings of sadness and anger. Her delusions of persecution coupled with her anger may predispose her to violence. The fact that she has behaved violently in the past adds to this concern. She has a history of criminal behavior and substance abuse behavior. It is also a serious concern that she reported having current homicidal thoughts. Her delusions of persecution, anger, homicidal thoughts, previous violent behavior, and lack of remorse place her at high risk of harm. It is noted that her thoughts of harming others do not appear related to her daughter, but rather against the people she believes are harassing her. Other concerns are that she did not adequately plan for [E.D.] when she was hospitalized before. At first she did not remember who she left her daughter with. Then when she remembered, she stated that this person was not a good person to leave her daughter with, and that this person did not adequately care for her. It is also a concern that currently, [defendant] does not have electricity in her residence. To her credit, [defendant] is open to receiving assistance and was willing to voluntarily hospitalize herself.
Recommendations are as follows:
1. . . . [defendant] be hospitalized for psychiatric evaluation and treatment. . . . It is important that homicidality and suicidality be monitored and considered as a factor in discharge planning.
2. It is important that [defendant] comply with all recommendations during her hospitalization, as well as upon her discharge. Due to her history of frequent hospitalizations, she is likely going to require a high level of psychiatric care upon her discharge.
3. It is recommended that supervised visitation with [E.D.] only occur after [defendant] has demonstrated mental health stability. However, visitation would be contraindicated at this time if her daughter does not feel safe doing so. Information about how [E.D.] feels about visitation is not known by this evaluator. At this time, it is not known what progress [defendant] will make, and whether her progress will render her capable of having unsupervised contact with her daughter, or having her daughter eventually returned to her care.
4. It is not known how [defendant] will respond to treatment, including antipsychotic medication. It is recommended that she participate in a psychological reevaluation after she has ...