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New Jersey Division of Youth and Family Services v. D.T.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 27, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,
PLAINTIFF-RESPONDENT,
v.
D.T.B., DEFENDANTS-APPELLANTS,
IN THE MATTER OF THE GUARDIANSHIP OF S.M.B. AND T.J.G., MINORS.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
I.G.
DEFENDANT-APPELLANT,
IN THE MATTER OF THE GUARDIANSHIP OF T.J.G., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-229-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 29, 2010 -- Decided December 27, 2010

Before Judges Rodriguez, C.L. Miniman and LeWinn.

In these consolidated appeals, birth mother D.T.B. challenges the termination of her parental rights to her three-year-old daughter S.M.B. and two-year-old son T.J.G. Birth father I.G. appeals from the termination of his rights with respect to T.J.G. The birth father of S.M.B. is unknown. The children have no other siblings. We affirm.

The testimony and other evidence adduced at trial reveals that the New Jersey Division of Youth and Family Services (DYFS) became involved with the family on March 24, 2007, the day after S.M.B.'s birth. Newark Beth Israel Medical Center brought the birth to DYFS's attention because of a concern about D.T.B.'s psychiatric condition. She had been treated at the same hospital for psychiatric issues.*fn1 Hospital social workers called DYFS because they were concerned about the danger to the well-being of the newborn presented by D.T.B.'s condition. DYFS placed S.M.B. in foster care.

Between May 2007 and May 2008, DYFS referred D.T.B. to nine different "Mentally Ill Chemically Addicted" (MICA) programs. These placements were not successful in dealing with D.T.B.'s problems. She began visitation with S.M.B. in May 2007. However, four months later, D.T.B. smashed a glass door at DYFS's office with her head. In addition, Sonia Oquendo, M.D., a psychiatrist, suspected that D.T.B. was not taking her medication. Therefore, visitation was suspended.

About one year after the birth of S.M.B., on March 19, 2008, T.J.G. was born. Once again, the hospital's social workers made a referral to DYFS. Visitation with S.M.B. was then restored. D.T.B. and I.G. regularly attended visits with both children together. However, shortly thereafter, problems arose during visitation. D.T.B. and I.G. came to DYFS's office for a visit. They were placed in the visitation room. While waiting for the caseworker to bring the children, D.T.B. and I.G. copulated in the visitation room. Thereafter, D.T.B. and I.G. were given separate visitation schedules.

Three months later, D.T.B. punched the caseworker supervising her visit. In another visit, D.T.B. tried to feed chocolate to S.M.B., who was a little over one-year old. On a July 2008 visit, she attempted to dress the children in Christmas outfits. Visitation was again suspended.

From April 2009 throughout the trial of this matter, D.T.B. was jailed for assault. D.T.B. had struck a woman in the head with a bottle at a bus stop because D.T.B. suspected the woman had a romantic interest in I.G.

I.G. told a DYFS caseworker that he could not plan for or take care of the children, and that he would not separate from D.T.B. He was referred for parenting skills classes and counseling. He did not go. From December 2008 until approximately March 2009, I.G. was also jailed. While at large, I.G. visited T.G.J. consistently every week until October 2009. Then he stopped. According to the caseworker, their visits went well. His interaction with T.J.G. was described as "loving." I.G. also requested visits with S.M.B., stating that although she is not his biological daughter, he still considered himself to be her father.

Mark Singer, Ed.D., a psychologist, evaluated D.T.B. He reported that she told him that she was homeless and lived along a highway in Newark. She did not know the date or the name of the President. D.T.B. disclosed to him that she had been diagnosed with bipolar disorder. According to Dr. Singer, D.T.B. does not recognize the need for medication. For that reason, she would stop taking medication once she felt better.

Dr. Singer opined that D.T.B. had "paranoid ideation" and focused on painful experiences. In addition, "[t]he test data suggest that [D.T.B.] is experiencing a significant mental disorder involving delusions, paranoid ideation, apparent psychosis, and aggressive/impulsive behavior." D.T.B. also "appears to have a significant substance abuse or dependency problem."

Alexander Iofin, M.D., a psychiatrist, also evaluated D.T.B. At the evaluation, D.T.B. was psychotic and under the influence of illegal substances. The evaluation also revealed that D.T.B. had suicidal tendencies.

In his September 2009 report, Dr. Iofin found D.T.B. to suffer from a "delusional behavioral pattern." He further opined that:

She without a doubt is suffering from very significant neurodegenerative disorder, which is Schizoaffective Disorder, Bipolar Type, where morphological substract of such condition consists of premature death of multiple nerve cells (neurons) in the gray area of the brain, and significant imbalance in neurotransmitters, with significant abnormalities in neuroreceptors in the brain.

Dr. Iofin also opined that D.T.B. will be unlikely to comply with a MICA program unless she is observed twenty-four hours a day. She will continue to have a "moderate to severe" psychiatric impairment. She will likely not continue to take medication on her own.

