On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Un20-112-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Resubmitted April 20, 2009
Before Judges Winkelstein, Gilroy and Chambers.
Defendant L.M.T. is the biological mother, and defendant D.V.H. is L.M.T.'s husband and the biological father, of two children, Du.H. born in August 2002, and De.H. born in September 2003. Defendants appeal from an April 20, 2007 order, memorializing a bench opinion, terminating their parental rights to the children.
The court found that De. was the victim of Shaken Baby Syndrome and, based on the circumstantial evidence, defendants caused De.'s injury. The court found that the prongs of N.J.S.A. 30:4C-15.1(a)(1)-(4) had been satisfied so as to warrant termination of defendants' parental rights to both children.
After receiving the parties' briefs on appeal, by order of March 5, 2009, we remanded to the trial court to evaluate L.M.T.'s ineffective assistance of counsel claim that her trial attorney refused to allow her to testify as a witness at the termination of parental rights trial.*fn1 See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007) (holding that ineffective assistance of counsel standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) are applicable to termination of parental rights proceedings). Following the remand hearing, in which the trial court heard testimony of L.M.T. and her trial attorney, the trial court concluded that its decision to terminate the parental rights of L.M.T. to Du. and De. would not have been different had L.M.T. testified during the termination trial. The court consequently rejected L.M.T.'s ineffective assistance of counsel arguments and memorialized that decision in an order dated April 20, 2009.
Having reviewed both the initial trial record and the record of the remand proceedings, we affirm both the trial court's initial order of April 20, 2007, terminating defendants' parental rights, and the court's subsequent order of April 20, 2009, denying L.M.T.'s ineffective assistance of counsel claim.
A. Removal and Investigation
L.M.T. and D.V.H. are Vietnamese. They managed a nail salon in Newark and both worked long hours. L.M.T. speaks Vietnamese and almost no English. Vietnamese interpreters were used during the termination trial. Other than when in the courtroom, L.M.T.'s attorney used D.V.H., with the consent of D.V.H.'s counsel, to interpret for L.M.T. when he spoke with her.
The Division of Youth and Family Services (DYFS) was first referred to the family by St. Peter's Medical Center on Saturday, December 13, 2003. Three-month-old De. was admitted the day before, suffering from a hematoma and other serious injuries. Hospital personnel suspected Shaken Baby Syndrome. Upon learning of De.'s injuries, DYFS removed both children from their parents' custody.
DYFS and various law enforcement agencies conducted an investigation into the cause of De.'s injuries. D.V.H. told a DYFS investigator that he first noticed De. crying and acting irritably on Tuesday night, December 9. After being fed, De. went to sleep. Defendants did not obtain medical attention for De. until Friday, December 12, when L.M.T.'s mother told D.V.H. to call 9-1-1 after De. had a seizure.
D.V.H. and L.M.T. gave statements to law enforcement personnel on December 13. L.M.T. stated that D.V.H. was with De. on Thursday, December 11, when De. began crying loudly and frequently around 2:00 p.m. to 3:00 p.m. That night, L.M.T. arrived home from work and noted that De. was crying and his feet and arms were twitching and shaking.
D.V.H. took the child to a doctor's office the following morning, Friday, December 12, after De. vomited, and because his eyes were still twitching. L.M.T. stated that D.V.H. told her on the phone that the doctor's office was too crowded, so she told him to bring the child home. D.V.H. then took De. to L.M.T.'s mother's house. After L.M.T. returned from work, she and D.V.H. went to her mother's house to get De. He was crying and twitching and could not keep his food down. After they returned with the child to their house, D.V.H. called emergency personnel who took De. to the hospital by ambulance.
L.M.T. told the police that a babysitter cared for her children while she and D.V.H. worked; the babysitter last saw both children on Wednesday, December 10; and De. did not appear ill when defendants picked him up that night.
D.V.H. told the police that the children had been with the babysitter on Monday, Tuesday and Wednesday, from 10:00 a.m. to 7:00 p.m., contrary to L.M.T.'s statement that D.V.H. stayed home with De. on Wednesday, December 10. He said the children stayed with him on Thursday, December 11, while his wife worked. D.V.H. first noticed that De. was crying and that his hand was shaking by early afternoon that day. His wife arrived home at 7:00 p.m., but he did not mention De.'s problem to her. L.M.T., however, could see that De. was crying and twitching. D.V.H. asserted that he worked on Friday, December 12, and that Du. was with the babysitter and De. was with L.M.T.'s mother. When defendants picked De. up that night, he was still crying and shaking, so they called 9-1-1.
