On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0183-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 24, 2012 -
Before Judges Graves, Espinosa, and Guadagno.
On August 10, 2011, the trial court entered judgment terminating the parental rights of S.N.B. (Sara)*fn2 and J.A.B. (James) to their daughter, E.Z.B.-B. (Edna). Sara appeals, contending that her constitutional rights were violated when she was not permitted to attend the trial in this matter. In addition, Sara challenges the adequacy of the evidence presented by the Division of Youth and Family Services (DYFS or the Division) to prove that termination of parental rights is in the best interests of the child. See N.J.S.A. 30:4C-15.1(a). Sara also claims that she was denied the opportunity to gather and present expert proofs. James did not appear for trial and has not appealed.
After considering the record in light of the applicable law, we are satisfied that the findings and conclusions of the trial court are firmly supported by substantial, credible evidence in the record as a whole and there were no violations of defendant's due process rights.
Sara is the mother of three children, Edna, who is now thirteen, D.B. (Doris) and J.B.B. (John). None of her children are in her care. In 2007, Doris was placed in the custody of her biological father, H.H. (Harold), and his wife D.H. (Danielle). John was removed from Sara's care in 2009 and placed in the custody of his father in 2010.
The Division initially became involved with this family in 1999 in response to an allegation of abuse which was later found to be unsubstantiated. Since that time, eleven more referrals were made to DYFS, with three of them substantiated for abuse or neglect.
In June 2006, the Division responded to an allegation that Edna and Doris were being left unattended in a dirty apartment without electricity. Initially, Sara would not allow the caseworker into her home to investigate. When the police were called to assist, it was determined the home was in deplorable condition and the children had no food. Sara was provided with a parent aide and scheduled for a psychiatric evaluation. The following month, DYFS received another report that Edna and Doris were being abused. The caseworker found the home in complete disarray with boxes overflowing with trash and the gas turned off. DYFS substantiated the allegation that there was no food for the children.
Sara told the caseworker she suffered from bipolar disorder but did not take prescribed medication as it interfered with her ability to work. The Division scheduled a psychiatric evaluation, but Sara failed to attend several appointments. After Sara's continued failure to properly provide for her children, the Division filed an order to show cause for care and supervision of Edna and Doris in December 2006.
Two weeks later, a caseworker visited the home and found it without heat. Sara had previously agreed to take the children for medical appointments but failed to do so, and Edna was suffering from a sore throat. When the caseworker asked Sara to take Edna to the doctor the following day, she refused. The Division conducted an emergency removal of Edna and Doris shortly thereafter. Edna remained in DYFS custody and was eventually placed with a great aunt, while Doris was placed with her father, Harold.
Throughout 2007, Sara was non-compliant with court orders and failed to show progress in her ability to parent her children. During this time, Edna's therapist reported an increase in negative behaviors by Edna. Edna was acting out in school, and was sent home on multiple occasions. Things worsened on September 21, 2007, when Edna bit a teacher, hit other students, and tried to physically harm herself by intentionally cutting her lip with the metal blade from a pencil sharpener.
Edna was referred to the crisis center at Newark Beth Israel Medical Center where she was diagnosed with ADHD and prescribed Concerta. As Edna's behavior worsened, Sara continued to miss several scheduled visitations with the child.
On November 13, 2007, the trial court accepted the Division's recommendation and changed the permanency goal for Edna from reunification with Sara to termination followed by adoption. On April 1, 2008, after failing to make contact with Sara, the Division filed a complaint seeking guardianship of Edna.
On August 8, 2008, Sara gave birth to John. The Division began to provide services to help her care for the newborn. Sara began to accept services and comply with court orders. Based on this development and the Division's inability to find a permanent placement for Edna, the Family Part dismissed the guardianship complaint and reopened the Title Nine litigation. The permanency goal for Edna was changed back to reunification.
On April 9, 2009, Edna was returned to her mother's care, but, soon thereafter, Sara began to be plagued by many of the same problems that resulted in Edna's earlier removal. Between August and December 2009, Sara and her children were evicted from three shelters for Sara's failure to comply with housing rules including lack of cleanliness, aggressive behavior and violence. After the last eviction, Sara and the children moved to an apartment.
In September 2009, Sara failed to pick up Edna from school and the child's emergency contact had to pick her up. Edna's teacher informed the caseworker that Edna had regressed since being placed back with her mother. The child displayed poor hygiene in school, was very disruptive, had excessive absences, and was frequently late for class. In addition, Sara refused to administer prescribed medication for Edna's ADHD. The teacher was so concerned, that she wrote directly to the Family Part judge overseeing the litigation.
When the caseworker interviewed Edna, the child reported that she no longer wanted to live with her mother. Edna claimed she was forced to care for her one-year-old brother by getting him up in the morning, then bathing and dressing him. In the evening, Edna claimed she did not get enough sleep as she had to get up three times each night to give her brother milk while her mother slept. Edna said her mother favored her brother and frequently told her, "I'm not going to lose my son because of you." While Sara denied that she forced Edna to care for John, she admitted making the statements regarding John.
In December 2009, the Division sought custody of Edna and John and they were removed from Sara's care. On March 5, 2010, Sara appeared before the Family Part and stipulated to neglect by failing to insure that Edna attended school. John was placed with his father and Edna was placed with Harold and Danielle, where she has remained.
On April 5, 2010, the Family Part entered an amended permanency order approving the plan to terminate Sara's parental rights. On May 17, 2010, the Division filed a complaint for guardianship of Edna against Sara and James. After her placement with Harold and Danielle, Edna began to attend counseling and showed "healthy signs of a child normative to her age."
The guardianship trial was scheduled to begin on May 19, 2011. On May 11, 2011 a pretrial conference was held. Sara's counsel presented a note from Sara's doctor indicating that Sara was admitted to the hospital on April 19, 2011 to treat an outbreak of MRSA.*fn3 Although the recommended treatment protocol required Sara to be hospitalized for five weeks, she discharged herself, against her doctors' advice, on May 9. Sara came to court with an open intravenous catheter port in her arm.
Fearing that she might be contagious, the trial judge initially did not permit Sara in the courtroom, although her attorney was present throughout the proceeding. Sara maintained that she was not contagious, but the judge voiced concern. He asked her attorney to obtain some proof that she was not contagious before allowing her in the courtroom:
[C]ould you get her to a doctor or - - or get me a note from a doctor saying she's not contagious? I know that she's checked herself out of the hospital and she says she's not contagious, but I think I just have - - got to get some type indication she's not contagious, and then let her come in and participate in trial.
Sara's counsel agreed and said she would "have to talk to [Sara] about it, and have her doctor maybe fax me something." The attorneys then attempted to address some pretrial matters, but the court refused to do anything substantive without Sara in the courtroom and ordered a brief adjournment. The judge indicated that if Sara reentered the hospital he would be willing to adjourn the trial; if she did not return to the hospital, the judge simply wanted to make sure she was not contagious. If Sara could not obtain proof of noncontagiousness, the judge would consider allowing her to appear by phone.
When Sara's counsel left the courtroom and informed Sara of the judge's position, she became "very upset" and left the courthouse before her ...