NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,  Plaintiff-Respondent,
B.G. and V.M., Defendants-Appellants IN THE MATTER OF J.M.G., a minor NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent,
V.M. and B.G., Defendants-Appellants IN THE MATTER OF THE GUARDIANSHIP OF J.M.G., a minor
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Nos. FN-07-572-06 and FG-07-106-12.
Joseph E. Krakora, Public Defender, attorney for appellant B.G. in A-0355-11 and A-4001-11 (Laura M. Kalik, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant V.M. in A-0356-11 and A-3999-11 (Catherine Reid, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the briefs).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.G. in A-0355-11 and A-0356-11 (Jeffrey R. Jablonski, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.M.G. in A-3999-11 and A-4001-11 (Randi Mandelbaum and Sarah Koloski, Designated Counsel, on the brief).
Before Judges Messano, Lihotz and Ostrer.
On appeal after remand, defendants V.M. and B.G. challenge the judgment of guardianship that terminated their parental rights to their daughter J.M.G., born in 2006. They separately challenge orders entered by the trial court while the case was on the abuse and neglect docket. We consider the guardianship appeal together with the abuse-and-neglect appeal for the limited purpose of issuing a single opinion.
In July 2009, we affirmed the Family Part's finding that V.M. had abused or neglected newborn J.M.G., but reversed the same finding as to B.G. N.J. Div. of Youth & Family Servs. v. V.M. & B.G. (V.M. I), 408 N.J.Super. 222, 225 (App. Div.), certif. denied, 200 N.J. 505, 201 N.J. 272 (2009), cert. denied, U.S., 130 S.Ct. 3502, 177 L.Ed.2d 1095, U.S., 130 S.Ct. 3537, 177 L.Ed.2d 1095 (2010). In August 2010, we reversed a judgment terminating V.M.'s and B.G.'s parental rights, finding the Division had not proven the second and fourth prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. V.M. & B.G. (V.M. II), Nos. A-2649-08, A-3024-08, A-3336-08, A-3342-08 (App. Div. Aug. 6, 2010) (slip op. at 78, 90). We remanded the case to the Family Part for further proceedings. Id. at 94.
On remand, the Family Part dismissed the guardianship litigation and returned the matter to the abuse and neglect docket. Following a plenary hearing to address J.M.G.'s ability to participate in therapeutic visitation, Judge Stephen J. Bernstein directed V.M. and B.G. to engage in psychological therapy and directed the Division to intensify its efforts to prepare J.M.G. for visitation. However, visitation was stayed after only one session, due to the extreme anxiety and regressive behaviors that it engendered in the child. Thereafter, the court conducted an extensive permanency hearing, approved the Division's permanency plan of termination of parental rights, and the matter was once again placed on the guardianship docket. Following a guardianship trial, the judge entered judgment terminating V.M.'s and B.G.'s parental rights, finding the Division had established each prong of the best interests test by clear and convincing evidence.
In the guardianship appeal, defendants argue that the court erred by finding that the Division had met its burden of proof under the second and fourth prongs of the best interests test. They also argue that the court erred by refusing to reevaluate the evidence under the first and third prongs. V.M. contends that the court applied the wrong legal standards at the guardianship trial and failed to require the Division to prove its case by clear and convincing evidence. In the Title 9 appeal, B.G. contends the Division lacked the requisite care and custody of J.M.G. to support a guardianship action and in any event, the Division was collaterally estopped from filing a second guardianship complaint, and barred by principles of double jeopardy. Both defendants assert that they received ineffective assistance of counsel at trial.
After considering defendants' arguments in light of the record and applicable legal standards, we affirm.
We shall not recount the factual and procedural background of our July 2009 and August 2010 decisions, which can be found in V.M. I and V.M. II. We focus on the evidence presented at two plenary hearings, and the guardianship trial, and other proceedings not discussed in our two prior opinions.
Although we reversed the finding of abuse or neglect by B.G. in V.M. I, we did not order restoration of custody. 408 N.J.Super. at 252. As Judge Carchman observed in his concurring opinion:
Although the judge erred in entering a finding of abuse or neglect against B.G., he correctly denied B.G.'s request to assume custody immediately following the May 24 hearing. Dr. Jacoby's report questioned B.G.'s reliability and his fitness to assume parental responsibility. Frommer's observations in the hospital also gave rise to concern because B.G. denied that V.M. had ever received psychiatric care. Moreover, on the morning of the April 20 hearing, B.G. attempted to hide his identity and falsely said he did not know Frommer. His failure to attend the hearing left the judge little choice but to place the child in the custody of [the Division].
