April 26, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.S.F. AND M.S.F., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-41-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2012 -
Before Judges A. A. Rodriguez, Sabatino, and Fasciale.
D.D.F. (birth mother) appeals from a January 31, 2011 order terminating her parental rights to twin daughters, N.S.F. and M.S.F.*fn1 She argues that the judge erred by: (1) terminating her rights because the Division of Youth and Family Services (the Division) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a); and (2) failing to afford her procedural due process rights. We disagree and affirm.
The twins were born three weeks after the judge terminated the mother's parental rights to five other children.*fn2 The Division conducted a Dodd removal*fn3 two days after the twins were born. The mother failed to appear at the initial Dodd application and on the return date of the Division's order to show cause (OTSC), at which the judge approved the removal and awarded to the Division care, custody, and supervision of the twins. The judge found that the twins were at risk of harm due to the mother's psychiatric distress. The twins were placed in the same home and the foster mother expressed a desire to adopt them.
The judge then relieved the Division from the obligation to provide reasonable efforts to reunify the twins with the mother, N.J.S.A. 30:4C-11.3(c),*fn4 and scheduled a permanency and fact finding hearing for December 2009. The mother did not appear at the proceeding, at which the judge stated:
[The mother] has [a] serious mental illness compounded by some substance abuse problem[.] She's been altogether not compliant for treatment with marijuana abuse problems[,] but most importantly . . . with her mental health problems.
The judge then approved the permanency plan of termination of parental rights followed by adoption.
In February 2010, the Division filed its guardianship complaint. One month later, the mother appeared at a court proceeding at which the judge appointed her counsel, directed her to cooperate with the Division in scheduling psychological and psychiatric evaluations, and granted supervised weekly visitation with the twins. However, following their removal, the mother did not visit the twins until April 2010, and thereafter she cancelled multiple visits and often showed up late. She appeared sporadically for court dates, and the judge then ordered her to attend psychiatric, psychological, and bonding evaluations, and scheduled a trial date.
The judge conducted a guardianship trial on two separate days in November 2010. The Division called a family service specialist caseworker, an adoption worker, a caseworker assigned to investigate referrals of allegations of neglect, and Robert James Miller, Ph.D., the Division's forensic expert psychologist.
The judge found all these witnesses to be credible. The mother attended the first day of trial, failed to return to court in the afternoon of the second day of trial, and did not testify or introduce any evidence on her behalf.
Dr. Miller evaluated the mother in September 2008 and May 2010.*fn5 He learned that the Division had removed her when she was nine years old because her parents had abused her. The mother had been classified for special education, but dropped out of school after the eleventh grade. In 2008, she exhibited symptoms of depression such as crying, isolation, lack of interest, feelings of hopelessness and helplessness, suicidal ideations, and self-destructive behaviors. Dr. Miller concluded that the mother demonstrated severe parenting deficits in her capacity to provide safety, continuous care, and emotional nurturance, and he recommended that she undergo psychiatric and substance abuse assessments. When he conducted his evaluation in 2010, Dr. Miller reaffirmed his earlier diagnosis that she suffered from a major depressive disorder with psychotic features. She displayed severe parenting deficits and was resistant to engaging in services. Dr. Miller concluded that the mother's prognosis for improvement was very poor. She lacked insight into her emotional functioning, had no capacity to manage stress, and appeared to have a very high risk of suicide.
In rendering his twenty-nine page oral opinion, the judge correctly employed the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:
(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[;]
(3) The [D]ivision 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.
See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (discussing the four prongs of the best interests standard in the context of a termination of parental rights case).
As to the first prong, the judge determined that there was clear and convincing evidence that the mother was unable to provide the twins with a safe and stable home and suffered from an untreated mental illness. The judge explained:
The case . . . has its genesis in the termination of the other [five children].
In the matter of those five children . . . the Division [learned that] the children [remained] outside without supervision, the apartment was in disarray, human feces was found on the rug, some of the children were in diapers, another was undressed.
The youngest [child] was found in distress. She was covered in white powder that was in the bed and [on] the floor.
[S]he had a severe rash, and her vagina was covered in blisters. Another child appeared to have mouth blisters and thrush.
[I]n the apartment the bedding was inadequate. There was food and garbage on the floor, and [there was a] lack of hygiene products such as toothpaste, soap[,] and toilet paper.
[The mother] indicated . . . that because of her depression she felt the need to constantly . . . sleep, sleeping up to 12 hours a day, apparently to address the stress she felt.
[T]he apartment was dark [and] there were sheets and rags over the windows.
[The mother] indicated . . . that she was severely depressed, felt that she only wanted to cry[.] [T]here was no food in the pantry or in the refrigerator.
[The mother] also indicated . . . that she had used marijuana and alcohol . . . to relieve the stress of parenting.
The judge noted that the mother appeared in the hospital without any prenatal care when she was twenty-two weeks pregnant with the twins. He stated that when the twins were born, the hospital contacted the Division because "the records at the hospital referenced the history of [the mother's] appearances at the hospital for various reasons, including psychiatric issues,  suicidal ideations, and attempted suicides." The judge relied on testimony from Division caseworkers regarding the endangerment to the mother's five other children and Dr. Miller's testimony that her untreated mental illness posed a serious risk to the twins. See In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (noting that the court need not wait to act until the child is harmed when there was "every indication" that harm would befall the child if placed in the parent's care).
