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New Jersey Division of Youth and Family Services v. S.L.W

SUPERIOR JUDGE OF NEW JERSEY APPELLATE DIVISION


January 31, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.L.W., DEFENDANT-APPELLANT, AND H.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF A.J.M.W. AND W.K.A.W., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-258-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2010

Before Judges Rodriguez, Grall and LeWinn.

Defendant is the natural mother of fraternal twins, A.J.M.W. and W.K.A.W., born in March 2006. She appeals from the May 18, 2009 judgment terminating her parental rights to the children and awarding guardianship to the Division of Youth and Family Services (DYFS) to consent to their adoption. The parental rights of the children's father, H.B., were also terminated in the same judgment; H.B., however, has not appealed.

Defendant grew up in Chicago, Illinois, and lived in the custody of her maternal aunt, D.L., whom defendant described as a drug abuser and prostitute, and who verbally and physically abused defendant. As a result, defendant lived in a series of foster homes from the age of fifteen to twenty-one. As a teenager, defendant was diagnosed with bipolar disorder and treated with various medications. During her troubled teenage years, she used marijuana, drank alcohol and attempted suicide twice, leading to a psychiatric hospitalization.

Defendant came to New Jersey when she was twenty-three years old and became involved with H.B. She claims to have conceived the twins when H.B. raped her. Defendant never spoke to H.B. again after the rape. During her pregnancy, defendant moved to a shelter; she was unemployed and relied upon welfare, food stamps and Medicaid for support.

At the time of the twins' births, defendant tested positive for marijuana at the hospital. Nonetheless, she was discharged from the hospital with the infants in her custody; she returned to the shelter where she had previously lived and remained there until July 2006. At that time she moved into her own apartment with the understanding that New Jersey's Temporary Rental Assistance program (TRA) would pay her rent. TRA never paid the rent, however, and, although defendant was briefly employed during this period and was receiving welfare benefits of $920 per month, she was unable to pay the rent and was ultimately evicted.

Defendant became involved in a relationship with J.K. at this time and, at the time of her eviction, she was pregnant with his child. They separated during the pregnancy and defendant moved in with her maternal aunt, D.L., who had relocated to New Jersey. D.L., who continued to have her own problems with drug abuse, ejected defendant and the twins from her apartment shortly afterwards. Defendant and the twins then moved into another shelter.

On March 26, 2007, DYFS received a referral from a welfare board employee stating that the twins were "dirty and smelly," and that defendant appeared to be abusing drugs. Upon investigation, however, this report was deemed unfounded.

Approximately one week later, on April 3, 2007, defendant took the twins to the hospital for treatment of ear infections. A hospital social worker contacted DYFS to report that defendant, who was now five months pregnant with J.K.'s child, had stated that she was overwhelmed in caring for the twins and that she intended to give custody of her unborn child to J.K. The social worker further reported that defendant and the children "seemed extremely hungry." In the social worker's opinion, defendant was "mentally [u]nstable and was not able to care for the children[,]" and posed "a high risk of harm" to them.

DYFS caseworker Larissa Richardson responded to the hospital and spoke to defendant who stated that she could not and did not want to care for the children at that time, and asked that the twins be placed in foster care until she could "get herself together." DYFS placed the children with one foster family and then, a few weeks later, with another family which has continued to have custody of the children up to the present and wishes to adopt them.

The trial judge ordered defendant to submit to a urine screen and a psychological evaluation, and to attend parenting classes. At her screening, defendant tested positive for marijuana and, as a result, was referred for a substance abuse assessment.

Dr. Leslie Trott conducted a psychological evaluation of defendant on April 9, 2007, and found her to be emotionally immature, irresponsible and not motivated to care for herself or her children. Trott could not rule out that defendant "suffers from a most serious psychological illness, including personality disorder, depression or thought process [dis]order. It appears that her judgment is impaired . . . [and] her emotional distress and impaired competence lead to the realization that in her care her twins are at risk." Trott recommended that defendant undergo a psychiatric evaluation and that she be referred for job training.