[V.M. I, supra, 408 N.J.Super. at 251.]
Judge Carchman noted that B.G. then failed to comply with the trial court's conditions for reunification. Id. at 252.
While the appeal was pending in V.M. II, B.G. sought an order for increased visitation or a limited remand to consider his application. We granted a limited remand. In response, the trial court suspended visitation — temporarily in September 2009 and permanently in December 2009, after conducting a plenary hearing. The court, by Judge John J. Callahan, received evidence that V.M. had engaged in bizarre behavior, including false allegations to the police about the foster parents; B.G. acted inappropriately during visitation; and J.M.G. experienced anxiety and other negative reactions to the visits. In February 2010, we then denied B.G.'s motion to vacate Judge Callahan's order; and the Supreme Court denied leave to appeal.
In V.M. II, we denied B.G.'s request to order the remand be heard by a different judge, stating that defendants should first present a motion for recusal to that judge. On remand, the recusal motion was filed and granted, and the matter was transferred to Judge Bernstein. He dismissed the guardianship case and returned the matter to the FN docket. B.G. filed motions for return of the child pursuant to N.J.S.A. 9:6-8.32, and, alternatively, for visitation.
In a September 22, 2010 order, the court denied the motion to restore custody, but granted the motion for visitation; directed the Division to set up therapeutic supervised visitation within two weeks; and denied the Law Guardian's and the Division's motion to stay therapeutic visitation. J.M.G. at that point was four-and-a-half years old. She had not visited with her parents in a year; had never lived with her parents; and had lived with the same foster parents since she was one year old. The court appointed Dr. Elizabeth Smith to conduct therapeutic visitation, and the Division retained Dr. Elizabeth Groisser to provide J.M.G. play therapy.
The Law Guardian obtained a stay of visitation from this court, pending reports from the experts regarding the impact of renewed visitation. The Supreme Court granted leave to appeal, but denied motions to vacate the stay of visitation by order entered December 10, 2010. The Court stayed visitation pending further order of the Family Part. The Court summarily remanded the case to the Family Part, and required defendants to submit renewed visitation motions following new reports, which the trial court was ordered to consider on an expedited basis.
In December 2010, following the Supreme Court's order, Judge Bernstein decided to hold a plenary hearing to address J.M.G.'s ability to participate in therapeutic visitation. B.G. had filed a motion for return of the child, and a motion for expedited therapeutic visitation. V.M. apparently joined in the motion for return.
During oral argument, B.G. was represented by two attorneys. One asserted B.G. was entitled to return of the child, as there was no finding of abuse or neglect against him and termination of his parental rights was reversed. Co-counsel, however, agreed that "the Court is properly focused on . . . moving forward with therapeutic visitation." He stated, "I'm not arguing a motion for return, " and the Division "is probably on reasonably solid ground in not returning the child[.]" The Division argued the Supreme Court's order affirmed the Division's refusal to return custody to B.G. The Division also argued, "The remand never said dismiss the guardianship complaint."
Judge Bernstein declined to grant the motion for the immediate return of the child. He reserved decision until the conclusion of a hearing on resuming visitation. The court also denied the Division's proposed permanency plan of termination of parental rights followed by foster home adoption. Instead, Judge Bernstein ordered continued therapy for and evaluations of J.M.G. in anticipation of possible reunification.
The Visitation Hearing
At a four-day plenary hearing in January and February 2011, Judge Bernstein heard from seven mental health professionals. Smith testified, based on her observations and meetings, that J.M.G. was a happy, well-adjusted child with a strong connection to her foster parents; defendants were convinced, however, she was unhappy and resisted the suggestion that J.M.G. might find it difficult to resume visitation. The foster parents reported that J.M.G. experienced anxiety, aggression, toileting problems, and sleep disturbances following meetings at which Smith discussed resumption of visitation with her parents.
Groisser conducted twelve play therapy sessions with J.M.G., who Groisser found to be an engaging, sweet, and strong-minded child. J.M.G. told Groisser, "I don't want to see them because I want to stay with my, the mommy and daddy I live with now." Groisser explained J.M.G. was fragile, and experienced confusing feelings about stability, identity, self-esteem and safety. The child had difficulty sleeping and had bad dreams. Groisser believed J.M.G. was not prepared to resume visitation, as she expressed fear and anxiety that she would be taken away from her foster home.
