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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 paranoid personality. Jeffrey concluded,

[b]ased upon a reasonable degree of psychological certainty, . . . that [defendant's] mental health problems, including regulatory dysfunction in mood, thought, personality and adjustments, seriously decrease her parenting capacity to provide a minimum level of safe and reliable parenting for her children. Her children are likely to be at high risk for harm in her care.

Jeffrey did "not recommend the placement of [defendant's] children in her care."

Jeffrey also conducted a bonding evaluation between Brian and defendant, and between Brian and his maternal aunt and uncle, K.H. and A.H., who have had custody of the child since September 23, 2008. Jeffrey concluded that Brian "is insecurely attached to [defendant]. He is likely to be at risk for harm if placed in [defendant's] care." By contrast, Jeffrey concluded that Brian is securely attached to his aunt and uncle.

They displayed attunement to his needs. He displayed an affectionate tie to them, responsiveness to their parenting authority and a sense of belongingness and security in their care. Removal from the stability, security and attuned care provided by his uncle and aunt is likely to place [Brian] at risk for serious and enduring harm.

Defendant presented testimony from Gary Spatola, who had participated in a twelve-step Alcoholics Anonymous program with defendant "about fifteen years ago." Approximately "four years ago[,]" Spatola had occasion to observe defendant caring for her children at a swim club. He never saw defendant "act inappropriately with the children" or speak in an "extraordinarily loud" voice to them.

David Chessler testified that he has known defendant "for about three years[,]" and had been present at some of defendant's supervised visits with Brian. He observed Brian "r[u]n right to [defendant], hug[] her, kiss[] her. . . . There was no question that he missed his mother."

Rosemary Weiss supervised defendant when she worked as a hospital nurse between 2003 and 2005. She observed defendant to be "[v]ery caring towards patients." She also observed defendant to be a "[l]oving mother" to her children. She had last seen defendant with her children in 2004 when Brian "was an infant."

Defendant testified. She stated that she had "wonderful" visits with both children and only had problems when DYFS workers attempted to present her with papers during those visits. She asserted that she did not take prescribed medications following her discharge from Lakeland because she did not want to become addicted to them; she did not think she needed to be on any medication because she "attend[s] AA meetings everyday. . . . And [she] knows what [she is] doing and who [she is]."

The judge issued a written decision on August 3, 2009. After an extensive review of the evidence, the judge concluded that DYFS had established, by clear and convincing evidence, all four prongs of the best interest test codified at N.J.S.A. 30:4C-15.1(a)(1)-(4), thereby warranting termination of defendant's parental rights to Brian. In addition, based upon the same review and analysis of the evidence, the judge made "a finding of abuse and neglect against" defendant with respect to both children.

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

POINT I

THE DODD REMOVAL OF [BRENDA] AND [BRIAN] WAS IMPROPER.

POINT II

THE NOVEMBER 9, 2007 DEFAULT VIOLATED K.H.'S RIGHT OF NOTICE AND OPPORTUNITY TO BE HEARD AND INFECTED THE PROCEEDINGS FROM THAT POINT FORWARD (Partially Raised Below).

POINT III

THE DUAL TRACK FACT[-]FINDING HEARING REGARDING [BRENDA] WHEN COUPLED WITH THE GUARDIANSHIP TRIAL REGARDING [BRIAN] VIOLATED K.H.'S PROCEDURAL DUE PROCESS AND STATUTORY RIGHTS BECAUSE INADMISSIBLE EVIDENCE WAS PRESENTED TO AND RELIED UPON BY JUDGE LASKIN IN THE GUARDIANSHIP TRIAL TO RENDER HIS DECISION IN THE FACT FINDING.

a. The 2006 Incident Was Determined To Be Unsubstantiated And Presentation Of That Evidence Violated The Terms Of N.J.S.A. 9:6-8.21 and J.Y.

b. Facts Outside Of Those Alleged In FN 04-428-07 Were Presented At The Fact Finding.

c. DYFS Relied On Inadmissible Hearsay To Support Its Case.

d. DYFS Provided No Evidence To Support Its Allegations Of K.H.'s Alleged Assault Or That K.H. Threatened To Take [Brenda].

POINT IV

K.H.'S DUE PROCESS RIGHTS WERE VIOLATED BECAUSE NO G.M. HEARING WAS HELD REGARDING [BRENDA] AND K.H. WAS DENIED VISITATION BY DYFS.

POINT V

DYFS FAILED TO PROVE THAT [BRENDA] WAS ABUSED OR NEGLECTED UNDER N.J.S.A. 9:6-8.21. POINT VI THE GUARDIANSHIP ACTION SHOULD NEVER HAVE BEEN FILED BECAUSE FEDERAL LAW REQUIRED THE COURT, NOT DYFS, TO MAKE A SERIES OF FINDINGS DIFFERENT THAN THAT SET FORTH IN N.J.S.A. 3B:12A-1 et. seq. (not raised below).

POINT VII

DYFS FAILED TO PROVE ALL OF THE ELEMENTS OF N.J.S.A. 30:4C-15.1.

a. DYFS Failed To Prove Harm To [Brian].

b. K.H. had Provided, And Was Willing To Provide, A Safe And Stable Home.

c. DYFS Did Not Provide Reasonable Services And The Trial Court Failed To Consider Alternatives To Termination.

d. DYFS Did Not Prove That Terminating Rights Would Not Do More Harm Than Good.