In May 2007, DYFS caseworker Derrick Harris referred defendant for parenting and anger management classes and individual therapy. Harris also referred defendant to a vocational training agency, provided her with transportation, arranged regular supervised visitation with the children, and gave her letters to present to the welfare board for housing assistance.

Defendant proffered her aunt, D.L., as well as D.L.'s live-in female friend, S.R., as possible relative resources. D.L. was ruled out because she had a prior criminal history; S.R was ruled out after defendant rescinded her request that she be considered as a placement possibility. Notwithstanding DYFS's efforts to assist defendant in finding housing, in June 2007 defendant chose to move back in with D.L.

Dr. Alexander Iofin conducted a psychiatric evaluation on June 11, 2007, during which defendant admitted that she had received outpatient psychiatric care as a minor and had been prescribed medication for bipolar disorder; defendant stated that she stopped taking her medicine some time ago.

Iofin concluded that the defendant was mildly depressed, had problems with impulse control and had an adjustment disorder, as well as post-traumatic stress disorder. He recommended individual and group therapy as well as medication, and that defendant be enrolled in a program for mentally ill chemical abusers (a "MICA" program) and receive treatment at a mental health clinic.

Defendant requested that DYFS place her in a Mommy and Me program which would have provided her a place to live with her children while receiving supervision and therapy. Harris sought Iofin's opinion as to whether such a program would be suitable;

after reviewing defendant's previous psychiatric records, Iofin opined that such a program would be appropriate provided it had twenty-four hour supervision and psychiatric care. Harris searched for such a program, but could not locate one in New Jersey.

During this period, Harris referred defendant to Family Connections for MICA services, pursuant to Iofin's recommendations. Defendant was admitted into the program, but her attendance was poor not withstanding a judge order requiring her to participate.

In September 2007, defendant was evaluated by Dr. Bruce Friedman, a psychiatrist retained by her attorney. Friedman concluded that defendant no longer needed a MICA program and found no evidence that she suffered from a bipolar disorder, although he did diagnose her with post-traumatic stress and attention deficit disorders.

Charles Covington, a substance abuse counselor who worked with defendant, wrote to Harris on October 11, 2007, to advise of defendant's progress and to express his opinion that, while defendant needed to continue in some form of therapy, she no longer needed substance abuse services.

Defendant gave birth to J.K.'s daughter in August 2007, and DYFS immediately took custody of the infant. Defendant continued living with D.L. until September 2007, at which time she became employed as a certified nursing assistant.

Defendant withdrew her request for placement in a Mommy and Me program at this time, because she had found housing and employment. Between October and December 2007, however, defendant lost her employment and gave up her apartment following a dispute with her landlord. In February 2008, defendant moved into a shelter in Newark for single men and women. At this time defendant also began attending a MICA program five days a week at New Hope. She obtained and lost two jobs between February and June 2008.

Defendant encountered problems and missed numerous days of therapy at the New Hope program; she complained to Harris that it was "too hard." Her case manager at New Hope stated that he believed the program was not a priority for defendant. While at New Hope, defendant denied having any mental illness, displayed poor problem solving and anger management skills and had difficulty in accepting constructive criticism, according to the case manager.

Defendant left the MICA program at New Hope in April 2008 and began attending another MICA program several days later. A psychiatrist at the new program diagnosed defendant with bipolar disorder and recommended that she be treated with a mood stabilizer. Defendant complied with taking the prescribed medications and ultimately completed this MICA program. In fact, as of the time of trial, defendant continued to attend the program twice a week.

Between June and September 2008, defendant was employed by a catering business. In November 2008, she enrolled in an evening program at Drake College of Business in Newark, studying to become a dental assistant; she anticipated graduating at the end of August 2009.

Immediately prior to the commencement of trial, defendant moved into a two-bedroom apartment in December 2008 which was partially subsidized by TRA.

