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New Jersey Division of Youth and Family Services v. V.N.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 1, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
V.N.V., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF E.B.V., MINOR-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-63-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2012 Before Judges Parrillo, Grall and Alvarez.

V.N.V. appeals the July 26, 2011 termination of her parental rights to her son E.B.V., who was born December 18, 2002. We affirm.

The following circumstances resulted in the judgment from which appeal is taken, as developed during the trial of the matter. The New Jersey Division of Youth and Family Services' (Division) first contact with the family occurred on January 11, 2008, when V.N.V. was taken to Newark Beth Israel Medical Center (NBIMC) for psychiatric evaluation. While there, V.N.V. reported that she was experiencing depression, believed the FBI was following and seeking to harm her, and also believed that "many cats and dogs" were following her. She admitted she had not eaten or slept for several days and was living intermittently in her car with her child. V.N.V. was discharged on January 17, with prescriptions for anti-psychotic medication and instructions to return for follow-up treatment.

V.N.V. and E.B.V. subsequently moved into a new apartment. On February 6, 2008, a Division worker visited with the family and V.N.V. reported that "things were fine." She denied receiving either a diagnosis or a prescription from the hospital. E.V.B. was also interviewed; he indicated he liked the new apartment and that "he was fine."

On June 20, 2008, the Division received a referral that E.B.V. had been infected with ringworm for some time and was apparently not being treated for the condition. The Division contacted the school nurse, who was aware of the ringworm, and said V.N.V. was taking the child to the doctor.

It was not until approximately a month later that the Division learned that V.N.V. was not taking any of her prescribed medication and was keeping herself and her child locked at home during the day. E.B.V.'s ringworm infection had worsened, and he was sleeping on a mattress on the kitchen floor.

A few days later, on July 30, 2008, when a Division worker visited V.N.V.'s home, she refused to produce the ringworm medication, to provide the phone number of his treating physician, or to explain why there was a mattress on the kitchen floor. During the visit, V.N.V. became so agitated that she was transported to the East Orange General Hospital Crisis Center for a mental health screening. E.B.V. was removed on an emergent basis pursuant to N.J.S.A. 9:6-8.29. Although initially placed in a foster home, within a little over two months E.B.V. moved to the home of his maternal grandparents, where he has remained since.

The Division arranged for V.N.V. to be evaluated on October 28, 2008, by Dr. Diane W. McCabe, a psychologist. V.N.V. informed McCabe that she was no longer taking any prescribed medication, but could not recall when she stopped, the name of the medication, the condition for which it was prescribed, or the prescribing physician's name. McCabe concluded that

V.N.V.'s behavior was consistent with an earlier diagnosis of major depressive disorder with psychotic features, and that

V.N.V.'s failure to comply with her medication regimen posed a risk to E.B.V. In accordance with McCabe's recommendation,

V.N.V. was referred to an outpatient clinic at East Orange General Hospital, where in January 2009, she began to attend individual therapy on a weekly basis.

After the completion of the evaluation, a Title Nine factfinding hearing was conducted. On November 19, 2008, the Family Part judge found that V.N.V. had abused or neglected E.B.V. At this juncture, the Division's permanency plan called for reunification of mother and child.

On June 10, 2009, V.N.V. underwent a psychiatric evaluation by Dr. Vivian C. Shnaidman. Shnaidman recommended an examination to eliminate organicity as the source for V.N.V.'s visual hallucinations, but diagnosed her as suffering from chronic paranoid schizophrenia. In her opinion, continued psychiatric treatment was "non-negotiable" if V.N.V. wanted unlimited access to her child.

V.N.V. told Shnaidman that she had been prescribed medication but was no longer taking it. She also reported that she only started therapy in March 2009 and attended until the day before the interview. V.N.V. explained that the doctor referred her to a therapist, but the therapist did not feel it was necessary for her to take medication. During the course of the interview, V.N.V. admitted to Shnaidman that she often spent several days without changing her clothes, had slept at the Irvington bus station "once or twice[,]" and sometimes approached total strangers on the street to talk to them. As Shnaidman said in her report, "because of [V.N.V.'s] delusions and hallucinations, she feels that what is best for her son is to sleep on the kitchen floor or in the bus terminal." Shnaidman concluded that V.N.V. posed a danger to her child because of her mental health disorder and her delusions. She was not capable of living independently for long periods of time, nor should the child be left with her unsupervised. Shnaidman also said that "permanent placement with the grandparents would probably be the best solution, because even with the best psychiatric treatment in the world, [V.N.V.] may never regain a totally normal mental status."

