October 26, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
S.N.B., DEFENDANT-APPELLANT, AND J.A.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF E.Z.B-B. MINOR.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 attorney could finish her conversation.
The second case management conference was held on May 16, but Sara did
not appear. Her attorney reported that she had sent Sara a letter
reminding her of the need for a note from her doctor and had left
several messages on a phone number provided by Sara,*fn4
but did not hear back. When the judge asked Sara's counsel if
Sara was aware of the trial date, counsel responded that she "sent her
a letter, and I gave her the trial dates
. . . ." The court
observed that Sara's counsel was doing everything she could, under
No, I know, you're in a tough position and I certainly know your [sic] working as hard as you can. Your client at this point - and this isn't to prejudge anything - just isn't talking to you for whatever reason. It makes your job very, very different [sic], and you have a client [to] represent.
When the possibility was raised that Sara might have reentered the hospital, the judge asked her counsel to contact all hospitals in Essex County in an attempt to find her. When Sara's counsel sought a one-week adjournment to locate Sara, the court denied the request: at this time I don't see a basis to adjourn simply because without more she's made herself unavailable to you. I just don't know where she is or why she hasn't been available to you, but if something comes to light . . . through no fault of her own made her unavailable by all means . . . I'll reconsider that.
The law guardian mentioned that she had scheduled a bonding evaluation with Edna but Sara had missed several appointments and the expert had been unable to complete her report. The law guardian then added that Edna was "adamantly against adoption." The judge agreed to conduct an in camera interview of the child during trial.
Sara again failed to appear on May 19 when trial began. Sara's attorney detailed her efforts to contact her client and her suspicions as to why Sara did not attend the trial:
I understand that my client is not here, I did leave her several messages and sent her a letter, and I -- it's my belief that she was -- because she was here last week, I believe that she was put off because she wasn't allowed into the courtroom last week, and that's probably why she's not here today.
The judge noted that the trial date was set on April 7. Although defendant did not appear in court that day, her counsel confirmed that she forwarded the order containing the trial date along with a letter also referencing the trial date to Sara at the address she had designated for receipt of her mail. Counsel followed that with another letter, one week before trial, again noting the trial date. Finally, counsel left messages advising Sara of the trial date on the phone number provided by Sara.
The trial began with the Division calling DYFS caseworker, Courtney Rolley, who testified that she also left a voicemail advising Sara of the trial date on the phone designated by her to receive messages. Rolley called several local hospitals and determined that Sara had not been admitted to any of them.
Rolley's testimony was interrupted to allow the court to conduct an in camera interview of Edna. During the interview, Edna referred to her foster parents, Danielle and Harold, as her "mom and dad." When asked by the judge where she wanted to live, Edna responded:
Court: . . . now that I have all of the places you lived . . . what would be your preference going forward? [Edna:] Um, with what?
Court: To live. [Edna:] Um, Here.
Court: here where you currently are? [Edna:] Um-hum.
Court: That's who you told me you live with now correct? [Edna:] Um-hum.
Court: Okay. That's - - is that your first or second choice? [Edna:] Um, second.
Court: Ok. What's your first choice? [Edna:] Mom.
When trial resumed on May 26, the judge asked for an update on defendant. Her counsel indicated that she sent another letter to Sara but had not heard anything back.
Dr. Mark Singer, a psychologist, performed psychological evaluations of Sara on behalf of DYFS in July 2008 and December 2010. Dr. Singer testified that Sara was not able to prioritize Edna's needs and concluded "based on the totality of the data [Sara] is not a viable parenting option."
Singer also conducted bonding evaluations with Edna, finding that the child was similarly attached to both Sara and her foster parents. Singer concluded that if Edna was reunited with Sara, the child "would regress emotionally and behaviorally." Removal from Danielle and Harold would result in Edna regressing significantly in terms of her behavior. If Sara's parental rights were terminated, the presence of Danielle and Harold would mitigate the negative effects.
Dr. Singer felt that the stability provided by Danielle and Harold would be necessary for Edna as she progressed into adolescence and concluded that the termination of Sara's parental rights would be in Edna's best interests.