Dr. Singer also evaluated I.G. According to Singer, I.G. is a secretive individual who minimizes his personal faults and has an unrealistic positive perception of his psychological functioning. He lacks understanding of D.T.B.'s mental health issues and would be unable to protect a child from D.T.B.'s behavior should the need arise. There is a history of domestic violence between D.T.B. and I.G. He also "lacks the emotional and physical resources needed to parent any child."

Furthermore, Dr. Singer found that I.G. "appears to be experiencing some type of thought disorder that results in a distortion of reality." Dr. Singer found I.G. has a personality that will compel him to "cling" to D.T.B. In addition, the domestic violence between D.T.B. and I.G. may cause the children emotional harm if they were to witness it.

Based upon these findings, Singer opined that, even with the help of services, neither D.T.B. nor I.G. were capable of parenting their children, nor would they become so in the foreseeable future. Moreover, he concluded that placing the children with their parents would put them at significant risk of harm.

S.M.B. is in a different foster home than her brother. She has had only one placement in her life. S.M.B. is seen by a mental health professional regularly. S.M.B.'s foster parent has wavered on whether to adopt S.M.B. due to the high possibility that she may inherit some of her parents' mental illnesses. However, at the time of trial, the foster mother committed to adopting S.M.B. T.J.G. also has had only one foster placement since birth.

I.G. offered his mother as a placement for T.J.G. However, DYFS determined that she was not suitable because in the mid-1980s, she was found to have abused or neglected a child. I.G. also offered his brother, S.G., as a placement. S.G. testified that he is aware of the issues with D.T.B. and I.G. He stated that he would rather adopt T.J.G. than seek kinship legal guardianship. At the time, S.G. was in the final year of undergraduate studies at a university in Michigan. He works part-time at the university as a religious counselor. S.G. plans to continue post-graduate studies.

S.G. first offered himself as a placement in March 2009 and since then has visited T.J.G. six times. He located a daycare on campus that would accept T.J.G. He also located a counselor who would assist with any distress T.J.G. experiences.

However, as part of the permanency plan for T.J.G., Judge Callahan ruled that S.G. is no longer to be considered for placement. The judge stated that, by virtue of his residency in Michigan, S.G. would be unable to attend visits at a high frequency in New Jersey, which would impede T.J.G.'s transition from his foster home.*fn2

Both birth parents gave brief testimony. D.T.B. testified that she hopes S.M.B. finds "a loving family" through DYFS. As to T.J.G., she testified that she would like him to be adopted by S.G. I.G. conceded that he is not in a position to assume custody of T.J.G. He hopes that his son will be adopted by S.G.

Judge Callahan terminated D.T.B.'s parental rights to both children. The judge also terminated I.G.'s parental rights to his son and awarded guardianship to DYFS. The judge denied I.G.'s motion for post-termination visits. In an oral opinion dated December 21, 2009, Judge Callahan found that it was unsafe to maintain D.T.B.'s parental relationship with her children because she has significant psychiatric and substance abuse issues that she has not resolved, and she remained incarcerated and unavailable to care for them. Judge Callahan also found that it was unsafe to maintain I.G.'s parental relationship to T.J.G. because of his mental health issues, inability to protect him from his mother and his unemployment and homelessness.

Thus, he was unable to provide a stable and safe environment for T.J.G. Both D.T.B. and I.G. admitted that they are unable to parent the children and did not wish to do so.

The judge also found that DYFS had made reasonable efforts to provide services, and had considered alternatives to the termination of parental rights. DYFS provided early intervention services to the children, as well as evaluations. It provided D.T.B. with referrals to various programs; psychological and psychiatric evaluations; transportation assistance; drug assessments; referrals for housing; public assistance referrals; visitation when appropriate; and assessment of relative resources. None of these worked.

DYFS provided I.G. with psychological and psychiatric evaluations; referrals for domestic violence counseling; referrals for individual counseling and parenting classes; visitation; transportation assistance; and assessment of relative resources. As in the case of D.T.B., these resources made no impact in the core problems of the birth parents: psychological issues, homelessness, addiction and unemployment.

The judge found that DYFS had not been diligent in assessing S.G. as a potential placement for T.J.G. However, the judge reasoned that placing T.J.G. with S.G. would not be in the child's best interests because any transfer of the child must be gradual, with extensive and regular contact with the new caregiver. S.G.'s "scholastic and employment obligations" render that "an impossibility."

Finally, the judge found based on the facts and expert testimony that termination of parental rights would not do more harm than good to these children. The children required permanency and stability, and neither D.T.B. nor I.G. could provide it. Moreover, the children were bonded with their foster parents, and had no bond with the birth parents. Therefore, the judge concluded that it was in the children's best interests that parental rights be terminated.

D.T.B. and I.G. appeal. DYFS and the Law Guardian urge affirmance.

SUFFICIENCY OF PROOFS

On appeal, D.T.B. and I.G. raise similar contentions; i.e., that the elements of N.J.S.A. 30:4C-15.1 were not proven by clear and convincing evidence. We disagree.