On August 18, 2009, V.N.V. attempted to attend a parenting skills class offered by Final Stop arranged by the Division. Unfortunately, Final Stop had earlier determined, based on

V.N.V.'s psychological assessment, that she required a higher level of care than they could provide. When V.N.V. arrived at the facility, a representative of Final Stop reported that she appeared "agitated, unfocused and anxious." V.N.V. told the Final Stop employee that she had lost her job and was homeless.

V.N.V. ultimately completed a parenting skills class at a different agency.

On January 21, 2010, V.N.V. was readmitted to NBIMC because her outpatient program reported she was exhibiting "bizarre behavior, agitation, and paranoia." She was discharged eleven days later with instructions to enroll in the NBIMC partial hospital program.

On this occasion, V.N.V. complied with treatment for five months. She exhibited improvements in functionality and expressed interest in securing employment or volunteer work. She "graduated" from the partial hospital program at the end of June, based upon her treatment team's assessment that she was ready to be transferred to outpatient treatment. V.N.V. was scheduled for an outpatient appointment on July 12, 2010, but rescheduled and ultimately never appeared. During this time she was homeless and spent parts of her day with E.B.V. at her parents' home and nights at Newark Penn Station.

By this juncture, the initial permanency plan for V.N.V. and E.B.V. changed from reunification to termination of V.N.V.'s parental rights and adoption by the maternal grandparents, who had supervised V.N.V.'s visitation with the child at their home since the initial placement. On November 29, 2010, the Division filed a complaint for guardianship.

During the guardianship trial, the Division moved into evidence the bonding evaluations between the child, his mother, and his maternal grandparents, conducted by Elayne Weitz, a psychologist, in March and April 2011. Weitz's bonding evaluation indicated that E.B.V. suffered from attention deficit hyperactivity disorder, is "not an easy child to parent[,]" and that V.N.V.'s inability to consistently comply with a medication regimen rendered her "not capable of caring for anyone else." Weitz found that E.B.V. had bonded with his grandparents, and that removing him from their care would "cause severe and enduring harm."

Weitz also found that the bond between V.N.V. and E.B.V. "indicate[s] insecurity and ambivalence. Theirs is not a healthy bond." Although the psychologist did not question their love for each other, they were "not completely comfortable with each other[,]" and the child was oppositional and defiant towards his mother, by the end of the session actually running away from her. In the psychologist's opinion, "the unpredictable and confusing nature of [V.N.V.'s] personality and behavior . . . have negatively affected this relationship." As a result, termination of parental rights, in Weitz's opinion, "will not cause [E.B.V.] severe and enduring harm." She also opined that E.B.V.'s relationship with his maternal grandparents was "sufficiently strong that they can help him through additional feelings of loss he may experience over time" as a result of termination of parental rights.

During the trial, the Division also presented the testimony of a caseworker who recounted the history of referrals and the circumstances which resulted in E.B.V.'s removal from V.N.V.'s care on an emergent basis. The caseworker said that V.N.V. explained she did not take her medication because it "makes her sick . . . ."

V.N.V., who testified on her own behalf, said she had not yet accepted her diagnosis of schizophrenia and admitted that she was not in treatment. Although she acknowledged that the prescribed medication stabilized her, she claimed she was unable to afford it, but had never asked for assistance in paying for it. V.N.V. attributed her failure to follow through in treatment after her graduation from the partial hospitalization program to her lack of stable housing or income. Although she professed confidence in her ability to care for her child, she also admitted she was unsure whether she "could parent him anymore" after his removal from her care. V.N.V. could not remember the amount of her disability benefits, but claimed that she would be eligible for additional Social Security assistance in the event she regained custody of E.B.V. At the time of trial, she was living in a one-bedroom apartment in an adults-only senior housing facility but believed that there were separate accommodations available for parents with children.

