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New Jersey Division of Youth and Family Services v. E.F

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 12, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
E.F., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.D.F., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0073-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 Dr. Alexander Iofin, a psychiatrist.

Singer diagnosed defendant as suffering from psychosis and paranoid schizophrenia. In his July 16, 2010 report, he stated:

In her present state, the data clearly suggest that [defendant] cannot independently parent [J.D.F.]. In reality, [defendant], in her present state, likely has difficulty managing her own life. At the same time, the data does suggest that [defendant] is an intelligent individual who has been motivated to achieve goals in her life. While such characteristics are positive with respect to her life course, [defendant's] chronic mental illness is likely to continue to negatively impact her life and, as she indicated that she will not take medication, will preclude her from parenting independently in the future. In actuality, without appropriate treatment, [defendant] should not have unsupervised contact with her child as she is likely to remain psychotic.

[Defendant's] resistance to treating her disorder is consistent with the objective test data suggesting that [defendant] minimizes personal faults and holds unrealistically positive perceptions of her level of psychological functioning. Until [defendant] can realistically understand her mental health issues and the need to treat these issues, the prognosis for successful treatment is poor. Unfortunately, in her psychotic state, [defendant] is not likely to accept the reality of her mental health issues and the steps needed to address these issues. This is not to suggest that [defendant] should not be offered treatment. This finding simply reflects the poor prognosis regarding treatment outcome.

[Defendant] has made it clear that she will not take medication. Until [defendant] reconsiders this, or is actively forced to treat her disorder, she cannot be considered as a placement option for [J.D.F.].

While the prognosis for independent parenting is poor, if [defendant] is willing to comply with all psychological and psychiatric protocols, the prognosis would improve. If [defendant] steadfastly holds to her view that she will not appropriately treat her disorder medically, additional services, including parenting skills, will be of little, [i]f any benefit. Should she not comply with these protocols, [the Division] should explore other placement options for [J.D.F.] and not provide [defendant] with additional services related to parenting as these services will not provide the needed benefit.

In his supplemental report in May 2011, Singer concluded that defendant was not in any better position to parent at present, in comparison to the psychological data from July 2010. She is experiencing a chronic, significant mental disorder which will continue to limit her ability to function within reality. Furthermore, her resistance to medication and treatment will likely result in further deterioration in functioning. As that occurs, any child in her care would be at a significant risk of harm.

In his August 27, 2010 report, Iofin also diagnosed defendant as suffering from paranoid schizophrenia. Iofin concluded that defendant was "suffering from severe mental illness, and prognosis for her recovery is currently poor." Moreover, "she is not suitable to take minimally adequate care of any minor child now or in the foreseeable future."

Singer and Iofin concluded that defendant was not capable of parenting her son, nor would she become so in the foreseeable future, primarily because she was unwilling to medicate her mental illness. Further, placing the child with his mother would put him at significant risk of harm. Singer additionally stated that J.D.F.'s need for permanency outweighed any kind of bond he had with defendant, which was relatively weak given his young age.

During the four-day trial, in addition to the live testimony of the four witnesses we have described, the Division also placed into evidence voluminous documentary evidence, including records pertaining to defendant's mental health illness and treatment for that illness at various facilities, reports of Drs. Singer and Iofin, Division contact sheets, and the like. Defendant did not testify. Neither defendant nor the law guardian called any lay witnesses or mental health experts. No bonding evaluations were conducted.

Based upon this evidence, the trial court rendered an oral decision on June 29, 2011, finding that the Division clearly and convincingly proved all four prongs of the best interests of the child test. The court entered judgment on June 30, 2011. This appeal followed.

II.

We now address defendant's contention that the Division failed to produce sufficient evidence to clearly and convincingly prove the four prongs of the best interests of the child test.

A.

We first set forth the basic principles guiding our review.

"Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Nevertheless, that right is not absolute, and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation and internal quotation marks omitted).

When seeking to terminate parental rights, the State must prove by clear and convincing evidence each of the following four standards:

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

See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). Application of the four-factor test requires a fact-sensitive approach, and the factors "'are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children.'" M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)).

"Termination of parental rights permanently cuts off the relationship between children and their biological parents." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child[ren] harm." Ibid. "Presumptions of parental unfitness may not be used in [termination] proceedings . . . and all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.

Our standard of appellate review dictates that "the family court's decision to terminate parental rights" should not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293).

B.

Applying these principles, our review of the record satisfies us that the court's finding that the Division clearly and convincingly proved all four prongs of the best interests test is supported by substantial credible evidence.

