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

June 14, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG 07-71-08.

Per curiam.



Argued May 10, 2010

Before Judges Reisner, Yannotti and Chambers.

Defendant T.H. appeals from a Family Part order dated October 29, 2008, terminating her parental rights to her twin children S.M.H. and J.H. We affirm.


To briefly summarize, the twins were born on January 29, 2006. Because hospital records indicated that T.H. had no prenatal care and might have limited resources, she was interviewed by a social worker, to whom she told a series of demonstrable falsehoods. That interview led to the involvement of the Division of Youth and Family Services (DYFS). The record would fairly support a conclusion that T.H.'s persistent refusals to cooperate with the most basic and reasonable inquiries and requirements, including giving an accurate home address, and later disappearing with the children, led to the children's placement in foster care.

There followed a series of incidents in which T.H. demonstrated a continued inability or unwillingness to take the steps needed to obtain reunification with her children. Psychological and psychiatric examinations produced recommendations that she was not able to parent her children and would be unable to do so in the foreseeable future. After two years in foster care, the children had not bonded with T.H. but they had bonded with their foster parents, who wanted to adopt them. Based on this evidence T.H.'s parental rights were terminated.*fn1

On this appeal, T.H. seeks to present herself as a fit parent victimized by an intransigent bureaucracy, which should never have become involved with her family in the first place. We conclude that the record does not support her characterization, and contains clear and convincing evidence that termination of her parental rights is in her children's best interests. We also find no merit in her contentions that she was unfairly denied representation by counsel or the opportunity to present expert evidence. To place the issues in perspective, we have set forth in some detail the record provided to us, including the series of hearings leading up to the guardianship trial and the trial itself.

A. Pretrial Proceedings

The transcripts provided to us begin in October 2007, after the Division filed the guardianship complaint. By this time the twins had been in foster care for over a year. At a hearing on October 25, 2007, T.H. appeared late, but when she appeared she confirmed that she was earning $32,000 per year. Judge Rothschild confirmed that she no longer qualified for representation by a public defender attorney and strenuously urged T.H. to retain a private attorney. Her former public defender attorney, who appeared that day as a courtesy to T.H. and the court, advised the judge that he had arranged for a defense psychological evaluation of T.H. The court directed T.H. to continue regularly attending scheduled sessions with her psychologist and to attend a bonding evaluation which DYFS would arrange. In T.H.'s presence the judge set the next hearing date for November 29.

On November 29, 2007, T.H.'s former public defender attorney appeared and provided T.H. with a copy of the defense psychological report from Dr. Silikovitz. T.H. told the judge that she had not retained counsel; the attorney she consulted wanted a retainer that T.H. could not afford. The judge suggested alternative sources from which she could obtain referrals to affordable counsel. At this hearing there was a suggestion that reunification might be appropriate if T.H. continued to make progress. In response to her request, the judge ruled that T.H. could have a day of unsupervised visitation with her children on their birthday, January 29, 2008, at her mother's home. She was also given dates for DYFS psychological and bonding evaluations.

At the next hearing on January 10, 2008, the DYFS attorney expressed concern that T.H. wanted her children to visit with the maternal grandmother, who had a substantial DYFS history. The judge indicated that the maternal grandmother was not to be present when T.H. was visiting with the children.

The next hearing was on January 28, 2008. At that time T.H. asked permission to hold the children's birthday party at the home of her cousin O.C., instead of at her mother's house. DYFS reported that due to an incident in which T.H. brought an unauthorized visitor to Final Stop, that agency was no longer willing to supervise her visits with her children. The DYFS worker indicated to the court that T.H. consistently resisted allowing the agency to inspect and evaluate her residence. In comments to the court T.H. strenuously objected to having her mother's home evaluated. The judge indicated to T.H. the extreme importance of her being truthful with the court and with DYFS, and that her misrepresentation of facts could cause the court to question whether she was capable of parenting. T.H. told the judge that she would be living with her cousin O.C. at an address on Hudson Street in Newark, until construction was finished at her mother's house. Initially, T.H. told the judge that she had arranged to take off the entire day from work the next day for her children's birthday party; however, when she was told the party would be supervised from 12 to 3 at the DYFS office, she represented that she was not sure she could get off from work but would try to "make it happen."