Dr. Rachel Jewelewicz-Nelson testified on behalf of the Law Guardian. After meeting with defendants, the foster parents, and J.M.G., Jewelewicz-Nelson opined it would be contrary to J.M.G.'s best interests to have contact with defendants. She stated J.M.G. was at risk of developing multiple psychological and psychiatric problems. She also opined V.M. and B.G. did not recognize J.M.G.'s anxiety. B.G. ascribed false motives to the Division, and asserted V.M. did not suffer from mental health problems that would interfere with her parenting. V.M. believed J.M.G. was doing poorly and pining for defendants. Jewelewicz-Nelson diagnosed both as suffering from personality disorders — B.G. not as impaired as V.M. — and doubted psychotherapy would lead to positive results, going so far as to say the situation was hopeless.
Dr. Anthony D'Urso, who testified on behalf of the Division, evaluated defendants and diagnosed V.M. with post-traumatic stress disorder (PTSD) by history and with "dependent and schizotypal features." D'Urso concluded B.G.'s denial of V.M.'s psychiatric symptoms warranted removal. He found that B.G. had no thought disorder, confusion, or traumatic response, but that he did display symptoms of intolerance, aggression, conduct humiliating to others, and concern over his own self-worth. He diagnosed B.G. with schizotypal personality disorder NOS and dependent personality disorder NOS. He believed that B.G. was not yet ready for visitation because he was clearly aligned with V.M. and might not step in if he saw something occurring that was emotionally harmful to J.M.G. Like V.M., B.G. would benefit from treatment to address these problems. If the parents were in treatment and J.M.G. were ready for visitation, D'Urso saw no problem with it going forward.
Defendants called three experts: Dr. Arnaldo Apolito, a psychiatrist; and Dr. Obenetta Tamagnini and Dr. Melissa Rivera-Morano, psychologists. Apolito found that V.M. exhibited no sign of psychosis or other thought disorder. He diagnosed her as having residual PTSD and possibly histrionic personality disorder, neither of which would prohibit her from visiting with J.M.G. Apolito found that B.G. had no mental illness and there was no indication he would be harmful to J.M.G. He advocated J.M.G.'s visitation with B.G. as soon as possible. Apolito opined that children J.M.G.'s age are resilient. He believed J.M.G. should be told that V.M. and B.G. are her biological parents and then be given substantial counseling.
Tamagnini interviewed J.M.G., who appeared pleasant, talkative, and bright. When asked to draw a picture of her "real" parents, J.M.G. drew her foster parents with her. She displayed no anxiety when doing this, nor at any other time during the interview. She told Tamagnini that she did not want to see her other parents. Tamagnini was unable to say whether J.M.G. was a fragile child, and offered no opinion as to how to re-acquaint J.M.G. with her birth parents.
Rivera-Morano evaluated V.M. and B.G. based on testing and clinical interviews, though she suggested both were faking some responses. Rivera-Morano did not find V.M. to be psychotic or delusional, and diagnosed V.M. with PTSD and a paranoid personality feature with the presence of pathological suspicion. Both of these disorders could be addressed by appropriate treatment. Rivera-Morano testified that B.G. did not meet the criteria for any psychiatric or psychological disorder, outside of an adjustment disorder resulting from J.M.G.'s removal. He displayed appropriate parenting knowledge and expressed a willingness to address J.M.G.'s needs. Rivera-Morano did not believe that V.M. posed a risk of harm to J.M.G. within the context of a therapeutic visit, which should occur twice a week. With progress, she contemplated overnight visits outside a therapeutic setting.
Judge Bernstein acknowledged that defendants' parental rights included the right of visitation, which should be revoked where it clearly and convincingly appeared it would cause physical or emotional trauma to the child. After evaluating each expert's testimony, and the variation in their opinions, he concluded there was a consensus that defendants had various deficiencies. He concluded therapy should occur before commencing therapeutic visitation to assure successful visits. He directed defendants to engage in psychological therapy and to cooperate with Smith in preparing for visitation. If progress were not made, the defendants would have the opportunity to apply to the court for the assignment of new therapists. The judge directed that Groisser continue play therapy, and Smith continue her therapy, with the goal of commencing visitation in the near future.
On March 23, 2011, after reviewing reports from Smith and Groisser, the court concluded therapeutic visitation should begin and ordered the Division to schedule it. Eight days later, J.M.G. visited with defendants, supervised by Smith.