Defendant argues that the proofs regarding the first prong were deficient because they consisted primarily of "psychological and psychiatric testimony that was overly generalized, purely speculative and based entirely on initial one-time consultative examinations performed almost one year prior [to trial]." Defendant contends that this evidence fell far from clearly and convincingly establishing that she has ever, or will ever, endanger J.D.F.'s safety, health or development. Defendant points to evidence in the record illustrating that she interacted appropriately with her son on many occasions, displayed affection for him, and was attentive to his needs. She contends that, contrary to the court's finding, she has made great strides to becoming a fit parent and indeed is completely capable of becoming a fit parent. We do not agree.

The Division was not required, of course, to show that defendant actually harmed J.D.F. The potential for future harm is sufficient. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The trial court's essential finding on the first prong was that defendant was unable to effectively parent a child and comport her behavior so the child's needs would be met. As a result, defendant presented a clear and convincing risk of harm to J.D.F. because she failed to accept and treat her mental illness. The record contains overwhelming evidence, including the experts' opinions, to support this finding.

Further, the evidence is bereft of any indication that defendant was currently treating her mental illness. Notwithstanding some past compliance with treatment programs, the record is replete with examples of defendant's refusals to medicate. Indeed, as of January 2011, defendant informed the court that she was not currently medicating.

We find unpersuasive defendant's reliance on G.L., supra, and F.M., supra. In our view, these cases are distinguishable. In G.L., there was no proof that the mother had harmed her child or would endanger him; rather, it was the father who had allegedly shaken the baby. G.L., supra, 191 N.J. at 607. The mother complied with all services provided by the Division, as a result of which the Division failed to show that she was unwilling or unable to eliminate the threat posed by the father to the infant. Ibid. The mother in G.L. did not suffer from a mental illness, did not refuse medication for same, and was not non-compliant with Division-provided services. In F.M., supra, 375 N.J. Super. at 262, the mother complied with the psychologist's recommendations, and the judge overlooked the extensive efforts she had made and accomplishments she had achieved in her parenting and anger management classes. Further, some of the judge's critical findings about the mother were unsupported by the record. Id. at 259-60. We noted that although the mother required additional time in therapy, that factor alone did not support terminating parental rights. Id. at 263. None of those circumstances are present here.

As to the second prong, the trial court adopted its findings with respect to the first prong, stating "that the Division's proofs as to prong one support a finding as to prong two." Defendant argues that the evidence was lacking in this regard because she demonstrated significant compliance with mental health treatment and other programs, demonstrating a willingness and ability to provide a stable and safe home for J.D.F.

The second prong requires a showing of an unwillingness or inability to eliminate the harm facing the child or to provide a safe and stable home for the child and that delay of permanent placement will add to the harm. See K.H.O., supra, 161 N.J. at 352. The two components of harm embodied in the first and second prongs are related, and "evidence that supports one informs and may support the other[.]" In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). As with the first prong, we are satisfied that the evidence overwhelmingly supports the court's finding that defendant remains unable to care for her child due to her mental illness and her refusal to treat it on a consistent basis.

The third prong requires the Division to undertake "reasonable efforts" to provide necessary services to help the parent to correct the circumstances which led to the removal, and requires the court to consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).

"The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435. Where a parent suffers from a mental disability, "[t]he Division's efforts in providing classes and parenting programs must by their very nature take into consideration the abilities and mental conditions of the parents." Id. at 442. Nevertheless, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success. Thus, the parent's failure to become a caretaker for his [or her] children is not determinative of the sufficiency of [Division's] efforts at family reunification." D.M.H., supra, 161 N.J. at 393.

Under the circumstances presented here, the Division made reasonable efforts. Defendant was provided with supervised visitation, transportation assistance, psychiatric treatment, and psychological evaluations. However, she was non-compliant with psychiatric treatment, as evidenced by her termination from the program offered by Community Psychiatric Institute, non-attendance at psychological evaluations, and refusal to medicate. It is unclear when or if defendant will ever be ready to parent. N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("Children have their own rights, including the right to a permanent, safe and stable placement."), certif. denied, 180 N.J. 456 (2004). And, the Division considered alternatives to termination of parental rights, including placement with family members. N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003) ("It is well established that it is the Division's policy to place children with relatives whenever possible.").

Further, defendant does not identify which specific services the Division failed to provide, except for parenting skills training. Her argument ignores the qualification Singer placed upon the recommended treatment; that is, it should be offered only if defendant's mental condition stabilized. That never occurred.

As to the fourth prong, defendant argues that the Division failed to establish that termination would not do more harm than good because of the absence of bonding evaluations. She points out that one of the caseworkers testified that there was clearly a relationship between J.D.F. and his mother and that the Division's visitation records supported that testimony.

In establishing the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. J.C., supra, 129 N.J. at 19. Thus, there are "very few scenarios in which comparative [bonding] evaluations would not be required." A.R., supra, 405 N.J. Super. at 440.