The judge found by clear and convincing evidence to support the second prong. He noted that although the Division continued to offer services, [The mother] continued in her uniform conduct, namely, that she failed to avail herself of the services, and perhaps most importantly, because this case is about a defendant who is psychiatrically and psychologically unfit to parent, she remained off her medication, never even started it. And she failed to engage in any type of therapy to address her psychiatric and psychological disability.
The judge accepted Dr. Miller's opinion that the mother could not care for herself and would be unable to provide parental care for the twins for the foreseeable future. Despite numerous mental health evaluations and psychiatric hospitalizations, the mother remained non-compliant with recommended medications and therapy. Dr. Miller believed that her condition had deteriorated between 2008, when the Division removed the five children, and 2010.
As for the third prong, although the judge relieved the Division of a legal duty to provide reasonable services, he found that the Division nevertheless had in fact made reasonable efforts to provide services to the mother. The services included mental health evaluations and treatment, substance abuse assessments, parenting classes, and supervised visitation.*fn6
In finding that the fourth prong had been established, the judge concluded that termination of parental rights would not do more harm than good. The twins never resided with the mother and she only visited them infrequently. They lived with their foster mother from the time they were removed from the hospital. Further, the judge found that defendant had a severe psychiatric disability that could not be remediated within the foreseeable future. He found that if placed in the mother's care, the twins would not only be at risk for neglect, but would also be susceptible to the mother's paranoia.
Our standard of review is limited. In re J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings are to receive deference unless "so wide of the mark that the judge was clearly mistaken").
Following our review of the record, we conclude that there was adequate, substantial and credible evidence to support the judge's findings under each prong of the best interests standard, and that the judge correctly determined that the Division had established by clear and convincing evidence each of the four prongs. Moreover, the children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. D.M.H., supra, 161 N.J. at 386. For these reasons and others more fully described in the judge's oral opinion dated January 31, 2011, with which we substantially agree, we affirm. We add the following comments regarding the mother's procedural due process contention.
The mother argues that she was not afforded sufficient due process protections because adverse findings were made when she was unrepresented. She complains that her lack of representation during the abuse and neglect phase of the litigation resulted in the judge entering orders relieving the Division from its obligation to provide her with reasonable services and approving the Division's permanency plan of termination of parental rights. She claims that she was not afforded an opportunity to defend herself until March 2010, by which time she had already missed several months of visitation with the twins. Finally, she asserts that the proceedings were fundamentally flawed because the judge took notice of the default entered against her in the matter of her five older children, even though she was not represented at the time of that default.
A defendant in a termination of parental rights case has a constitutional as well as a statutory right to the effective assistance of counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-07 (2007) (citing Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006); N.J.S.A. 30:4C-15.4(a)). To that end, the statute provides:
In any action concerning the termination of parental rights . . ., the court shall provide the respondent parent with notice of the right to retain and consult with legal counsel. If the parent appears before the court, is indigent and requests counsel, the court shall appoint the Office of the Public Defender to represent the parent.
Nothing in this section shall be construed to preclude the parent from retaining private counsel. [N.J.S.A. 30:4C-15.4(a) (emphasis added).]
The mother did not appear before the judge until March 2010 and did not request counsel prior to that. Kevin Belli, the family service specialist caseworker who testified at the trial, notified defendant orally and in writing of the initial hearing after the Dodd removal, offered to provide her with transportation to court, and even drove to her apartment on the day of the hearing to pick her up. Still, the mother did not appear.
The mother likewise did not appear on the return date of the OTSC, despite having been served with notice of the proceeding. Her brother came to the courthouse that day to request that the matter be rescheduled. He told the caseworker that the mother did not want to come to court because "she felt mopey today." At that time, the Division represented to the judge that caseworkers had advised the mother on numerous occasions that she should apply for a public defender.
Belli testified that he personally served the mother with notice of the permanency and fact finding hearing, and that she gave no indication whether she intended to participate in the litigation involving the twins. As he put it, "[s]he was not coherent. She didn't really speak to me at all. She was laying on the floor wrapped in a blanket. And she just nodded that she would maybe come."
When defendant appeared before the judge on March 2010, the judge allowed her sister-in-law to remain in the courtroom, carefully explained the proceedings to both, and ordered the mother to complete the paperwork to obtain counsel. The mother's attendance was erratic over the next several hearings, with the judge postponing the proceedings three times so that she would have an opportunity to confer with counsel. Likewise, when the mother disappeared during the lunch break on the second day of trial, allegedly to pick up a witness, the judge left the record open in case her absence could be shown to be excusable.
"The requirements of due process do not confer a constitutional right of [personal] confrontation or mandate a parent's presence at the trial." Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 467 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004). In evaluating whether due process was satisfied, "[t]he question to be answered is not whether particular procedures were used, but rather whether those procedures which were employed were appropriate and adequate to protect the interests at stake." Id. at 467-68.
Here, the mother chose not to participate in the early proceedings. The judge had no authority to mandate her presence in court, nor to assign her a public defender, unless and until she requested one and provided information to verify her indigence. The judge used adequate means to protect the mother's procedural due process rights, was sensitive to her situation, and scheduled proceedings to maximize her participation. Neither the facts nor the law support the mother's argument that she was denied procedural due process.