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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 14, 2009

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, No. FG-06-35-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 31, 2009

Before Judges Wefing, Parker and Yannotti.

P.G. is the mother of A.G. She appeals from the trial court judgment terminating her parental rights to her son and granting custody of him to the New Jersey Division of Youth and Family Services ("DYFS"). After reviewing the record in light of the contentions advanced on appeal, we affirm.

A.G. was born on May 17, 2003. His father is P.F., who executed a voluntary surrender of his parental rights and did not participate in the trial below. It is clear from the trial record that P.G. suffers from significant psychological and emotional problems. DYFS retained Linda R. Jeffrey, Ph.D., to evaluate P.G. As part of her evaluation, Dr. Jeffrey administered a series of tests to P.G., interviewed P.G. and reviewed the earlier psychiatric evaluation that had been prepared by Eileen M. O'Connor, M.D. Dr. O'Connor had diagnosed P.G. with schizophrenia and having a history of "multiple severe delusions." Dr. Jeffrey diagnosed P.G. as having bipolar disorder with psychotic features. She wrote the following in her report:

Her profile reflects major personality problems and a lack of adequate coping skills. Her foundation for the management of emotion and cognition as well as regulation of social relationships appears impaired. It is likely that she possesses an inflated self concept combined with an intense mistrust of others. She is likely to have underlying resentment, and to experience frequent interpersonal conflicts and personal and family difficulties. She is easily provoked and may express sudden hostilities. She may lose touch with aspects of reality at times, and distort and exaggerate the superficial comments of others into major insults. She may also attempt to reconstruct reality to suit her desires. She experiences manic periods, and has significant problems with mood regulation. She may become explosively enraged and irrationally belligerent.

Her testimony at trial was to the same effect. She said that P.G. had narcissistic personality disorder with schizoid personality traits and paranoid and obsessive compulsive personality features. According to Dr. Jeffrey, it was highly unlikely that providing treatment and counseling to P.G. would enable her to alleviate these problems.

Dr. Jeffrey also conducted a bonding evaluation of P.G. with A.G. She testified that A.G. appeared to have a superficial relationship with P.G. and that it was, in her opinion, "highly unlikely" that A.G. would experience serious and enduring harm if P.G.'s parental rights were terminated.

In addition, Dr. Jeffrey conducted a bonding evaluation of A.G. with his foster parent. A.G. had been living with her for approximately one year at the time of this evaluation. Dr. Jeffrey found their relationship to be secure and affectionate.

She said it was likely that removing A.G. from her care would place him at a high risk for serious and enduring harm.

DYFS's first involvement with P.G. and A.G. occurred in the fall of 2004. P.G. and A.G. were living with P.G.'s mother, who had been named P.G.'s guardian. Although the initial allegations were not substantiated, DYFS offered a variety of services to the family. A.G. was ultimately removed from his mother's care in February 2006. DYFS had received reports that P.G. and her mother would come to a local diner with A.G. and order food for themselves but none for the child, and that P.G. would offer A.G. to customers in the diner. A.G.'s pediatrician was concerned that A.G., who was three at the time, was still not speaking. In addition, he was not toilet trained.

After his removal, A.G. was first placed with a resource family and then moved to two other homes before being placed with his current foster family. His foster mother is P.G.'s aunt, and she wishes to adopt him. He has made significant progress under her care. Following A.G.'s removal, P.G. made a series of complaints to DYFS and to police, including that A.G. had been kidnapped, that his life was in danger and that a pit bull had bitten off one of A.G.'s arms. None of these reports were true. In addition, P.G. reported that A.G. had, at birth, been one of triplets, but the other two babies had died. This report was also not true. Additionally, there was a telephone call placed to the Newark office of the Federal Bureau of Investigation that the DYFS caseworker was an imposter and was stalking P.G. Her caseworker testified that she told him that A.G. was one of Siamese triplets, an assertion that was not supported by the medical records. P.G. repeated that assertion in her testimony but maintained that the medical records were sealed although she could offer no explanation for such sealing.

P.G. testified on her own behalf and presented one other witness, a customer at the diner she frequented with her mother. That witness disputed the allegations that had led to DYFS removing A.G. from his mother's care.

DYFS offered a variety of services to P.G. While she completed the parenting courses, she refused to participate in programs for her psychological and emotional problems, maintaining she had no need for them.

On appeal, P.G. raises the following arguments:

I. MOTHER'S PARENTAL RIGHTS TO HER SON SHOULD NOT HAVE BEEN TERMINATED BECAUSE DYFS FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, ALL FOUR PRONGS OF THE TERMINATION OF PARENTAL RIGHTS STATUTORY TEST.

A. Because Harm to the Child's Health Was Not Shown, DYFS Failed to Establish That Prong One of the Test Was Met (Not Raised Below).

B. Because DYFS Did not Refer Mother for Psychiatric Treatment or Inform Mother of the Severity of her Psychiatric Diagnoses, The State did not Prove Prong Two of the Statute.

C. The State Failed to Provide Mother with Appropriate Services to Treat her Diagnosed Mental Illness and Therefore, the State Failed To Satisfy Prong Three of the Statute.

D. The Fourth Prong of the Statute Was Not Satisfied Since the Expert's Opinion was Not Stated to a Reasonable Degree of Psychological Certainty (Not Raised Below).

II. MOTHER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AND IS ENTITLED TO REVERSAL OF THE TRIAL COURT'S DECISION (Not Raised Below).

A. Defense Counsel Did Not Provide Effective Assistance of Counsel When He Failed to Object to Division's Exhibits.

B. Defense Counsel Did Not Provide Effective Assistance of Counsel When He Allowed Caseworkers to Testify, Without Objection, to Matters Outside of Their Perception.

C. Defense Counsel's Serious Errors Met the Strickland Standard for Ineffective Assistance of counsel.

With respect to her first contention, that DYFS did not establish by clear and convincing evidence the four elements of N.J.S.A. 30:4C-15.1, we disagree and affirm the judgment entered below substantially for the reasons stated by Judge Mendez in his written opinion of January 3, 2008.

Because parents have a fundamental liberty interest in the care of their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), they have a corresponding constitutional right to the effective assistance of counsel in connection with proceedings seeking to terminate their parental rights. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007).

In B.R., our Supreme Court explicitly adopted the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984), to analyze claims of ineffective assistance of counsel presented in the context of termination proceedings. 192 N.J. at 308-09. It summarized the test thusly:

(1) counsel's performance must be objectively deficient--i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense--i.e., there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

[Id. at 307 (citation omitted).]

The Court in B.R. recognized that certain claims of ineffective assistance of counsel in a termination proceeding could be resolved on the basis of the record in the direct appeal while others would require a remand to the trial court. Id. at 309-10. We are satisfied that this case fits within the first category and does not require a remand.

Defendant contends that her trial attorney was ineffective for not objecting to the admission of certain exhibits as hearsay and for not objecting to certain hearsay testimony presented by the two DYFS caseworkers.

Although we might agree that it would have been appropriate at certain junctures for P.G.'s attorney to interpose an objection to certain evidence, we are convinced that the failure to do so can in no way be interpreted as denying P.G. the effective assistance of counsel within the meaning of Strickland, supra, and B.R., supra. Even if those objections had been presented and even if they were sustained, there is no reasonable prospect on this record that the outcome of these proceedings would in any way have been different.*fn1

The judgment under review is affirmed.


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