Danielle then testified that Edna had been living with her and her husband Harold and Edna's sister, Doris, for just over one year. Danielle and Harold discussed kinship legal guardianship (KLG) with the caseworker but they preferred to adopt Edna because "[a]doption is more . . . permanent" and provides "stability and consistency."
On June 6, the court sent a letter to the parties requesting a case management conference at Sara's convenience to address her failure to appear. The conference was never held as Sara's counsel was unable to contact her.
The trial continued on June 13, 2011, again without the appearance of defendant. Her counsel noted that her continued efforts to contact her client had been fruitless.
Dr. Richard Klein, who was retained to perform evaluations on Sara's behalf, testified that he did not have an opportunity to conduct a psychological examination of Sara prior to trial because Sara failed to show up for three scheduled appointments. For the same reason, he was unable to conduct a bonding evaluation between Sara and Edna. Klein did interview Edna who told him that her preference would be to live with her "real mom." From this, Dr. Klein concluded, "this case is a textbook case for kinship legal guardianship."
On June 28, 2011, the court delivered an oral decision finding that the Division had proven the first three prongs of the best interests test as to Sara. N.J.S.A. 30:4C-15.1. However, the judge found that DYFS did not meet its burden with respect to prong four because there were alternatives to termination, such as KLG. The court ordered the Division to file a new permanency plan with KLG as the goal.
The Division moved for reconsideration and on August 10 the court vacated the prior order, finding that it based its "decision on a palpably incorrect basis, and [failed] to appreciate the significance of certain evidence." The judge reasoned:
Now, under our statute for KLG, N.J.S.A. 3B:12A-6(d) it provides that in matters where the Division is - involved, the court must find - must - that adoption of the child is neither feasible nor likely in order to grant a KLG. Now, I haven't granted a KLG in this case, but I've certainly, as discussed below, factored into my analysis the probability or likelihood or alternative resolution of a KLG . . . .
In [Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 512-13 (2004)], the [C]court states that when the permanency provided by adoption is available, KLG cannot be used as a defense to termination of parental rights, under N.J.S.A. 30:4C-15.1(a)(3). Its very straightforward language, KLG cannot be used as a defense in those situations . . . .
The judge determined that under the balancing test of prong four, he put "undue weight on" the potential for KLG and gave too much weight to Dr. Klein's report, which bordered on a "net opinion."
A judgment of guardianship was entered terminating the rights of both parents. This appeal by Sara followed. The law guardian filed a cross-appeal but withdrew it on January 25, 2012, and now urges that we affirm the judgment of guardianship.
On appeal, defendant raises the following contentions for our consideration:
THE TRIAL COURT VIOLATED THE CONSTITUTIONAL RIGHTS OF DEFENDANT AND FEDERAL AND NEW JERSEY LAW BY NOT PERMITTING HER TO BE PRESENT FOR TRIAL IN HIS COURTROOM AS "CONTAGIOUS."
TERMINATION WAS NOT IN THE BEST INTERESTS OF THE CHILD, AND RECONSIDERATION WAS NOT WARRANTED BY ANY NEW EVIDENCE.
THE DEFENSE AND LAW GUARDIAN WERE DENIED REASONABLE OPPORTUNITIES TO GATHER EXPERT PROOFS.
Defendant claims the trial judge's decision to bar her from the courtroom for the case management conference violated her constitutional due process rights. We disagree.
Evaluation of whether due process requirements have been met requires, at minimum, the party be given fair notice and opportunity to be heard. In re C.A., 146 N.J. 71, 94 (1996). It is a flexible concept and calls for such procedural protections as the particular situation demands. Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 1812, 138 L. Ed. 2d 120, 127 (1997). An action for termination of parental rights is a civil action and the requirements of due process do not confer a constitutional right of confrontation or mandate a parent's presence at the trial. N.J. 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).
The trial court must employ "appropriate and adequate" procedures to the interest at stake. Id., at 467-68.