L.M.T.'s sister, L.T., gave a statement. She had not seen De. after he was born until Friday, December 12, when D.V.H. called and told her that De. was sick. D.V.H. brought De. to L.T.'s residence, and she told D.V.H. that the child needed medical attention; D.V.H. told her that a "family doctor said that the baby was okay."
In January 2004, DYFS interviewed D.V.H., who reiterated that he had stayed with the children on Thursday, December 11, and that he noticed De.'s medical problems that day. No one other than he or L.M.T. was with De. on December 11.
D.V.H. said that the next day, Friday, Du. was with the babysitter and De. was with L.M.T.'s mother. When D.V.H. picked up the child that night, De. was still experiencing problems so D.V.H. called emergency personnel. L.M.T. confirmed that version of the events, except to note that D.V.H. took De. to the doctor on Friday, but did not stay because the doctor's office was too crowded.
Law enforcement personnel interviewed the babysitter, T.D. She last sat with De. on Wednesday, December 10. She said that De. acted normally, and nothing seemed wrong with him when he left. She sat with Du., but not De., on Friday and Saturday, December 12 and 13, until the police retrieved Du.
De. remained at St. Peter's Medical Center from December 12, 2003, until he was transferred to Children's Specialized Hospital in January 2004. He had sustained "severe traumatic brain injury secondary to non-accidental trauma." He suffered from "persistent seizures" and "needed to be on a ventilator." He was discharged to his current foster home in August 2004. Du. was placed in various temporary foster homes until his current placement with the same foster parents as De. in May 2004.
Gladibelle Medina, M.D., the State's expert in pediatric medicine, examined De. on December 13, 2003, while he was in the ICU at St. Peter's Hospital. De. was paralyzed and intubated, and had a hemorrhage in his eye caused by force applied to his face. His entire retina had been affected. Testing showed old blood in De.'s forehead and new "fresh" blood in the back of his head.
Based on these symptoms, the lack of any other explanation for his injuries, and the sudden onset of symptoms, Dr. Medina concluded that De. suffered from a "subdural hematoma" caused by "non-accidental head trauma." Dr. Medina referred to De.'s condition as Shaken Baby Syndrome. She considered the "old blood" to be evidence of an earlier brain injury, for which she had no explanation. As a result of his injuries, De. is blind, cannot walk, suffers from numerous spasms and both "infantile" and "tonic/clonic" seizures each day, and has difficulty swallowing and communicating. The doctor believed that the injury occurred within seventy-two hours of De.'s admission to the hospital on Friday, December 12. She later clarified that the actions that caused De.'s injuries occurred either Wednesday night or Thursday.
The police charged D.V.H. with child neglect on May 18, 2005, for failure to obtain medical assistance for the child. He was admitted to the Pretrial Intervention Supervisory Treatment Program, which he completed prior to the termination trial.
B. Services Provided By DYFS
DYFS provided a number of services to defendants, including parenting classes, psychological, psychiatric and bonding evaluations, interpreters and visitations. DYFS also assessed family members to see if they could care for the children. DYFS submitted referrals for mental health services for both L.M.T. and D.V.H., and both defendants participated in psychiatric and psychological counseling.
Mark Singer, Ed.D., performed a psychological evaluation of defendants. He concluded that both had a limited understanding of De.'s medical condition. Defendants did not offer an explanation as to how their son received his injuries. Given the uncertainty surrounding who caused De.'s injuries, and defendants' challenges and understanding in dealing with De.'s medical condition, Dr. Singer believed that defendants' ability to "function effectively as parents" may be limited, especially in light of the nature of De.'s injuries and the type of medical care he may require. Dr. Singer recommended that defendants receive parenting classes and individual psychotherapy and have supervised visitation with the children.