The trial judge determined that the Division had satisfied each of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. First, the trial judge found that E.B.V.'s untreated ringworm infection, together with the fact he was sleeping on V.N.V.'s kitchen floor while being locked inside her home all day, demonstrated that his safety, health, or development had been endangered by V.N.V.'s conduct. Second, she opined that V.N.V.'s inability to accept and comply with her medication regimen demonstrated an unwillingness or inability to eliminate the harm facing E.B.V. Third, the judge found that the Division had made reasonable efforts to provide services to V.N.V., as demonstrated by the various case plans, evaluations, and treatment, and the judge further determined that termination of her parental rights was the only feasible option, kinship legal guardianship (KLG) not being available. She concluded that termination of V.N.V.'s parental rights would do more good than harm because the child would "suffer a greater harm from the termination of the relationship with his maternal grandparents than from a termination of parental rights from [V.N.V.]."

On appeal, V.N.V. raises the following issues for our

consideration:

POINT I

THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL RIGHTS OF V.V. TO [E.B.V.] WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.

1. The Division Failed to Prove by Clear and Convincing Evidence that V.V. is Unable or Unwilling to Eliminate the Harm Facing [E.B.V.] or is Unable and Unwilling to Provide a Safe and Stable Home for [E.B.V.] and the Delay of Permanent Placement Will Add to the Harm.

2. The Division Failed to Prove by Clear and Convincing Evidence that it had Made Reasonable Efforts Toward Reunification and the Trial Court Erred in its Consideration of Kinship Legal Guardianship.

3. The Division Failed to Prove by Clear and Convincing Evidence that Termination of Parental Rights Will Not Do More Harm than Good.

POINT II

THE TRIAL COURT COMMITTED LEGAL ERROR IN MAKING ITS FINDINGS THUS MERITING THIS COURT'S DE NOVO REVIEW.

1. The Trial Court Erred in Applying the "ADA" to this Matter.

2. The Trial Court Erred in Admitting Dr. [Sh]naidman's Report.

Our task is to determine whether the trial court's decision "was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice . . . .'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In fact, "'because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding.'" N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 112 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Moreover, consideration of the four prongs of the statutory test must be made as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Clear and convincing" evidence is evidence which results in a "firm belief or conviction as to the truth" sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960).

Furthermore, we assess the trial court's determination in light of the statutory four-prong test for termination:

(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 [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. [N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 241-42 (App. Div. 2010) (quoting N.J.S.A. 30:4C-15.1(a)), certif. denied, 205 N.J. 519 (2011).]

These standards, "neither discrete nor separate . . . [,] overlap to provide a composite picture of what may be necessary to advance the best interests of the children." Id. at 242. We are satisfied after our review of the record that the Division met the statutory test by clear and convincing evidence.

V.N.V.'s first claim of error, combining the first and second statutory prongs, is that the Division failed to prove by clear and convincing evidence that she was unable or unwilling to eliminate the harm facing E.B.V. or is unable or unwilling to provide a safe and stable home for him, and that the delay of permanent placement will only add to the harm. See N.J.S.A. 30:4C-15.1(a). On this score, we examine the Family Part judge's determination as to "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. The relevant inquiry is "whether the parent can become fit in time to meet the needs of the child." T.S., supra, 417 N.J. Super. at 244.

In making its decision, the trial judge referred to

V.N.V.'s diagnosis as one of paranoid schizophrenia. The precise nature of V.N.V.'s diagnosis is not so clear. In January 2008, when she was discharged from her first hospitalization while in contact with the Division, her diagnosis was one of major depressive disorder with psychotic features. In October 2008, McCabe agreed with that diagnosis.

When hospitalized in May 2009, the physicians at East Orange General Hospital diagnosed V.N.V. with "[a]djustment

[d]isorder [d]epressed [m]ood." Less than two months later, however, Shnaidman opined that the appropriate diagnosis was one of "[c]hronic [p]aranoid [s]chizophrenia." In January 2010, NBIMC physicians discharged V.N.V. with a diagnosis of "[m]ajor depressive disorder with psychotic features." But a February 2010 report from the partial hospital program notes that V.N.V. had been diagnosed as suffering from "[p]aranoid [s]chizophrenia . . . ."