POINT VIII

K.H. RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL THROUGHOUT THE FACT[-]FINDING PROCEEDINGS AND AT THE GUARDIANSHIP TRIAL (not raised below).

Our scope of review of a trial judge's termination of parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).

A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by adequate, substantial and credible evidence on the record. . . . However, where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded. Still, even in those circumstances we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made.[Id. at279 (internal quotations and citations omitted).]

N.J.S.A. 30:4C-15.1(a) sets forth the four elements DYFS must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parent's right to have a relationship with her child, Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). See In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999).

DYFS must show:

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

These statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). The four factors are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

With these principles in mind, we turn to defendant's contentions. Other than her claim that the judge erred in failing to hold a dispositional hearing with respect to Brenda, we reject as without merit defendant's remaining contentions, and decline to discuss them in this opinion beyond the following comments.

DYFS's removal of the children in June 2007 was prompted by Seidman's psychological evaluation of defendant which concluded that, in the absence of "significant psychological intervention," she was "a continuing danger to the physical and psychological welfare of her children." In fact, by the time DYFS executed the removal, Brenda had already moved in with her father, J.P., because defendant's conduct frightened her. Moreover, defendant was afforded a hearing two days after the removal; following testimony by a DYFS caseworker, defendant requested that Brian be placed with either her mother or her brother, and agreed to Brenda's placement with J.P.

DYFS fully complied with the requirements for an emergency removal. N.J.S.A. 9:6-8.30. The judge's order for the continued removal of the children was based on findings "supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Defendant was not prejudiced by the fact-finding hearing held in her absence on November 9, 2007. As noted, the judge subsequently vacated the order entered following that hearing and held a new fact-finding hearing on the abuse/neglect complaint regarding Brenda simultaneously with the guardianship trial with respect to Brian.

Nor do we discern any basis for defendant's claim that combining the fact-finding and guardianship proceedings somehow prejudiced her. Much of the evidence pertinent to the abuse/neglect complaint with respect to both children also bore upon the issues involved in DYFS's complaint for guardianship of Brian.

The admission of Seidman's and Baruch's reports, without the accompanying testimony of those experts, was proper under Rule 5:12-4(d), which provides that DYFS "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) . . . , reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." N.J.R.E. 803(c)(6) is the so-called "business records exception" to the hearsay rule.

We have long recognized DYFS's right "to submit into evidence . . . reports by . . . affiliated medical, psychiatric, or psychological consultants[], prepared from their own firsthand knowledge of the case, at a time reasonably contemporaneous with the facts they relate, and in the usual course of their duties with [DYFS]." In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). Clearly the reports of Seidman and Baruch satisfy these standards for admissibility. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 346-47 (2010).

Our review of the record in this case satisfies us that the trial judge's conclusions with respect both to the finding of abuse and neglect of the children and the termination of defendant's parental rights to Brian are "based on findings of fact which are adequately supported by evidence." R. 2:11-3(e)(1)(A). We affirm those findings substantially for the reasons set forth in the judge's written decision of August 3, 2009. Further discussion of these points is not warranted. R. 2:11-3(e)(1)(E).

In light of the foregoing, we decline to address defendant's contention that she received ineffective assistance of trial counsel. R. 2:11-3(e)(1)(E)

Defendant's contention that New Jersey statutes governing abuse/neglect and guardianship proceedings have "been made outdated by conflicting federal law[,]" namely the Fostering Connections to Success and Fostering Adoptions Act (FCSFA), Pub. L. No. 110-351, 122 Stat. 3949 (codified in scattered sections of 42 U.S.C.A.) was not raised below; therefore, we review it only for plain error under Rule 2:10-2. Defendant contends that the FCSFA "require[s] states to engage in a more thorough search for relative caretakers and establishe[s] a different standard for states to consider in seeking kinship legal guardianship [(K.L.G.)]." A "Kinship legal guardian" is defined as "a caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court." N.J.S.A. 3B:12A-2. New Jersey law does not require kinship legal guardianship where, as here, adoption is feasible. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004). As noted, defendant's brother, K.H., and his wife have had custody of Brian since September 2008 and wish to adopt him.

In any event, the FCSFA does not preempt New Jersey's K.L.G. statutes. It merely amended federal law to allow states to receive federal assistance for K.L.G. households where reunification or adoption is not an appropriate permanency option for the child. 42 U.S.C.A. § 673(d)(3)(A)(ii).

Finally, we reverse the provision in the August 26, 2009 order that Brenda shall remain in the legal and physical custody of her father, J.P. We remand for a dispositional hearing "to determine the appropriate outcome of the case." G.M., supra, 198 N.J. at 399; N.J.S.A. 9:6-8.50. At the dispositional hearing, "both sides may present material and relevant evidence for the court to determine whether [Brenda] may safely be released to the custody of [her] mother, . . . or whether . . . some other disposition is appropriate." G.M., supra, 198 N.J. at 402; N.J.S.A. 9:6-8.51.

Affirmed in part; reversed and remanded in part.


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