The standard for termination of parental rights and our standard of review are well-settled. Pursuant to N.J.S.A. 30:4C-15.1(a), DYFS must prove that the "best interests of the child" require termination by considering a four-prong test. In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999); see also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166-67 (2010); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506-07 (2004). The prongs are that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances, which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a)]

A post-trial judgment in a non-jury case shall not be overturned except where, after a careful review of the record and weighing of the evidence, the appellate court determines that "continued viability of the judgment would constitute a manifest denial of justice." In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)). We will "not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Credibility assessment and weight of the evidence are issues within the exclusive province of the trier of fact. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (citing State v. Johnson, 42 N.J. 146, 161 (1964)).

Here, applying our review standard against the proofs and the requirements of N.J.S.A. 30:4C-15.1(a), we conclude that they support the judge's findings that all four prongs of the statutory test had been proven by clear and convincing evidence. In short, proof of the relevant factors was ample to support the termination of the parental rights of D.T.B. and I.G.

IG'S DENIAL OF PROCEDURAL DUE PROCESS CLAIM

I.G. also contends that he "was denied his right to procedural due process when the trial judge proceeded with a pretrial conference without the presence of I.G.'s trial counsel" (not raised at trial). We disagree.

I.G. appeared at a pretrial conference, but his counsel did not because he had a trial in another county. At the hearing, the judge merely advised the parties which courtroom would be used for trial, and reviewed outstanding discovery matters, trial scheduling, and witnesses.

DYFS's counsel mentioned that I.G. had refused to appear for evaluations. The judge questioned I.G. He responded that he did not refuse to take the evaluations, he "just didn't feel like it at the time . . . because [he] wanted to do it at a later time." He stated that his attorney wanted him to undergo an evaluation in addition to the Singer evaluation, but it had not been scheduled. The judge advised I.G. to tell his attorney that it must be accomplished soon.

I.G. further advised the court that he had surrendered, or that he wanted to surrender, his parental rights to T.J.G. to his brother. The judge inquired about the status of the State's evaluation of the brother. The Deputy Attorney General advised the court that DYFS was still in the process of assessing the brother, but it did not appear that it would be placing the child with him. The judge responded "politely" that the Division had better "finish the process" and provide the information to I.G. and his attorney. The judge advised I.G. that his brother could testify at trial and told him to inform his counsel. Finally, DYFS's counsel requested a drug screen of I.G. The judge rejected the request because I.G.'s attorney was not present to advocate for him.

The due process guarantee of the state constitution, N.J. Const. art. I, ¶ 1, guarantees parents the right to counsel in termination proceedings. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n. 5 (2006)). There is also a statutory right to counsel in such proceedings pursuant to N.J.S.A. 30:4C-15.4(a). Counsel must be present "not only at the trial itself but at all critical stages after formal proceedings have begun." In re Guardianship of C.M., 158 N.J. Super. 585, 591 (Cty. Ct. 1978).

Here, neither I.G. nor his counsel complained that the hearing proceeded in counsel's absence. Pursuant to the plain error standard, Rule 2:10-2, we conclude that I.G. suffered no prejudice at the pretrial conference because nothing occurred. The conference was not a critical stage of the action.

HEARSAY CLAIM

I.G. also contends that "the trial judge improperly relied on the testimony of witnesses who were without personal knowledge as to the facts presented" (not raised at trial). We disagree.

Specifically, I.G. argues that the judge permitted DYFS caseworkers to testify based on the contents of records for time periods when the caseworkers were not assigned to the case.

I.G. focuses on the following evidence: DYFS caseworker Alece Dickerson testified on behalf of DYFS. She had served as the caseworker for S.M.B. since December 2008, and for T.J.G. since April 2009. She also served as custodian of records for DYFS. Her testimony was based upon both her personal knowledge and her review of the agency's records. DYFS caseworker Emerald Irby, who worked on S.M.B.'s case between April 2008 and December 2008, also testified based upon both her personal knowledge and her review of DYFS records.

I.G.'s counsel objected to Dickerson's testimony to the extent DYFS sought admission of expert evidence through her testimony. I.G. also challenges the admissibility of Dickerson's testimony as to what third parties said to caseworkers other than her.

Rule 5:12-4(d) provides that: "[DYFS] shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." Thus, "a report offered into evidence [pursuant to] Rule 5:12-4(d) may be admitted only if it satisfies the prerequisites for admissibility set forth in N.J.R.E. 803(c)(6)." N.J. Div. of Youth & Family Servs. v. B.M., 413 N.J. Super. 118, 131 (App. Div. 2010) (holding that doctor's medical report containing expert opinion not disclosed before trial was inadmissible under Rule 5:12-4(d) because prerequisites for admissibility under N.J.R.E. 803(c)(6) were not met).

Furthermore, N.J.R.E. 803(c)(6) provides that the following statements are not excluded by the hearsay rule:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

N.J.R.E. 801(d) defines a "business" as "every kind of business, institution, association, profession, occupation and calling, whether or not conducted for profit, and also includes activities of governmental agencies." We have found DYFS's records to be reliable and admissible evidence. N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 349-50 (App. Div.), certif. denied, 192 N.J. 296 (2007); N.J. Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407, 413-14 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003).

Based on these authorities, we conclude that the testimony of Dickerson and Irby was admissible. I.G.'s argument is therefore rejected.

Affirmed.


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