Although the judge made a passing reference to the least documented diagnosis, the clear and convincing evidence established that V.N.V., whose diagnoses are quite serious, did not and could not consistently avail herself of mental health services or comply with her medication regimen. The majority of the time the Division has been involved with the family, she has been homeless. She cannot care for herself, and as a result is unable or unwilling to eliminate the harm her illness poses to her son. She does not accept that it is necessary for her to comply with her medication regimen. Even knowing that without compliance with psychiatric treatment, she did not regain custody of her child, she could not engage in the treatment process.

Weitz expressed particular concern for this child because he suffers from serious behavioral problems in school, as well as anxiety. He has a particular need for stability and predictability, and the delay in providing him with a safe, stable, and permanent home places him at further risk.

As Weitz opined, V.N.V. "will always experience difficulties relating to people, thinking clearly, using good judgment, and functioning independently. Taking care of herself is an effort. She is not capable of caring for anyone else." Therefore, we agree with the trial judge's conclusion that the first and second prongs of the statutory test were met.

The third prong of the statutory test, which V.N.V. addresses in her second claim of error, requires proof that the Division has engaged in "diligent efforts to reunite the family." K.H.O., supra, 161 N.J. at 354. These efforts, defined in the statute as "reasonable efforts[,]" oblige the Division to assist the parent in providing the child with a safe and secure home and in reinforcing family structure. The reasonable efforts should be tailored to fit the unique circumstances of each family. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). In this case, the Division tailored its efforts to fit the unique circumstances of V.N.V.'s lifestyle and E.B.V.'s needs. The initial placement with the maternal grandparents was an example, particularly during the time that reunification was the Division's goal, to support the family structure. V.N.V. was urged to visit daily, and did so. The child was provided with services ancillary to his unique educational and emotional needs, including a comprehensive health evaluation, individualized education plans, and therapy through the TLC program at NBIMC.

V.N.V. was provided with a monthly bus card. She was given case plans, and psychiatric and psychological evaluations were completed and recommendations made for her treatment. Once

V.N.V.'s feelings about her own mother became more negative, visitation was supervised by the grandfather. The Division provided mental health services which V.N.V. ignored. In this circumstance, the Division cannot be faulted for failing to do more. Therefore, we see no error in the judge's conclusion that the Division met its burden of proof by clear and convincing evidence as to the reasonableness of their efforts to reunify the family.

The claim that the court could have considered KLJ as an alternative lacks merit. KLJ is an option only where adoption is neither feasible nor likely. See P.P., supra, 180 N.J. at 507 (quoting N.J.S.A. 3B:12A-1). It cannot be used to defend against termination of parental rights, and cannot be forced upon foster parents, in this case the child's grandparents, who express a desire to adopt. See N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 135-37 (App. Div. 2011).

V.N.V. also disputes the court's finding that the Division had proved by clear and convincing evidence that termination of parental rights would not do more harm than good. V.N.V. has little ability to care for herself, and cannot care for her child. The bonding evaluations established that severing E.B.V.'s life with his grandparents would cause him "severe and enduring harm[,]" while severing his relationship with his mother would not. His grandparents are in a better position to offer him comfort for the inevitable sense of loss he will experience as a result of the termination, whereas V.N.V. has no ability to deal with E.B.V.'s emotional or intellectual needs, much less his emotional state were he to be removed from the maternal grandparents' care. Accordingly, we agree that the Division met its burden of proof as to this prong of the statute as well.

V.N.V. further contends that the trial court's passing reference to the "ADA" constituted legal error. The trial court's reference to V.N.V.'s mental health not constituting a defense to termination of parental rights was, as she explained it, "just by way of [prologue]." And the ADA cannot act as a defense to the termination of parental rights. See A.G., supra, 344 N.J. Super. at 442. It is not discriminatory under our law for a parent who is mentally disabled to be held to the same standard in guardianship proceedings as those who are not. The logic behind this analysis is self-evident - that a child's needs are paramount. Ibid. Therefore, the judge's reference was not legal error.