At a compliance hearing on May 19, 2011, the court considered reports from Smith and Groisser, who (1) reported that J.M.G. suffered an extremely negative reaction to the visitation, and (2) strongly recommended against further visitation. Judge Bernstein decided not to order additional visitation; he ordered continued therapy with Groisser to prepare J.M.G. for possible renewed visitation; and ordered a permanency hearing on whether the Division had exhausted efforts to reinstate visitation.
After addressing preliminary and evidentiary issues on July 15, 2011, Judge Bernstein conducted a permanency hearing over four days in July and August. Witnesses testified about the preparations for visitation on March 31, and its aftermath.
Groisser testified that she believed J.M.G. was ready to participate in therapeutic visitation on March 31, 2011. At a meeting before the visitation, J.M.G. told Groisser she acknowledged she was going to see "mommy" and "Daddy B." and said she was "brave" to do so. Groisser was told the visit went well, but it had a significant psychological impact. The foster parents told Groisser that after the visit, the child hid, cried, was inconsolable, and had temper tantrums. Further, J.M.G. exhibited severely regressed behaviors and encopresis, which was documented by J.M.G.'s school records. Based on this information, Groisser recommended that visitation be stopped. However, Groisser continued to work with J.M.G. on visitation preparation.
After June 9, J.M.G.'s anxiety heightened. She had an increase in nightmares and her eating became more problematic. She experienced separation anxiety and became upset and clingy when either foster parent left for work. She screamed in the middle of the night, "Help me" and "Don't let them take me." Groisser believed the foster mother was supportive of visitation, and was not adversely influencing J.M.G. Groisser believed that another therapeutic visit would be detrimental to J.M.G. and cause her enduring harm. The child was starting to distrust her foster parents and to think they did not want her. She frequently asked them "We're a family — we're a family, Right? You me, mommy, daddy, we're a family, right?"
Smith testified that she thought J.M.G.'s anxiety might dissipate after the March 31 visit. She believed it was important to try visitation, although V.M. and B.G. were still having difficulty understanding J.M.G.'s attachment to her foster parents. Although J.M.G. was upset and distressed when Smith saw her on March 30, 2011, Smith decided to proceed with the visit. The next day, J.M.G. did not resist the visit, which went well. J.M.G. smiled and played; and V.M. and B.G. acted appropriately. Smith stated that V.M. and B.G. followed the guidelines she had established. J.M.G. interacted particularly well with B.G., who was warm and related to her in a comfortable manner. However, when the visitation time ended, J.M.G. simply took a doll that her birth parents had brought her and walked out abruptly, without saying goodbye.
Smith explained that typically in supervised visitation, if there is a problem it does not appear until the child gets home. For that reason, she wanted to wait two weeks to see how J.M.G. behaved before scheduling another visit. As time went on, Smith learned that J.M.G. was not sleeping, had nightmares, had bowel accidents, and exhibited high separation anxiety from her foster parents. Describing these reactions as "extreme, " Smith decided to suspend future visitations to give J.M.G. a chance to recover.
In June, Groisser told Smith that J.M.G. had been talking about a doll house defendants gave her. Smith thought this was a good sign that they could introduce the subject of her birth parents again. To that end, Smith suggested that V.M. and B.G. write a card to J.M.G. with a nice message and photograph inside. Smith scheduled a session with J.M.G. for July 8, 2011. J.M.G. was carried into the session in her foster mother's arms; J.M.G. sucked her thumb, acted like a much younger child, and would not talk. Despite efforts by Smith and the foster mother, J.M.G. refused to look at the card and would not speak.
Noting J.M.G.'s regression, Smith worried that she might have pushed the child too hard. She noted that during the previous fall, J.M.G. appeared as a typical, outgoing, well cared-for little girl who talked about her dogs and her school. When Smith testified, J.M.G. had developed an adjustment disorder, a behavior disorder and anxiety. Smith asserted that J.M.G. perceived V.M. and B.G. threatened J.M.G.'s relationship with her foster parents. Smith was emphatic that the foster mother was supportive of visitation and found no evidence that J.M.G. was "programmed" to oppose visitation. Smith believed the visitation process was harming J.M.G., and should cease. She did not base her recommendation on anything B.G. or V.M. had done, but on the impact of the visits on J.M.G.
Patrice Amatrudi, a Division case worker involved with the case since April 2007, testified that J.M.G. sees an eye doctor and wears eyeglasses for corrective vision. J.M.G. was being treated for eating and swallowing issues, which worsened when the court considered visitation after the remand. Amatrudi testified that since December 2010, the Division provided J.M.G. with individual therapy, family visitation therapy, a daycare subsidy, classes and activities, and payments for foster care. Amatrudi stated the Division's provision of a Ph.D-level therapist for a child J.M.G.'s age was unusual, but reflective of the Division's efforts.
