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New Jersey Division of Youth and Family Services v. L.H.


December 31, 2009


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-171-08.

Per curiam.



Submitted November 10, 2009

Before Judges Fuentes and Gilroy.

This is an abuse and neglect action. Defendants L.H. and C.R. are the biological mother and father, respectively, of A.R., born November 2007. C.R. appeals from the March 3, 2009 dispositional order that dismissed the abuse or neglect complaint after the New Jersey Division of Youth and Family Services (DYFS) had filed a complaint for termination of parental rights. On appeal, C.R. challenges the trial court's June 25, 2008 fact-finding determination that he abused or neglected A.R.*fn1 The June 25, 2008 order also determined that L.H. had abused or neglected A.R., but she does not appeal. We affirm.


On November 28, 2007, DYFS filed a complaint alleging abuse or neglect against C.R. and L.H., seeking custody of A.R. pursuant to N.J.S.A. 9:6-8.21 to -8.73 and N.J.S.A. 30:4C-12. On February 6, 2008, the court conducted a compliance review hearing. Based on the court's review of DYFS's allegations in the verified complaint and the findings contained in defendants' psychological evaluation reports, the court ordered A.R. to remain in DYFS's care and custody.

On March 19, May 21, and June 25, 2008, the court conducted its fact-finding hearing. On the last day of the hearing, the court entered an order determining that both parents had abused or neglected A.R. On November 12, 2008, the court conducted a permanency hearing and approved DYFS's plan for termination of parental rights followed by adoption. On March 3, 2009, after DYFS filed its termination complaint, the court entered an order dismissing the abuse or neglect complaint and directed that A.R. remain in the legal and physical custody of DYFS pending the termination proceeding.


On June 23, 2005, DYFS first became involved with L.H. and her older daughter, K.W.H., born July 2003, when DYFS received a referral that L.H. had failed to properly care for K.W.H. C.R. is not the biological father of K.W.H. For the next two years, DYFS provided multiple services to L.H. and K.W.H. During this time, C.R. resided with L.H. and K.W.H. On January 6, 2006, because of its concern for K.W.H.'s safety and well-being, DYFS removed her from L.H.'s care and placed her in an approved resource home. Three days later, DYFS filed a complaint for custody of K.W.H. On March 30, 2007, DYFS filed a complaint for guardianship on behalf of the child.

On May 3, 2007, L.H. informed a DYFS Assistant Family Service Worker (AFSW) that she was pregnant, and the baby was due in November 2007. In the morning of August 2, 2007, an AFSW arrived at L.H.'s home to transport her to a scheduled medical appointment. C.R. answered the door and informed the AFSW that L.H. had gone to the emergency room because she was not feeling well. The worker observed that C.R. smelled of alcoholic beverages. On September 2, 2007, DYFS referred C.R. and L.H. for substance abuse evaluations, having received an anonymous report that L.H. had been drinking during her pregnancy.

On September 7, 2007, the AFSW received the telephone call from L.H. requesting that someone come to her apartment to settle a dispute between her and C.R. The AFSW arrived at the apartment at approximately 3:40 p.m. and observed C.R. pulling L.H. "roughly by her shirt" in the backyard of the apartment building. The AFSW observed alcoholic beverages in the yard and described C.R. as "very intoxicated," with sluggish speech and smelling of alcohol.

On October 30, 2007, C.R. pled guilty to the disorderly persons offense of simple assault for striking L.H. in the stomach. As part of his sentence, the municipal court directed C.R. to complete an alcoholic rehabilitation program at the Princeton House Behavioral Health Care facility. Although C.R. immediately began treatment at Princeton House, he stopped attending upon the birth of A.R.; however, C.R. returned to treatment on December 6, 2007, completing the program on January 7, 2008.

In November 2007, L.H. gave birth to A.R. at the Robert Wood Johnson Hospital. A.R., born prematurely, was placed in the hospital's neonatal intensive care unit because of breathing problems. A.R. was also born with a kidney problem for which she receives medication to prevent infection and may need an operation in the future.

In the interim, L.H. executed a voluntary identified surrender of L.W.H. in favor of the child's caretaker. On November 28, 2007, DYFS filed the abuse or neglect complaint seeking custody of A.R. On January 22, 2008, Dr. Karen Wells, Ph.D. conducted psychological evaluations of C.R. and L.H. on behalf of DYFS.