Dr. Elaine Weitz, a psychologist, performed an evaluation of defendant on behalf of DYFS in November 2008. Weitz characterized defendant's adult life as chaotic and disorganized, and faulted defendant for poor judgment, impulsive behavior and inability to take responsibility for her problems. Weitz also concluded that defendant had not completely accepted her psychiatric diagnoses. Weitz concluded that defendant's ability to parent her children was very limited because of her lack of stability and income; Weitz considered defendant as barely able to care for herself.

Weitz acknowledged the progress defendant had made, but noted that defendant was still virtually completely dependent upon outside aid for her living arrangements and that she remained at substantial risk of homelessness. Weitz opined that, in order for defendant to demonstrate that she had truly changed her lifestyle, she needed to maintain a stable home independently over the next two to three years.

Weitz reiterated that defendant required treatment with medication and therapy to control her bipolar disorder; if defendant stopped taking her medications, this would negatively affect her already limited parenting abilities. Weitz expressed concern that defendant would not be able to break her pattern of violent relationships, which would potentially expose the children to harm. Weitz also noted that defendant demonstrated poor judgment in offering D.L. as an appropriate placement for the children, in light of D.L.'s own history.

Weitz performed bonding evaluations with defendant and the children and with the foster parents and the children. Based on those evaluations, Weitz concluded that the children were not bonded to defendant; they were, however, bonded to the foster parents with whom they had been living for the past eighteen months. Notwithstanding defendant's appropriate parenting behavior during the evaluation, the children actively sought out the foster parents and exhibited a much greater attachment to them than to defendant.

In sum, Weitz concluded that the foster parents had become the children's psychological parents and that, within another eighteen months, the children would be fully bonded with them. Weitz opined that the children would not be harmed if separated from defendant; they would, however, be severely harmed if separated from their foster parents. This harm, Weitz stated, would be compounded if reunification with defendant ultimately failed, which the doctor believed was highly likely given defendant's pattern of instability. Therefore, Weitz endorsed DYFS's plan for adoption.

Psychologist Frederica Brown conducted an assessment of defendant and a bonding evaluation on behalf of the Law Guardian in November 2008. Brown noted that defendant appeared to have made significant progress in turning her life around. She concurred with Weitz, however, that the children had developed a healthy attachment to the foster parents who were now the children's psychological parents. Brown concluded that the loss of the foster parents would cause greater harm to the children than the loss of defendant. Brown opposed reunification with defendant because the children had been out of her custody too long and defendant had no history of stability in employment or housing. Brown noted defendant's earlier experience of being overwhelmed when attempting to care for the children, and observed that defendant's present resiliency with the children had not been tested, let alone established. As did Weitz, Brown also questioned whether defendant would continue to take her medications given her ambivalence towards her diagnosis, and whether defendant would be able to keep the children safe given her history of abusive relationships with men. Brown emphasized that the children needed permanency, adding that if reunification with defendant were attempted and then failed, the children would be further harmed.

Defendant's psychologist, Dr. Donna LoBiondo, conducted a bonding evaluation in December 2008 and a psychological assessment of defendant in February 2009. LoBiondo opined that defendant had made progress by obtaining housing and community ties through a church and had a very realistic goal of becoming a dental assistant. She described defendant as having a stable affect and organized thought patterns, and believed that defendant would continue taking the medications responsible for these improvements. Although LoBiondo did not observe defendant simultaneously parenting the twins together, she opined that defendant was a "fit" parent who demonstrated sufficient positive attributes to make her "good enough" notwithstanding her occasional lack of patience with the children and misjudgment of the children's mental development.

LoBiondo agreed with Weitz and Brown that the children regarded their foster family as their psychological parents, adding that had defendant been placed in a Mommy and Me program she would have been able to establish and maintain a bond with the children during their time in foster care. LoBiondo further acknowledged that the children's foster care placement had been prolonged because defendant took fifteen months to complete her MICA program.

