On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-58-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2010
Before Judges Axelrad, Fisher and Espinosa.
In this appeal, we chiefly consider whether the evidence adduced at trial was sufficient to support the judgment terminating the parental rights of defendants S.Y. and C.Y. to their two children, J.Y. and L.Y. We also examine the claims of error in the proceedings that followed our recent remand, which was permitted so that the trial court could consider whether the foster parents' subsequent divorce and other alleged changed circumstances warranted a vacation or modification of the judgment. And we consider defendant C.Y.'s claim that she was denied the effective assistance of counsel at the remand hearing. We reject all defendants' arguments and affirm.
We need not describe in detail the many facts which the trial court considered. We instead provide a brief summary of the cogent facts in determining that the judge's findings were well-supported by the evidence.
The involvement of plaintiff New Jersey Division of Youth and Family Services (the Division) with this family began five days after the birth of the oldest child, L.Y. The Division then substantiated that, on June 10, 1996, defendant S.Y. had dropped the five-day old L.Y. on his head. The Division provided a home health aide and a homemaker as well as counseling for both defendants. The Division closed its case the following year when defendants moved out of the State.
Defendants' second child, J.Y., was born on February 22, 1999. The record reveals that both children have special needs -- both have been diagnosed with Attention Deficit Hyperactivity Disorder, and L.Y. has been diagnosed with Asperger's Syndrome -- and see a psychiatrist on a monthly basis for medication monitoring and counseling. They also receive speech and occupational therapy.
In March 2000, the Division received a referral alleging that the children would often be dirty, unfed and clad in dirty clothes when arriving at daycare. In investigating, the Division found their home was "filthy" and had a "horrible stench." The Division reopened its file and provided counseling services, as well as a cleaning service.
In March 2003, a school nurse made a referral, which was substantiated, that seven-year old L.Y. had large bruises on his back as a result of being hit with a belt by his father. Later that year, the school nurse again contacted the Division and reported that a witness had seen, on three separate occasions, defendant S.Y. dragging a screaming L.Y. across the school parking lot. On one occasion, S.Y. dragged L.Y. to the ground, yanked him up, and then slapped his head several times. The Division's investigation revealed that the "entire house had a smell of urine" and there was "food trash and other garbage strewn about the entire house." A plastic grocery containing dirty diapers was found hanging on a door knob; most of the rooms had no working lights. Both boys shared a soiled mattress that lacked sheets. J.Y., who was then four years old, was observed wearing a diaper. L.Y. revealed that his father hit him in the face with a belt.
Allegations of physical abuse by S.Y. and allegations of the neglect of both defendants were substantiated. The Division conducted an emergency removal on December 8, 2003, and commenced Title 9 proceedings the next day, seeking a determination that the children had been abused or neglected while in defendants' custody. The judge entered an order granting the Division custody of the children. Due to the family's religious faith, the Division temporarily placed the children with a Hasidic Jewish family in their Lakewood community.
On April 8, 2004, defendants stipulated that the condition of their home placed the children at risk of harm pursuant to N.J.S.A. 9:6-8.12. The court then ordered both parents to comply with a host of services. From 2004 to 2007, various services were provided, including psychological and psychiatric evaluations, ongoing individual counseling, therapeutic and supervised visitation, bonding evaluations, parenting classes and anger management classes. The children were also provided services, including psychological and psychiatric evaluations, counseling, visitation, specialized schooling, summer camps, behavioral assistants, sibling visits (for the time they resided in separate foster homes), and sexual abuse counseling.
The Division filed its first guardianship action on January 12, 2006. Following a trial, the judge ruled that the Division failed to meet the requirements of N.J.S.A. 30:4C-15.1a(3) because it had not provided sufficient visitation. The judge declared that the permanent plan for the children was reunification and ordered therapeutic visitation.
On January 23, 2007, during a psychiatric examination, J.Y. spontaneously disclosed that he had been sexually abused. Both children made other disclosures of sexual abuse. On May 21, 2007, the judge ordered that termination of parental rights followed by adoption was an acceptable permanency plan, and the Division commenced a second guardianship action on June 29, 2007.
The second termination trial took place on three nonconsecutive days in October and November 2007. The Division called as witnesses its caseworker and Dr. Chester Sigafoos, who conducted psychological evaluations of defendants, psycho-sexual evaluations of the children, and bonding evaluations. The Law Guardian called as a witness, D.Z., the children's foster mother.*fn1 Defendant C.Y. testified on her own behalf and called as a witness, Rabbi Larry Freundlich, who testified about Jewish traditions, to demonstrate that the children's allegations of sexual abuse may have related to some confusion regarding the mikvah.*fn2 During the trial, defendants objected to the admission of statements attributed to the children by the caseworker, Dr. Sigafoos and the foster mother. The judge heard the testimony but permitted defense counsel to renew their arguments at the end of the case.
The judge rendered an oral decision over the course of two days. On the first day, the judge rejected defendants' objections to the hearsay statements attributed to the children for three reasons. She found the statements: (1) showed a course of conduct and were not offered to prove the truth of the matter; (2) were admissible pursuant to the fresh complaint doctrine, citing State v. Bethune, 232 N.J. Super. 532 (App. Div. 1988), aff'd, 121 N.J. 137 (1989); and (3) were trustworthy because they were offered by mental health professionals in the course of conducting evaluations and because the statements of abuse were revealed not on a single occasion but over a course of time. On the second day, the judge explained in detail why she found that the Division proved all four prongs of N.J.S.A. 30:4C-15.1a, by clear and convincing evidence.
A judgment terminating defendants' parental rights was entered on January 31, 2008.
Both defendants appealed, arguing the evidence was insufficient to support the judgment. Specifically, defendant C.Y. asserts that the Division failed to prove all four prongs of the statutory test; defendant S.Y. attacks only the judge's ...