On February 6, 2008, the court conducted a compliance review. On that date, the court entered an order directing, among other things, that: 1) A.R. was to remain in the physical custody and care of DYFS; 2) C.R. was to submit to psychological and substance abuse treatment at the Raritan Bay Medical Center; 3) C.R. was to attend parenting skills training at Multicultural Community Services, Inc. (MCS), and to cooperate with all other services offered by that agency; and 4) DYFS was to provide C.R. supervised visitation with A.R., as arranged by MCS.

On March 19, 2008, the court commenced its fact-finding hearing. On that day, DYFS placed certain exhibits into evidence, including Dr. Wells's sixteen-page psychological report of C.R., and the February 28, 2008 letter from the United States Social Security Administration (SSA) confirming C.R.'s receipt of Social Security and Supplemental Security Income benefits. Dr. Wells's report indicated that she conducted her evaluation of C.R. "to assess his cognitive, intellectual, psychological and emotional functioning as it relates to his ability to provide appropriate and effective parenting of his daughter, [A.R.], born [November 2007]." In the report, Dr. Wells discussed C.R.'s prior involvement with the legal system that included C.R.'s admission of serving a five-month jail term for assaulting a police officer and was presently on probation for having committed an act of domestic violence against L.H. In addition to his prior criminal history, C.R. self-reported his history of psychiatric issues and treatment:

In addition to his involvement with the police, [C.R.] also has a psychiatric history. Informing that he has been diagnosed with Schizoaffective Disorder and anxiety, [C.R.] related that his most recent psychiatric hospitalization was in March 2006. Hospitalized for eight days at Trenton Psychiatric Hospital, prior to this hospitalization, [C.R.] had been in[-]patient at Princeton House for seven days in January 2006. He also stated that he was hospitalized at Bellevue while living in New York, sharing that this occurred for a month in 2002. [C.R.] explained, however, "I was homeless and it was cold outside. I just wanted them to help me get into a program." [C.R.] stated that following this hospitalization, he "got into a drug and alcohol program." [C.R.] shared that he became homeless after he lost his apartment. Elaborating, he explained, "I was drinking. I was doing drugs, smoking weed and taking these pills. I don't even know the name of them . . . . Those pills make you crazy. I thought I was Jesus Christ. I was walking down the street. The cops stopped me, I told them I was Jesus Christ . . . ." [C.R.] shared that he has been diagnosed with Schizoaffective Disorder, a psychiatric condition indicating significant psychopathology. While there were no indications of symptoms displayed during the current evaluation, [C.R.] informed that he had been hospitalized on more than one occasion to address mental health concerns. . . .

There is reason to believe that at least a moderate level of pathology characterizes [C.R.'s] overall personality organization. Defective psychic structures suggest a failure to develop adequate internal cohesion and a less than satisfactory hierarchy of coping strategies. [C.R.'s] foundation for effective intrapsychic regulation and socially acceptable interpersonal conduct appears deficient or incompetent. He is subject to the flux of his own enigmatic attitudes and contradictory behavior, and his sense of psychic coherence is often precarious. [C.R.] has a checkered history of disappointments in his personal and family relationships. Deficits in his social attainments may also be notable as well as a tendency to precipitate self-defeating vicious circles. Earlier aspirations may have resulted in frustrating setbacks and efforts to achieve a consistent niche in life may have failed. While [C.R.] is usually able to function on a satisfactory basis, he may experience periods of marked emotional, cognitive, or behavioral dysfunction.

. . . . [C.R.] attempts to maintain an image of cool strength, courage, and manliness. Such behaviors as courting danger and punishment and being unsentimental and competitive are viewed with pride. More significantly, [C.R.] may display a rash willingness to risk harm, and he is notably fearless in the face of threats and punitive action. In fact, there are occasions when punishment only reinforces his rebellious and hostile feelings. Malicious tendencies seen in others are used to justify his own aggressive inclinations and may lead to frequent personal and interpersonal difficulties and to occasional legal entanglements. Antisocial behavior, alcoholism, or drug problems may be prominent.

. . . [C]arrying a chip-on-the-shoulder attitude, [C.R.] exhibits a readiness to attack those he distrusts. If he is unsuccessful in channeling these omnipresent aggressive impulses, his resentment may mount into periods of manic excitement or into acts of brutal hostility. Moreover, when crossed, subjected to minor pressures, or faced with potential embarrassment. [C.R.] can be provoked to abandon responsibilities with minimal guilt or remorse. . . . [He] is impetuous and imprudent, throwing caution to the winds, driven by a need for excitement and an inability to delay gratification, with minimal regard for consequences. [C.R.] appears to have a poor prognosis for staying out of trouble.