Notwithstanding her assessment of defendant's fitness to parent, LoBiondo concluded that, at that point in time, the loss of the foster parents would cause far greater harm to the children than the loss of defendant and, therefore, the children should remain with their foster parents. Even if they were to be placed with defendant, LoBiondo recommended that defendant be required to take parenting classes and that any reunification transition include therapeutic supervised visits. LoBiondo further acknowledged that defendant underestimated the degree of emotional stress the children would experience if removed from their foster parents.

Dr. Samiris Sostre conducted a psychiatric evaluation on behalf of DYFS in August 2008. Sostre questioned the stability of defendant's housing and employment, but noted that while on her present medication defendant did not exhibit any acute symptoms of mental illness. However, Sostre cautioned that defendant needed to remain on her medications, as well as engage in therapy; Sostre opined that if defendant did not eventually acknowledge the full extent of her mental health issues, there would be an increased risk that she would become non-compliant with treatment. In connection with this opinion, Sostre noted that defendant had stated that she did not agree with her present diagnosis of bipolar disorder, but represented that she would continue to take her medication in order to comply with DYFS's requirements to regain custody of her children.

Following an eight-day trial between January and April 2009, the trial judge rendered a brief decision from the bench on May 18, 2009 and issued a comprehensive written opinion on May 20, 2009. After an extensive review of the evidence, the judge concluded that DYFS had met each of the statutory standards governing the termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), by clear and convincing evidence, thereby justifying the termination of defendant's parental rights to the children.

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE TRIAL JUDGE ERRED BY (a) DISQUALIFYING DR. MARK SINGER AND DR. BARRY KATZ FROM TESTIFYING BASED UPON AN APPEARANCE OF CONFLICT; (b) ALLOWING THE DIVISION TO ASK EXPERT WITNESSES HYPOTHETICAL QUESTIONS BASED UPON FACTS THAT WERE NOT IN EVIDENCE WHICH DEPRIVED S.W. OF HER STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHTS TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 1.

A. DISQUALIFYING DR. MARK SINGER AND DR. BARRY KATZ

B. HYPOTHETICAL QUESTIONS TO EXPERTS WITH FACTS NOT IN EVIDENCE

POINT II

ANALYZING THE EVIDENCE THE DIVISION OF YOUTH AND FAMILY SERVICE[S] PRESENTED AT THE GUARDIANSHIP TRIAL WITHIN THE CONTEXT OF THE FOUR PART STATUTORY CRITERIA OF N.J.S.A. 30:4C-15.1(a), IT IS APPARENT THE TRIAL JUDGE ERRED IN DETERMINING THE DIVISION MET ITS BURDEN BY CLEAR AND CONVINCING EVIDENCE AND THAT S.W.'S PARENTAL RIGHTS SHOULD BE TERMINATED

PRONG ONE

THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL JUDGE'S ERRONEOUS FINDINGS OF FACTS THAT THE HEALTH AND DEVELOPMENT OF [THE] TWINS HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR PARENTAL RELATIONSHIP WITH S.W.

PRONG TWO

THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL JUDGE'S FINDING THAT S.W. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE TWINS OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THEM [SIC] THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.

PRONG THREE

THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL JUDGE'S FINDING THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF THE TWINS OR THE JUDGE HAS CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

PRONG FOUR

THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE JUDGE'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

Having considered these arguments in light of the record and the controlling legal principles, we discern no basis to disturb the judgment of the trial judge and, therefore, affirm.

We turn first to defendant's arguments with respect to the proofs on which the judge determined to terminate her parental rights.

Appellate review of a judgment terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We will generally defer to the trial judge because it had the opportunity to observe the witnesses, weigh their credibility and develop a "feel" of the case. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007).

Such deference is not appropriate when the decision below "goes so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citation omitted). Heightened appellate scrutiny is also appropriate when the "'focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom.'" Id. at 189 (citation omitted). Barring such circumstances, however, a reviewing judge is bound to defer to the trial judge's findings of fact, as long as they are "supported by adequate substantial, and credible evidence in the record." G.L., supra, 191 N.J. at 605; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

With these standards of review in mind, we consider defendant's arguments addressed to the statutory factors. Pursuant N.J.S.A. 30:4C-15.1(a), parental rights may be terminated if DYFS clearly and convincingly establishes 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) [DYFS] 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 judge has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

These factors are highly fact-sensitive, and are "neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (internal quotations omitted).

