On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0073-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012
Before Judges Koblitz and Lisa.
Defendant appeals from the June 30, 2011 order of guardianship terminating her parental rights to her son, J.D.F., who was born in October 2009.*fn1 Defendant argues that the Division of Youth and Family Services (Division)*fn2 failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. Defendant also argues that she was denied the effective assistance of counsel. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm. We are satisfied from our review of the record that the Division presented sufficient evidence to support the trial court's finding that all four prongs were clearly and convincingly established. We are also satisfied that defendant received the effective assistance of counsel. We therefore affirm.
The underlying circumstance that led to J.D.F.'s removal from defendant immediately after his birth and to the ultimate termination of defendant's parental rights is her longstanding history of mental illness and persistent non-compliance with treatment and medications. This has rendered defendant incapable of parenting a child. We begin our discussion by briefly describing this background.
Defendant was born in September 1966. Therefore, when J.D.F. was born, she was forty-three years old. Her mental health issues first manifested themselves at least as early as January 1995, when defendant was twenty-eight years old. Defendant has been diagnosed at various times since 1995 with psychosis, paranoid schizophrenia, and schizoaffective disorder. Her symptoms include paranoia and delusional thinking.
Defendant was hospitalized for her mental illness in January 1995, July to August 1995, April 1998, and February 2000. She demonstrated a history of non-compliance with medications during these years. From 2000 to early 2007, defendant underwent outpatient psychiatric treatment at the University Behavioral Health Clinic at the University of Medicine and Dentistry of New Jersey (UMDNJ). She was terminated from the program in February 2007. Although the reason for her termination is unclear, the records reflect that she refused to medicate.
Defendant was subsequently treated at the Mount Carmel Guild outpatient program. The records of that facility reflect further non-compliance with medications. She was released from treatment at Mount Carmel in 2008.
We now turn to the events surrounding the birth of J.D.F. on October 28, 2009. In September 2009, the Division received a referral from Saint Barnabas Hospital indicating that defendant was thirty-two weeks pregnant with untreated paranoid schizophrenia. According to the referral, defendant did not believe she was pregnant, and thus had not had any prenatal care. She believed she was being poisoned by the nuns at the facility in Newark where she had been living for about five years.
In its child welfare assessment conducted the next day, the Division found that defendant denied being pregnant, stating that it "must be a mechanical baby" inside of her and that she would not believe she was pregnant until it came out of her. Further, she said that if she was indeed pregnant, she would "want someone to adopt it."
The care coordinator at defendant's residential facility expressed her view that defendant would not be capable of parenting because although defendant obviously needed medication for her illness, she refused to take it, repeatedly saying she did not need it. The Division recommended psychiatric evaluations and supervision of defendant until delivery.
Another referral was received in early October 2009 from UMDNJ after defendant's prenatal visit, in which she stated "the baby is a mechanical device . . . that . . . felt like a rat in a maze." Immediately after this referral, a Division caseworker spoke to defendant and indicated in her contact sheet that defendant said:
I'm fine and no I haven't made any plans for my child because I don't believe there is a child in my stomach. I have nothing else to say to you because THERE IS NO BAB[Y]. I WILL CALL YOU ONCE THE THING COMES OUT IF THERE IS SUCH A THING; UNTIL THEN I HAVE NOTHING TO SAY.
When J.D.F. was born in October 2009, UMDNJ reported the birth to the Division because of concerns about defendant's psychiatric condition. Immediately after giving birth, defendant was placed in UMDNJ's psychiatric ward and later referred to Community Psychiatric Institute for treatment.
The Division effectuated a Dodd removal pursuant to N.J.S.A. 9:6-8.29 and -8.30. J.D.F. was temporarily placed in foster care. The Division inquired of defendant and of J.D.F.'s father as to suitable relatives who might accept custody. Some were ruled out, expressing no interest, and the investigation led to defendant's sister, E.F.*fn3 E.F. said she was prepared to care for her nephew. The investigation revealed that she was a suitable caretaker and she was approved for that purpose. J.D.F. was placed with E.F. on January 29, 2010. He has remained in her care ever since. He is doing very well in her care. E.F. wishes to adopt J.D.F. Both parents of J.D.F. have been allowed regular weekly visitation, which E.F. has encouraged. E.F. has also allowed her sister, defendant, to spend additional time with J.D.F. on special occasions. E.F. has expressed a desire to continue to allow both parents to maintain contact with J.D.F. after she adopts him.
The Division offered many services to defendant, including psychiatric and behavioral health programs, psychological and psychiatric evaluations, and transportation assistance. Defendant's participation in these programs was sporadic. She was discharged from Community Psychiatric Institute in December 2010 for non-compliance. She consistently failed to take prescribed medications and did not appear for all scheduled evaluations.
As we have stated, defendant was provided weekly supervised visitation with J.D.F. She attended most of them and her behavior was generally positive, although on some occasions her conduct was erratic and bizarre.
Throughout the remainder of 2010 and into the beginning of 2011, defendant expressed her wish to regain custody of her son in the future, but recognized that she could not presently care for him. She also recognized that her sister was "the best place for him to be since she is family."
At trial, the Division presented the testimony of two caseworkers and two mental health experts, Dr. Mark Singer, a psychologist, and ...