There is no clinical information to suggest that [C.R.] is or will, in the foreseeable future, be able to provide even minimal parental care for [A.R.], with marked and pervasive dysfunction and impairment in the psychological, emotional, and cognitive realms. His personal and interpersonal functioning evinces significant psychopathology, with a need for long-term treatment, use of psychotropic mediations, and ongoing monitoring. [C.R.'s] capacity to sustain[] adequate and autonomous functioning is greatly lacking, with a poor prognosis that change will occur sufficient to even independently meet his own needs.

Clearly, his inability to meet [] the needs of a child are apparent, with grave and serious risk of harm highly likely if a child were to be placed in his care.

The concerns expressed relative to [C.R.] are pervasive and chronic and highly unlikely to change, even with ongoing treatment . . . .

. . . [M]oreover, as there is no information to suggest that these difficulties are subject to change, it is recommended that [DYFS] would strongly consider permanency independent of [C.R.]. As it is the clinical impression of the present examiner that [C.R.] does not even minimally possess the cognitive, psychological or emotional functioning to assume parental care for [A.R.], it is concurrently offered that any stipulation that he would engage in treatment services to facilitate unification will only result in a false sense of hope.

On May 21, 2008, Dr. Wells testified as to her evaluations concerning both C.R. and L.H. As to C.R., Dr. Wells opined:

In regard to [C.R.], there were concerns of -- specific to substance abuse, domestic violence, anger management, and, as well as more significant [psychopathology] of a psychiatric nature. He reported delusional material that may have been as a result of a substance-induced basis, [p]oli- substance abuse, not solely . . . utilizing alcohol.

A history of homelessness; difficulty in social relationships; lack of appropriate familiar supports, [or] natural supports, independent of family; difficulties intellectually and cognitively that preclude his ability to also parent.

And also, concerns as relates to his ability to respond to services, in that he does not see himself as presenting with any need. And so any interventional efforts on the part of others to inform, advise, or to assist are seen as not necessary by him.

Therefore, the ability to accommodate the treatment and to utilize it, in the absence of recognizing that there are deficits and problems, would be of no existence for him.

When asked "what type of risk of harm would befall a child if placed in [defendants'] care," the doctor stated:

The risk of harm would be both intentional and unintentional. In the presence of domestic violence, of course, a minor child would not be able to safeguard his or her well-being.

The inability to protect oneself as a parent, of course, precludes the [ability] to protect a . . . minor child.

The doctor continued:

When [C.R.] is enraged, he is not able to pull back and to adequately make decisions that would safeguard a child. And so . . . neither parent would be able to provide a safe environment for the child. That's at a very practical level.

The unintentional harm, I don't think that either would attempt to deliberately harm, but the . . . unintentional harm: the lack of judgment, of sound judgment, of ability to follow through, ability to benefit from treatment services, and the extent and nature of the deficits indicate that there would be risk posed, because there would be a gap between what is necessary to do and how to do what is necessary to do.

Lastly, when questioned whether C.R. or L.H. were independently capable of parenting A.R., the doctor stated: "I'm saying, . . . [A.R. is] now a six-month old. Not only both parents, but either parent, . . . would not be able to safely care for the child." Stated differently, the doctor explained that each parent has individual deficiencies that would place A.R. at a significant risk of harm.

On June 25, 2008, L.H. testified on her own behalf; defendant did not. On that day, finding the testimony of Dr. Wells credible, the court entered an order determining that both parents had abused or neglected A.R. The order provides in part:

[B]y a preponderance of the evidence [L.H.] and [C.R.] abused or neglected the [child] in that [L.H. would require continuous supervision to parent the [child] according to Dr. Wells. [C.R.] has a history of schizophrenia. According to the expert opinion of Dr. Wells and Social Security records, both defendants lack the ability to adequately parent [A.R.] due to mental illness and cognitive deficits.

On July 31, 2008, MCS terminated C.R. from its services because of non-compliance. Following that termination, DYFS undertook to arrange for his supervised visitations with A.R. On September 4, 2008, C.R. requested a visit with A.R. DYFS transported A.R. to the agreed-upon meeting place. However, "[a]fter an hour of waiting, [DYFS] returned [A.R.] to daycare because [C.R.] never showed or called to cancel the visit."