Our review of the record satisfies us that the trial judge's decision "is based on findings of fact which are adequately supported by evidence." R. 2:11-3(e)(1)(A). We affirm that decision substantially for the reasons set forth in the extensive and thoughtful written decision issued by Judge David B. Katz on May 20, 2009.

Suffice it to say, the first statutory prong is clearly and convincingly established by defendant's history of chronic instability in her life, which led her to surrender her children to DYFS in the first place in April 2007 when they were just over one year old. Her situation at that time clearly endangered the twins' "safety, health [and] development." N.J.S.A. 30:4C-15.1(a)(1).

As for the second prong, while defendant did make sporadic progress, her housing was tentative, at best, and dependent upon rental assistance. Her employment was similarly intermittent and desultory. Moreover, defendant has continuously been in denial about her mental health issues, raising concerns among several experts as to the likelihood of her continued compliance with treatment if reunited with the children. In addition, defendant exercised poor judgment in offering her maternal aunt, D.L., as a family resource.

Regarding prong three, the record clearly demonstrates DYFS's efforts to provide services first to prevent the removal of the children, and, subsequently, to facilitate reunification.

Finally, with respect to the fourth prong, numerous factors support the judge's conclusion that termination of defendant's parental rights would not do more harm than good to the children. These include defendant's mental health issues, her inability to maintain secure housing and consistent employment, and, in general, her continuing inability to provide the children with a safe and secure home and adequate parenting.

Under this prong of the best-interests standard, "the child[ren]'s need for permanency and stability emerges as a central factor." In re K.H.O., 161 N.J. 337, 357 (1999). "Recognizing the natural tendency to want to continue working with parents to restore the family unit, . . . placement plans must not lose sight of time from the perspective of the child[ren]'s needs." Ibid. In light of the twins' need for permanency, defendant's inability to provide such permanency, and the presence of foster parents who have become the children's psychological parents and wish to adopt them, the fourth statutory factor has been satisfied by clear and convincing evidence.

We next address defendant's claim that the trial judge erred by sua sponte disqualifying DYFS's expert psychologist, Dr. Mark Singer, and defendant's expert psychologist, Dr. Barry Katz, because both are affiliated with West Essex Psychology Center (West Essex). The judge first brought this potential conflict to counsels' attention on the day before trial was originally scheduled to begin in October 2008, and then held a hearing on October 31, 2008, at which Katz and Singer testified as to the nature of their professional relationship.

Katz testified that he was the sole principal, director and shareholder of West Essex, and that Singer maintained a separate corporation. Both Katz and Singer had separate contracts with DYFS and the Office of the Public Defender. Katz received no money for work done by Singer under Singer's own contract, although he sometimes hired Singer as an independent contractor to work on some of his referrals.

Singer confirmed that he had his own separate corporation, and separate contracts with DYFS and Office of the Public Defender. He and Katz share a common waiting room, but have separate offices; they use the same letterhead and share the same phone number, but neither has access to the other's voicemail. They have no office staff, do not utilize a shared computer network, and do not have access to each other's files.

Singer acknowledged that he paid rent to Katz, but stated that he and Katz did not share profits. Singer denied that he had discussed the merits of this matter with Katz, but acknowledged that he was aware they each had made different recommendations. Singer maintained that no conflict existed under his professional code of ethics.

DYFS acknowledged there was no conflict but argued that there was a strong appearance of a conflict from a legal perspective, which DYFS was not willing to waive, for fear of creating an unnecessary issue for appeal; the Law Guardian agreed with DYFS. Defendant disagreed and urged the judge not to delay the case by requiring new expert reports.