The protections needed to ensure due process where governmental action is to be taken depend on a careful balancing of three factors: (1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require. [Id. at 465 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976)) (additional citations omitted).]
Sara was represented by counsel throughout the trial. She was not barred from attending the trial but excluded from one pretrial conference while the judge sought to determine if her presence in the courtroom posed a danger to others. She was given the opportunity to present evidence that she was not contagious and the option to appear by phone. If she decided to re-enter the hospital to continue her treatment, the judge indicated he would grant an adjournment. Once she was informed of these options, defendant angrily left the courthouse and was unresponsive to all attempts by her attorney to contact her.
The trial court was concerned with the health and welfare of the "public and the people of the court."*fn5 The requirement that defendant provide some evidence that she was not contagious and did not pose a danger to others was not unreasonable. The record strongly supports the conclusion that defendant had notice of the trial date and made a conscious decision not to appear at trial, as her counsel suggested, because she was "upset" with the court's decision. Defendant's due process rights were not violated by the procedure employed by the court to determine her contagiousness.
Defendant next asserts the Division failed to meet its burden under N.J.S.A. 30:4C-15.1(a) and reconsideration was not warranted.
"Review of a trial court's termination of parental rights is limited. [We will] uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). However, the "interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).
To terminate a parent's rights under the best interests of the child standard, N.J.S.A. 30:4C-15.1(a), the Division must satisfy 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. 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).]
As defendant does not challenge the court's decision as to the first three prongs of the best interests test, we will limit our review to the findings on the fourth prong.
The fourth prong requires the Division to show "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). "The question to be addressed under this prong is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). Moreover, it is not in the child's best interest to place the current placement in limbo. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607-11 (1986).
The trial court originally found the Division failed to meet the clear and convincing standard because Edna's caretakers could provide permanency through KLG. On the Division's motion for reconsideration, the court found its prior decision was made on a palpably incorrect basis. The court recognized that it placed undue weight on the potential for KLG in balancing prong four.
Motions for reconsideration are governed by Rule 4:49-2. Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "Reconsideration should be utilized only for those cases . . . [that] fall into that narrow corridor in which either 1) the [c]court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]court either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.) certif. denied, 174 N.J. 544 (2002).
The trial judge's initial finding that KLG was a permanency option was improper in view of the willingness of the foster parents to adopt. "When the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights." P.P., supra, 180 N.J. at 513. Furthermore, "a kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'" Id. at 509 (quoting N.J.S.A. 30:4C-15.3).
Here, it is uncontroverted that Danielle and Harold are willing and able to adopt Edna. The court found Dr. Singer's testimony supported this in his conclusion that any adverse reaction to Edna's loss of Sara would be mitigated by the presence of Danielle and Harold.
The court also found that it placed undue weight on Dr. Klein's report. As part of his finding that termination would "do more harm than good," the judge considered Dr. Klein's testimony that Edna would have feelings of guilt because she was separated from her mother. On further review, the court found no basis to support Dr. Klein's determination.
Where a trial judge makes a decision and "later sees or hears something that convinces him that a prior ruling is not consonant with the interests of justice, he is not required to sit idly by and permit injustice to prevail." Lombardi v. Masso, 207 N.J. 517, 537 (2011). The judge is empowered to revisit the prior ruling and right the proverbial ship. Ibid. There is ample evidence in the record to find that the termination of Sara's rights would not do more harm than good.
Defendant's remaining arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following. Defendant's challenge that she was denied "reasonable opportunities to gather expert proofs", is specious.*fn6 Dr. Klein, who testified on defendant's behalf, was unable to conduct a psychological assessment of her as she failed to attend at least three scheduled appointments. Defendant's claim, raised for the first time on appeal, that "illness and hospitalization" prevented her from attending these appointments, finds no support in the record beyond Dr. Klein's speculation. Dr. Klein was also prepared on several occasions to conduct an evaluation of defendant's bond with Edna, but defendant failed to attend each of these appointments without presenting any valid excuse that appears on the record.
Defendant's claims, raised for the first time before us, that the trial court violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, and the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 are without merit.