Whether the fourth prong can be established without bonding evaluations requires a fact-sensitive inquiry. On the record before us, we cannot say that the absence of bonding evaluations precluded the Division from carrying its burden of proof on the fourth prong. Defendant's persistent non-compliance with recommended treatment for her mental illness was the overriding factor in proving defendant's unfitness as a parent and that the resultant harm to J.D.F. would be particularly strong if defendant's parental rights were not terminated. On the other side of the coin, the evidence overwhelmingly established that J.D.F. was safe and thriving in E.F.'s home, which is the only home he has ever known. J.D.F. is now two years and eleven months old. He has never lived with defendant. Although she has frequently, but not always, availed herself of the weekly supervised visitation she was granted, there is no evidence that would support a finding that her relationship with her son reflected a strong bond.

Accordingly, in the circumstances of this case, the absence of bonding evaluations did not preclude a finding that the fourth prong was clearly and convincingly established by the totality of the other evidence in the case. We are satisfied that it was.

Further, we point out that both experts opined that J.D.F. would not likely experience a significant and enduring reaction should his relationship with his mother be severed, especially in light of his young age. On the contrary, nothing in the record indicates that defendant would be able to provide J.D.F. with permanency and stability in the foreseeable future. Therefore, the record supports the finding that termination of parental rights would not do more harm than good.

III.

Defendant contends that she was denied effective assistance of counsel because her counsel failed to cross-examine the State's witnesses, failed to demand bonding evaluations, and presented an ineffective summation. We do not agree.

In termination cases, the Supreme Court has adopted the two-part Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), test for determining whether counsel is ineffective: "(1) counsel's performance must be objectively deficient--i.e., it must fall outside the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense--i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" N.J. Div. of Youth & Fam. Servs. v. B.R., 192 N.J. 301, 307 (2007) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697).

A parent whose parental rights have been terminated should proceed in the following manner on an ineffective assistance of counsel claim:

In many cases, the issue will be resolvable on the appeal record alone. For example, if the panel accepts as true appellant's representations regarding the lawyer's shortcomings but determines, on the basis of the full record, that the outcome would not have changed, that will be the end of it.

However, in some cases, a genuine issue of fact may require resolution. In such instances, the panel should, in advance of rendering a full opinion, remand the case to the trial judge for an accelerated hearing (to be completed in no more than fourteen days) followed promptly by an oral decision on the record. The parties should then be permitted simultaneously to exchange supplemental appellate briefs within seven days. Thereafter, the Appellate Division should render an opinion on all issues, including the effectiveness of counsel, as expeditiously as possible. [B.R., supra, 192 N.J. at 311.]

Defendant claims her counsel was ineffective because she failed to cross-examine the Division's caseworkers. She contends such cross-examination would have shown how defendant attended therapy and behaved appropriately during visitation, and this would have precluded a finding that the first prong was established. Similarly, defendant argues that cross-examination about the bonding relationship between defendant and her son, would have precluded a finding that the fourth prong was established. Further, defendant claims the caseworkers should have been cross-examined about E.F.'s "bad childcare habits."

We find no deficiency in this regard. However, even if counsel's conduct was substandard, defendant has not shown that but for the alleged deficiencies, the result would have been different. Even though not cross-examined, one caseworker testified during direct that defendant acted appropriately with her son during visitation and she attended therapy. The other caseworker likewise testified on direct that there was "clearly a relationship" between defendant and J.D.F. In its opinion, the court acknowledged these points. Therefore, defendant was not prejudiced.

Likewise, even though the caseworkers were not cross-examined about J.D.F.'s poor hygiene allegedly caused by E.F.'s care, all of that evidence was in the record, which we trust was reviewed by the trial court. And, defendant acknowledged that if she could not care for her son, then E.F. should care for him.

Further, the failure to demand bonding evaluations did not prejudice defendant, because for the reasons we have explained, they were not necessary in this case.

Next, defendant contends that the State's experts should have been cross-examined regarding the lapse in time between their initial evaluations and trial, and this failure led the court to improperly conclude that the Division established the second prong. However, the court was certainly aware of when the evaluations were conducted, and thus cross-examining on that point would not have altered the termination decision. Further, Singer conducted a supplemental evaluation in May 2011, one month before trial.

Finally, defendant argues that her counsel's summation lacked citation to the record "and essentially consisted of bald assertions with little or no substance." However, there is no authority requiring counsel to provide specific citations to the record during summation. Counsel neither misstated the evidence nor distorted the factual picture. See Bender v. Adelson, 187 N.J. 411, 431 (2006). She highlighted the evidence favorable to her client, and all of that evidence was submitted to the court for its review. Again, defendant was not prejudiced.

Affirmed.


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