DYFS had difficulty locating either an interpreter for L.M.T. who could assist during defendants' counseling sessions, or a counseling service that used or allowed the use of translators. As a result, although the order for removal was filed in December 2003, counseling services did not begin until July 2004. D.V.H. did not need an interpreter; however, he never approached DYFS and asked that his individual counseling begin before an interpreter was found for L.M.T.
Shanequa Coelho, the DYFS caseworker assigned to the family as of the trial date, and the employee through whom DYFS presented its documentary evidence, testified that although D.V.H. did not need a translator, DYFS wanted defendants to receive counseling together. Therefore, D.V.H.'s counseling did not begin until an interpreter was found to assist L.M.T. Ultimately, counseling services were provided through Family and Children's Services (FCS).
DYFS also provided defendants with visitation, first with De. at the hospital and with Du. at a DYFS office, and then with both boys at Reunity House, a DYFS contract provider that supervised visits. Visits began in January 2004 on a biweekly basis, and continued at Reunity House as of trial, consisting of two hours of supervised visitation per week. Shortly before trial, Reunity House notified DYFS that it believed that visitation there was inappropriate because the goal of Reunity House was reunification rather than adoption.
Coelho observed two visits, in September 2005 and February 2006. At the September 2005 visit, defendants were unhappy with their children's weight and began the visit with a negative demeanor. Coelho explained that she would be willing to address the issue after the visit, but defendants could not exhibit such poor demeanor during the visitation with the children. Ultimately, defendants calmed down and the visit proceeded. Coelho described that visit as "strained" and not positive. At the 2006 visit, D.V.H. scolded Du. for being a "bad boy" because he misbehaved at school. Du. acted out.
Coelho pointed to several problems DYFS had with Reunity House. First, it failed, as required, to provide reports documenting the visits and progress made by the family, despite repeated requests by DYFS. Moreover, at certain visits when D.V.H. improperly treated the children, Reunity House personnel failed to intercede.
Mr. C., the boys' foster father, pointed out that Reunity House never reported whether De. suffered from seizures during any of the visits, which Mr. C. found concerning because De. normally had several spasms per day. He also testified that Reunity House had occasionally refused to accommodate his and the children's need to alter the visitation schedule; the children missed some visits because they were either sick or had doctor's appointments. In a letter to the court expressing their various concerns, the foster parents advised that they had never received reports from Reunity House regarding the children's visits with defendants.
Defendants enrolled in parenting classes at Reunity House. They had not completed the classes by 2006, even though they had been enrolled for over two years. Nevertheless, in correspondence dated November 25, 2005, Reunity House staff members expressed their belief that defendants could parent their children safely and effectively, particularly if they received courses in physical and occupational therapy so that they could better cope with De.'s needs.
In November 2004, the court ordered DYFS to enroll defendants in occupational and physical therapy courses. DYFS contacted several providers and schools, including the St. Joseph's School for the Blind, but was unable to locate any providers that could offer those services to defendants, particularly because the children did not live with defendants.
In March 2005, the medical staff of Children's Specialized Hospital consulted with defendants and explained De.'s condition and needs. Hospital staff noted that even by that time, defendants still seemed "not to accept [De.'s] condition or their role" in caring for him. They never independently sought further consultations to learn more regarding De.'s condition and needs.
C. Placement and Current Situation
Du. was placed with his current foster parents in May 2004 and De. was placed there three months later. The foster home had been designated as a Special Home Service Provider (SHSP), after the foster parents received training from DYFS and were CPR trained and certified. The foster father, Mr. C., was a full-time house father, while Mr. C.'s wife provided the family's income, working full-time. Mr. C. called Du. a normal child who sometimes exhibited "excessive" behavior such as biting Mrs. C. and E., the foster parents' adopted Vietnamese daughter, and by failing to pay attention in school. According to Mr. C., Du. and E. were playmates and Du. "loved [E.] as a sister."
As of the trial date, De. required twenty-four-hour supervision. On a typical day, Mr. or Mrs. C. awakened De., gave him his seizure medications, fed him, and then showered with him. They then took him to school, initially at a Head Start program. Beginning in September 2006, he attended either the St. Joseph's School for the Blind, a special school for disabled children, in which the foster parents were able to enroll him through their own efforts, or to therapy/rehabilitation appointments. When De. ...