On October 28, 2008, DYFS sent a letter to the court requesting that C.R.'s visitation be suspended because of his belligerent behavior. Specifically, the letter stated:

Most recently during the October 24, 2008 visit, [C.R.] was reported to reek of alcohol. This was grounds to cancel the visit; however, a decision was made to allow the visit to continue with hopes that [C.R.] would not escalate to another level if being told the visit would be terminated. Supervisor Fred Brown spoke with [C.R.] in [an] effort to deescalate the situation[;] however, [C.R.] became more upset and continued to yell and curse because his father could not be part of the visit.

Additionally, C.R. was arrested by the South River Police Department on August 7, August 20, and September 18, 2008, the latter police report indicating that C.R. was highly intoxicated.

On November 5, 2008, C.R. telephoned the assigned DYFS caseworker, leaving a voicemail stating that he wanted to "sign" his parental rights away. The caseworker confirmed with the Raritan Bay therapist assigned to C.R. that C.R. was not in compliance with his scheduled treatment. Specifically, although C.R. began treatment in February 2008, he had only attended six appointments since that time, and had not appeared for his appointments on August 13, August 27, and October 14, 2008.

On November 12, 2008, the court conducted a permanency hearing. At that hearing, DYFS caseworker Kristen Kienle testified as to the various services provided to C.R. including alcohol treatment, parenting skills, mental health treatment and supervised visitations. After determining that DYFS had provided reasonable opportunities and services to the parents and that the parents had failed to comply with those services, the court approved DFYS's plan to terminate the parental rights of C.R. and L.H. to A.R., with A.R. to be adopted by her caretaker. On February 17, 2009, the court ordered DYFS to file for guardianship.


On appeal, defendant argues that the trial court erred: 1) in relying upon a letter from the SSA in its determination that he suffered from certain psychiatric diagnoses and could not properly parent A.R.; 2) in approving the permanency plan because DYFS had failed to prove that it made reasonable attempts to provide services or reunite the child with him; and 3) by failing to consider Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, as an alternative to termination of parental rights.

Our review of the trial judge's fact-finding is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Such deference "is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

A fact-finding hearing is defined as "a hearing to determine whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. "'[T]he fact-finding hearing is a critical element of the abuse and neglect process.'" N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 264 (App. Div. 2002)). The hearing is required to "inquir[e] 'into the surroundings, conditions, and capacities of the persons involved in the proceedings.'" Id. at 163-64 (quoting N.J.S.A. 9:6-8.48b).

An abuse and neglect determination must be proven by a preponderance of the evidence standard. N.J.S.A. 9:6-8.46b; J.Y., supra, 352 N.J. Super. at 262. A finding that a parent abused or neglected his or her child, as contemplated by N.J.S.A. 9:6-8.21, may be supported by demonstrating that the parent engaged in one of seven acts defined therein. N.J.S.A. 9:6-8.21c(4) states that an "abused or neglected child" includes:

[A] child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.

At a fact-finding hearing, DYFS may prove abuse or neglect through its business records. See N.J.S.A. 9:6-8.46(a)(3) (providing that DYFS's records are admissible on finding that the records were made in the regular course of business); see also In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). Once the records are introduced pursuant to N.J.R.E. 803(c)(6) and 801(d), the "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d).

As stated, N.J.S.A. 9:6-8.21(c)(4) provides that a finding of abuse or neglect may be determined where a child's physical, mental, or emotional condition "has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent . . . to exercise a minimum degree of care." (Emphasis added). Accordingly, "[c]courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect" before determining a violation of the statute. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).

The standard of "minimum degree of care" under the abuse or neglect statute "refers to conduct that is grossly or wantonly negligent, but not necessarily intentional." G.S. v. Dep't of Human Servs., 157 N.J. 161, 178 (1999). Therefore, "a guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." Id. at 181. What is more, "a psychiatric disability can render a parent incapable of caring for his or her children." N.J. Div. of Youth & Fam. Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008); see also N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418, 439 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). It is against these principles that we consider C.R.'s contentions.


C.R. argues that the trial court not only erroneously admitted the SSA's letter of February 28, 2008, but also improperly relied upon the contents of that letter concerning C.R.'s mental health disorders in making its fact-finding determination that C.R. had abused or neglected A.R. We agree.

A trial court's determination of abuse or neglect must be based on "competent[,] reliable evidence" in the record. J.Y., supra, 352 N.J. Super. at 265; N.J.S.A. 9:6-8.46b(2). Hearsay, "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," N.J.R.E. 801(c), "is not admissible except as provided by [the Rules of Evidence] or by other law." N.J.R.E. 802.