On February 14, 2008, the court held an emergent hearing, because of an incident that had occurred on the way to the scheduled bonding hearing on February 5, resulting in the bonding evaluation being canceled. The judge also advised T.H. that she should schedule Dr. Silikovitz to testify as soon as the court set a trial date. On being told that DYFS still needed to evaluate O.C.'s residence, because she was living there for the foreseeable future, T.H. became belligerent and told the judge she would not give DYFS the information it needed about O.C., such as his exact family connection to her. With exquisite patience, Judge Rothschild explained to T.H. why the agency needed to know the names of O.C.'s mother and any other relatives who might be living with him or be present in his home. T.H. again refused to give the information.

At this hearing, the judge also indicated to T.H. that the agency had provided him with copies of the DYFS records concerning her mother, and he offered to have copies made for her. In response to the judge's question, T.H. indicated that she had never been interviewed by DYFS in connection with the case concerning her mother. The judge asked her, "But what do I have in front of me? Is it a figment of someone's imagination?" T.H. responded that she had never been interviewed in Newark, stating "I've never been to Newark."

At the next hearing on February 28, 2008, T.H. confirmed that she had not attend the re-scheduled bonding evaluation because she was concerned that she would lose her job if she missed any more work. She also complained that the DYFS worker had unreasonably refused to take her to the February 5 bonding evaluation because T.H. had been feeding her child "applesauce in the car." The judge intervened and arranged for the bonding evaluator to give T.H. an appointment after her work hours. At that hearing DYFS also indicated that O.C. had not responded to their inquiries, and T.H. refused to give DYFS any information about him. However, T.H. advised the court that she had just gotten her own apartment on Norfolk Street in Newark, and the court directed DYFS to evaluate that home.

At the March 13, 2008 hearing, the Division agreed that T.H.'s new apartment had been evaluated and was "fine." The agency was also amenable to allowing supervised visitation in T.H.'s home. Once again, the judge strongly urged T.H. to retain an attorney. T.H. explained that since she worked in New York, and had limited amounts of leave time, it was difficult for her to attend mediation and other events in the middle of the day. However, she agreed to attend mediation.

On April 22, 2008, the judge held an emergent hearing to address T.H.'s request for visitation. DYFS asserted that on a recent visit, the new apartment had no furniture, no refrigerator, dishes or other amenities. The judge ordered another immediate evaluation of the home. Again the judge strongly and repeatedly urged T.H. to get an attorney and suggested that the clerk's office might be able to refer her to an affordable attorney. T.H. indicated no interest in these suggestions. Instead, she persisted in arguing with the judge about why her case had not been decided more quickly.

Again, at the hearing on April 30, 2008, Judge Rothschild urged T.H. to get an attorney. At this point, she had made some inquiries. He also urged T.H. to obtain her own bonding evaluation.

The case was transferred to Judge Callahan, who held a conference on June 25, 2008. He directed an updated psychiatric evaluation of T.H., and suggested that if she could not afford to produce Dr. Silikovitz to testify, he might consider the doctor's written report for some purposes.

On August 5, 2008, Judge Callahan held a permanency hearing. T.H., acting pro se, thoroughly cross-examined the case worker. DYFS sought termination of T.H.'s parental rights, because the children had been in foster care for two years and, in the opinion of the Division's experts, T.H. was still not able to act as the children's parent. DYFS also advised the court that the children had bonded with the foster parents, who wanted to adopt them. At this hearing, Judge Callahan approved the permanency plan. He also gave T.H. a stern lecture about the importance of appearing on time for court proceedings, which had been a persistent problem.

At the permanency hearing, T.H. told the court that she intended to call Dr. Silikovitz as a witness at the trial, which was to start on October 7. On September 8, 2008, the judge sent T.H. a letter explaining to her in plain language and in detail the steps she needed to take to obtain public funding to pay Dr. Silikovitz for his trial testimony. Subsequently, at the October 20, 2008 trial, the judge ruled that T.H. would not be able to introduce Dr. Silikovitz's report in evidence, because he had given her an opportunity to present the witness in person, with available funding from ...

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