Lastly, V.N.V. alleges the trial court erred in admitting Shnaidman's report because she did not testify. Since V.N.V. expressly consented to the admission of this report, this claim of error must also be rejected.

As a general rule, "issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 339 (2010) (citing Cnty. of Essex v. First Union Nat'l Bank, 186 N.J. 46, 51 (2006)). The doctrine of invited error, predicated on considerations of fairness and procedural integrity, operates to bar a disappointed litigant from arguing on appeal that an adverse decision below was the product of error, when that party urged the lower court to adopt the proposition now alleged to be error. [Id. at 340 (quoting Brett v. Great Am. Recreation, 144 N.J. 479, 503 (1996)).]

Where a parent consents to the admission of a document in a termination of parental rights proceeding, thereby "depriv[ing] the Division of the opportunity to overcome any objection and depriv[ing] the trial court of the necessity to make a ruling based on the arguments presented by both sides[,]" id. at 341, the doctrine of invited error precludes that parent from objecting to the admission of the document absent a showing that application of the doctrine would "cause a fundamental miscarriage of justice." Id. at 342 (quoting Brett, supra, 144 N.J. at 508).

B.M., upon which V.N.V. relies, created an exception to the general rule articulated in M.C., III. 413 N.J. Super. 118, 128-29 (App. Div. 2010). In B.M., the Division sought to terminate the parental rights of T.B. and B.M., the parents of Z.B., after Z.B. was born with cocaine in his system. Id. at 123. On the first day of trial, the Division produced a previously undisclosed medical report which concluded that Z.B. exhibited symptoms "consistent with Fetal Alcohol Spectrum Disorder . . . ." Id. at 124. The Division had not previously alleged that T.B. consumed sufficient alcohol during her pregnancy to cause Z.B. to suffer from the disorder. Id. at 127. On appeal, we reversed on the basis that: (1) the medical report constituted inadmissible hearsay because the Division failed to establish the business record prerequisites of N.J.R.E. 803(c)(6); and (2) the Division's failure to provide the report to Z.B.'s parents, or to give them any other pre-trial notice of the alcohol-related allegations, constituted a denial of due process. Id. at 122-23. Although Z.B.'s parents did not object to admission of the report at the time of trial, because Z.B.'s parents, unlike the parents in M.C., III, were not "expressly asked . . . whether they had any objection[,]" the cases were distinguished. Id. at 128. Moreover, unlike in M.C., III, the medical report in B.M. "was not simply one additional piece of evidence" in support of the Division's case but rather "a document that introduced a new charge of abuse . . . ." Id. at 129.

V.N.V.'s reliance upon B.M. is therefore misplaced. V.N.V. expressly consented to the admission of Shnaidman's report in the proceeding below:

[Counsel for the Division]: To just proceed at this point with a pretrial conference that's also scheduled. . . . We have submitted to all counsel P-1 through P-50 and it's -- and we have not received any objections from any attorneys. So at this time we would like to move those into evidence.

[Law Guardian]: No objection, Your Honor.

THE COURT: [Counsel for V.N.V.]. [Counsel for V.N.V.]: No objections at this time, Judge.

THE COURT: So admitted.

Additionally, Shnaidman's report did not raise any new charge of abuse against V.N.V. It merely corroborated the allegations set forth in the Division's pleadings from the commencement of litigation nearly three years earlier (i.e., that V.N.V.'s mental health issues interfered with her ability to care for E.B.V). Moreover, even under the B.M. exception, V.N.V.'s consent to the admission of Shnaidman's report bars her from now objecting that Shnaidman's report was inadmissible on the basis of the Division's failure to establish the prerequisites of N.J.R.E. 803(c)(6). See id. at 129 (concluding that the medical report would be inadmissible "unless appellants consented to its admission or [the Division was] able to establish the prerequisites for its admission as a business record under N.J.R.E. 803(c)(6)").

Because V.N.V. consented to the admission of Shnaidman's report, and because V.N.V. has not demonstrated that such admission resulted in a "fundamental miscarriage of justice[,]" the doctrine of invited error bars V.N.V. from challenging the admission of Shnaidman's report on appeal. M.C., III, supra, 201 N.J. at 341-342. Accordingly, this claim too lacks merit.

Affirmed.

20120601

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