Here, the SSA letter, while confirming that C.R. received Social Security and Supplemental Security Income benefits, also indicated that the benefits were paid because C.R. was not able to maintain gainful employment because of mental health issues. The letter stated in part: "The latest medical review was conducted 12/07. [C.R.'s] latest medical diagnosis was schizophrenic, paranoid and other functional psychotic disorders."

We are satisfied that the trial court erred in admitting the SSA letter, which had been proffered by DYFS for the purpose of introducing evidence of C.R.'s mental health. The admission of that letter to prove DYFS's assertions as to C.R.'s mental health disorders violated N.J.R.E. 802. Indeed, DYFS does not cite to any exception to the hearsay rule justifying the admission of the letter. Additionally, even if the letter itself was admissible under some exemption to the hearsay rule, the medical diagnosis by an unknown third party contained therein would not be admissible. N.J.R.E. 805.

Nonetheless, even without the admission of the SSA letter, we are satisfied that there was other sufficient, credible evidence in the record supporting the trial court's determination of abuse or neglect. In addition to the SSA letter, the court admitted DYFS's reports pursuant to Rule 5:12-4(d), and the opinion of Dr. Wells as proffered in her written report and oral testimony.

Dr. Wells evaluated C.R. on January 22, 2008, utilizing a clinical interview process and multiple testing instruments. Although Dr. Wells did not consider C.R.'s prior medical records in her evaluation, she did consider C.R.'s statements concerning his prior medical history, including his psychiatric hospitalizations and diagnoses. She diagnosed C.R. as suffering from "Schizoaffective Disorder (self-reported, previously diagnosed)[,] Alcohol Dependence, Early Full Remission (self-reported)[,] Generalized Anxiety Disorder[,] Domestic Violence (perpetrator)[,] Partner Relational Problems[, and] Adult Antisocial Behavior[.]" Dr. Wells also gave C.R. rule out diagnoses of "Impulse Control Disorder" and "Intermittent Explosive Disorder." Additionally, she diagnosed C.R. as suffering from an anti-social personality disorder and a narcissistic personality disorder.

Dr. Wells opined that C.R. was "likely to pose risk to any child placed in his care, with increased likelihood of harm when stress is present." When questioned whether C.R. would be able to parent in the future if he remained alcohol free, Dr. Wells stated that she would need to see compliance and abstinence of C.R. for a "minimum of 18 months to 2 years" before she would be satisfied that his problems were under control.

Dr. Wells's opinions are supported by the results of the testing instruments she had used when conducting her evaluation, by C.R.'s self-reporting, and by C.R.'s failure to address his alcohol-abuse problem during the pendency of the action. Although C.R. completed the alcohol rehabilitation program at Princeton House on January 7, 2008, enrolling in the program as part of his sentence after pleading guilty to assaulting L.H. while pregnant, he continued to abuse alcohol and engage in disorderly conduct, which resulted in several arrests prior to the permanency hearing. These actions countermand C.R.'s contention that he no longer requires treatment for alcohol abuse.

C.R. argues next that the court erroneously determined it was necessary to remove A.R. from his custody because she was in imminent danger as a result of his inability to exercise a minimum degree of care for A.R. because of his mental health disorders and abuse of alcohol. C.R. contends that the trial court should not have relied upon Dr. Wells's opinions in reaching its determination that he suffers from various mental disorders, which are exacerbated by his consumption of alcohol.

C.R. asserts that the court mistakenly considered Dr. Wells's opinions because Dr. Wells had not reviewed his prior medical records. We disagree.

We are satisfied that Dr. Wells's opinions are amply supported by her personal evaluation of C.R., her administration of the various testing instruments, C.R.'s self-reporting, and her review of DYFS's records. C.R.'s contention goes to the weight of Dr. Wells's opinions, not to the admissibility of her opinions.

C.R. argues in Point II that the trial court erred in approving DYFS's permanency plan for termination of parental rights followed by adoption, contending that DYFS failed to show that it made reasonable efforts to provide him with necessary social services to reunite him with A.R. C.R. argues in Point III that the trial court erred by not considering KLG as an alternative to termination of his parental rights. We determine these arguments are without merit. R. 2:11-3(e)(1)(E).

The record shows that DYFS provided A.R. with reasonable support services, but A.R. failed to comply. For example, C.R. requested visitation with A.R. and after DYFS scheduled the visitation, C.R. neither appeared nor telephoned DYFS to explain his absence. DYFS arranged for psychological and substance-abuse treatment at the Raritan Bay Medical Center, but C.R. stopped treatment after a few visits. Lastly, KLG is only a viable alternative when adoption is neither feasible nor likely to occur. N.J. Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 509 (2004).


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