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

March 10, 2011

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



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket Nos. FN-04-428-07, FG-04-81-09.

Per curiam.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 31, 2011

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

Defendant, K.H., is the natural mother of B.H. (Brenda), born in July 1997, and B.W.H. (Brian) born in October 2003.*fn1 In these consolidated matters, defendant appeals from the August 4, 2009 judgment terminating her parental rights to Brian and the August 31, 2009 order terminating abuse/neglect litigation regarding Brenda and Brian, and awarding custody of Brenda to her natural father, J.P. Because the issue of Brenda's custody was resolved without a dispositional hearing, as required by N.J.S.A. 9:6-8.50, N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 399 (2009), we reverse and remand for the purpose of holding such a hearing. We otherwise affirm the judgment and order under review.

The record is replete with undisputed evidence of defendant's longstanding history of serious mental illness, including instances of in-patient psychiatric hospitalizations, episodes of alcohol and drug abuse, and involvement in the criminal justice system. The first referral to DYFS was in July 2006, when a police officer reported that defendant had left Brian, then less than three years old, alone in a car while she went shopping. The responding DYFS caseworker was unable to interview defendant at that time because she was uncooperative.

A second referral occurred in April 2007, again from a police officer reporting that defendant had been driving erratically on a public highway. The officer further reported that defendant was "belligerent and aggressive [and] hostile."

The following day, J.P. made a third referral, reporting that defendant had hit Brenda in the face and screamed, yelled and cursed at her. At that point, DYFS opened a case for services to assess defendant's psychological condition.

Larry N. Seidman, Ph.D., conducted a psychological evaluation of defendant on May 21, 2007. Although Seidman was unable to diagnose defendant with a specific psychotic disorder based upon testing, he nevertheless determined that she met the criteria for four diagnoses: (1) panic disorder; (2) intermittent explosive disorder; (3) alcohol abuse (historical); and (4) paranoid personality disorder. Seidman opined "with [sic] a reasonable degree of psychological certainty that [defendant's] unpredictable psychological functioning and aggressive behavior indicate that she would, without significant psychological intervention, prove to be a continuing danger to the physical and psychological welfare of her children."

Based upon Seidman's report, DYFS executed a removal of Brian from defendant's custody. Brenda had previously moved in with her father, J.P., because defendant's conduct frightened her and she felt safe with her father; Brenda stated that she would only see defendant if J.P. were present.

DYFS arranged for defendant to attend anger management and parenting classes, beginning in September 2007. On September 26, 2007, however, defendant was arrested for physically assaulting her mother, C.H., who at the time had custody of Brian. C.H. claimed that defendant argued with her about disciplining Brian; the argument escalated into a physical assault whereby defendant took hold of both of C.H.'s arms and told her not to discipline the child.

On October 9, 2007, defendant was involuntarily committed to the Camden County Health Services Center (Lakeland). She was brought to Lakeland by police officers due to "delusions, paranoia, responding to internal stimuli, aggressive driving and hostility and violence toward a police officer." Defendant was diagnosed with bipolar disorder, mania with psychotic features, and cocaine and alcohol dependence in remission.

A judge scheduled a fact-finding hearing for November 9, 2007, during the time defendant was confined at Lakeland. A social worker at the hospital sent a letter to the judge advising that defendant would be unable to attend the hearing. The judge, however, did not receive the letter prior to the hearing and proceeded in defendant's absence. Defendant was not represented by an attorney at that time; her prior attorney had asked to be relieved because of defendant's conduct and no new attorney had been appointed.

At the conclusion of the November 9 hearing, the judge found that defendant had abused and neglected both children and granted custody of Brenda to J.P, and entered an order to that effect. As will be discussed below, however, the judge subsequently vacated the November 9, 2007 order, and held a fact-finding hearing on the abuse/neglect complaint simultaneously with the guardianship hearing.

Defendant was discharged from Lakeland on December 12, 2007; her prognosis was "guarded due to her history of noncompliance" with treatment and medication. In the almost two years that ensued between defendant's discharge and her trial, she (1) was arrested for driving while intoxicated and engaged in erratic and disruptive behavior upon her arrest; (2) admitted to the judge that she refused to take prescribed medication;

(3) was again arrested for disorderly conduct, aggravated assault and resisting arrest, leading to her incarceration from January to April 2009; (4) was hospitalized at Trenton Psychiatric Hospital during her period of incarceration; and (5) served a probationary term following her guilty plea to three counts of third-degree resisting arrest and one count of third-degree aggravated assault upon a sheriff's officer.

Following defendant's release from jail, DYFS re-started visitation with Brian. She refused to sign the visitation plan, however, and persisted in telling Brian that he would be returning home with her, resulting in Brian telling the DYFS caseworker that defendant's behavior frightened him.

During this period, despite efforts by the judge to arrange visitation with Brenda, including therapeutic visitation, Brenda continued to insist that she wanted either supervised or no visits with her mother. At court proceedings during this period, defendant was frequently disruptive and uncooperative, often attempting to interrupt the proceedings with her outbursts.

Trial commenced on June 24, 2009. In addition to Seidman's report of May 21, 2007, DYFS introduced into evidence an updated report by Seidman dated February 27, 2008; a psychiatric evaluation of defendant by Dr. Edward Baruch, dated July 11, 2007; and psychological and bonding evaluations by Linda R. Jeffrey, Ph.D., from April, May and June 2009. Jeffrey also testified at trial.

Seidman concluded "with [sic] a reasonable degree of psychological certainty that [defendant] presents as an ongoing threat to the welfare of her children and . . . does not now present with the psychological or behavior stability to be considered as a custodial parent for [her] children." He described her prognosis for recovery as "clearly guarded at best."

Baruch diagnosed defendant with (1) schizophrenia, chronic, paranoid-type; (2) delusional (paranoid) disorder; (3) post-traumatic stress disorder "by history"; and (4) substance/alcohol abuse in "full-sustained remission." Baruch concluded: "It does not appear that [defendant] is able to appropriately interact with her children at this time, even on a supervised basis. She has very little insight into her mental health issues. . . ." Noting that defendant "has denied any need for medications or psychiatric assistance[,]" Baruch concluded nevertheless that she "would likely benefit from anti-psychotic medications."

Jeffrey diagnosed defendant with the following disorders: alcohol dependence; substance dependence; bipolar; intermittent explosive; and ...


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