The judge rendered both an oral decision and a supplemental written opinion. He acknowledged that both Katz and Singer were clearly "scrupulous in adhering to their ethical standards regarding patient confidentiality"; nonetheless, the judge found an impermissible appearance of conflict that had to be evaluated from the perspective of the public, concluding that he "must be scrupulous in ensuring that there are no appearances of conflicts with the experts. With Drs. Katz and Singer being outwardly associated with each other and West Essex, their testimony on competing sides of a contested termination of parental rights matter is problematic and will be precluded."

"[M]indful of [defendant's] claim that any delay occasioned by the preclusion of the experts will cause her prejudice in that the bond with the foster parents will only get stronger with the passage of time," the judge noted that when he first raised the conflict issue with counsel on October 24, 2008, he directed the parties to "contact replacement experts in the interim and to ascertain their availability." As of the October 31 plenary hearing, all parties "had in fact contacted their replacement experts in the interim, and . . . all replacement evaluations, if necessary, could be completed during the month of November 2008."

The judge noted that his ruling delayed "the commencement of . . . trial . . . a little over six weeks. On balance, a six or seven week delay is reasonable in order to ensure that the trial is conducted properly with no outward appearance of a conflict, especially with respect to competing experts." By consent, the judge increased defendant's visitation with the children during the delay in trial "from [two] hours bi-weekly to [two] hours weekly." By the time of the judge's decision disqualifying Singer and Katz, the twins had been in the same foster care placement for a year and a half.

DYFS and the Law Guardian obtained new evaluations by the end of November 2008. As of January 2009, however, defendant had been unable to schedule appointments with her replacement expert, Dr. LoBiondo. Although defendant had completed bonding evaluations by December 2008, she did not complete her evaluation with LoBiondo until February 2009, after trial had already commenced.

On appeal, defendant argues that the judge abused his discretion by requiring new psychological evaluations based upon an outmoded concept of the conflict of interest. Specifically, defendant points out that the "appearance of a conflict" standard was eliminated with respect to attorneys in the 2004 amendments to the Rules of Professional Conduct after it was determined to be too vague and ambiguous to serve as a workable ethics standard. In re Supreme Court Advisory Comm. Prof'l Ethics Op. No. 697, 188 N.J. 549, 562-63 (2006).

The judge cited no authority for applying the broader "appearance of conflict" standard in his decision. Rather, he relied upon his obligation "to judicially protect the trial procedures relative to termination of parental rights in contested . . . cases [as] perhaps most evident on the issue of experts." Neither DYFS nor the Law Guardian provides us with any supporting authority directly on point.

We are satisfied that any error in the disqualification of these experts was harmless. In light of the record, this ruling was not "of such a nature as to have been clearly capable of producing an unjust result," R. 2:10-2, and, therefore, not a basis for reversal.

The twins have been in the custody of their foster parents since April 2007. Dr. Weitz's report of November 2008 indicated that, by that date, the children regarded the foster parents as their psychological parents. The delay of trial beyond November 2008 was caused by defendant's inability to schedule appointments with her replacement expert, Dr. LoBiondo.

Defendant has not presented, nor do we discern, any basis to conclude that had trial been held earlier, the result would have been any different. Indeed, defendant does not contend that either Singer's or Katz's report would have provided evidence supporting a different result.

Finally, we briefly address defendant's contention that DYFS was permitted to ask some of the expert witnesses inappropriate hypothetical questions not based upon facts in evidence. Although the judge acknowledged that he had permitted DYFS to pose "hypotheticals, even though the facts may or may not be in evidence," we find no error since the judge subsequently determined, primarily at the request of DYFS, to disregard any expert testimony not based upon facts in evidence.

Our review of the judge's decision discloses that he did not, in fact, base any of his findings on the experts' responses to purportedly improper hypothetical questions. Indeed, defendant points to no such examples in her brief. We are confident, therefore, that the trial judge clearly abided by his ultimate determination that he would not rely upon those responses.

Affirmed.

20110131

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