In response to the court's order of February 2011, Amatrudi retained Eileen A. Kohutis, Ph.D, with experience in PTSD, to treat V.M. She also retained Daniel Bromberg, Ph.D, to treat B.G. In May, defendants advised the court that they wanted the Division to obtain new therapists. Accordingly, Amatrudi contracted with Dr. Radha Bhatia to treat V.M. and Dr. Brett A. Biller to treat B.G., but defendants did not commence therapy with them.
Defendants refused to permit Amatrudi to meet with them at their home. Amatrudi also expressed concern about B.G.'s refusal to provide the Division with information about his businesses and financial records, particularly because B.G.'s proposed reunification plan entailed hiring a nanny to assist V.M.
Amatrudi stated that the foster parents were committed to adopting J.M.G. and that they currently met all of the child's needs. She believed that it would be appropriate to proceed to termination of parental rights because J.M.G. was now five years old, had been in placement her entire life, and needed permanency.
Marc Cantillon testified as a psychiatric expert on behalf of defendants. He stated that he had been seeing V.M. for almost five years. Her treatment involved a combination of psychotherapy and medication, and she was very stable. A mental status examination conducted on July 5, 2011, revealed that V.M. was experiencing sadness and anxiety, but was still functioning well. She demonstrated no disordered thinking, no hallucinations, and no psychosis. V.M.'s diagnosis remained PTSD.
Cantillon stated that V.M.'s PTSD did not impact her functioning and would not impair her ability to parent a child. V.M. had the necessary skills and empathy to understand the emotional and physical needs of a five-year-old. She was appropriate and realistic, and her self-image was improving. Although V.M. used inappropriate terms for the foster parents in the past, she recognized that they had a bond with J.M.G.
Cantillon believed that V.M.'s prognosis was good. She was currently taking Depakote, a mood stabilizer, for treatment of anxiety and agitation, and Seroquel, an anti-psychotic and tranquilizer, for treatment of anxiety. In the past, she had also taken Haldol, Geodon, and Zyprexa. The medications enhanced V.M.'s general functioning ability. Cantillon testified that B.G. had no psychiatric conditions and no diagnosis, and was able to parent a five-year-old.
On cross-examination, Cantillon was asked to address numerous inconsistencies in the documents that he produced for the court, and his responses to questions were confusing and evasive. Cantillon stated that he saw V.M. on a monthly basis since 2006. He then qualified his statement as meaning that he had some contact with her every month. Even though the records showed five-month gaps in treatment, he believed that he spoke to her on the telephone during those periods. He later admitted that he did not see V.M. from September 2009 to February 2010, because she "was feeling very bad." During that time, V.M. was depressed and relatively unstable; she made telephone calls representing herself as a CIA agent and made false reports to the police.
Cantillon agreed that V.M. required on-going psychiatric care. She experienced periods of worsened anxiety symptoms, and at times she could be described as suffering from a major depressive disorder. She also had mood swings that could be described as bipolar or manic depression.
Cantillon was unclear as to when and if he provided B.G. with treatment. He stated that he wrote B.G. a prescription for Sonata for sleeplessness, but that he did not consider that treatment. In April 2007, he wrote B.G. prescriptions for Seroquel and Mirtazapine, a mood stabilizer. Cantillon explained that these were V.M.'s prescriptions but he apparently wrote them in B.G.'s name so that B.G.'s insurance would pay for them. He later changed that testimony to say that he did write the prescriptions for B.G., but they were only intended as sleep medications. He also identified a prescription for Ambien that he wrote for B.G., which included a diagnosis code for a major depressive disorder.
Judge Bernstein determined that the Division's permanency plan of termination of parental rights followed by adoption was appropriate and reasonable under the circumstances. Although defendants had cooperated and behaved appropriately at the March therapeutic visitation, the aftermath for the child was dramatically negative. The judge found that Smith and Groisser "did a yeoman['s] job" in working with J.M.G. and preparing her for visitation. He noted that they had shared his thought that perhaps J.M.G. was more fearful of what visitation might be like than the actual visitation itself and that she might calm down after a successful visit. Unfortunately, the opposite occurred. J.M.G. developed regressive behaviors that Smith and Groisser specifically related to the visitation. They saw "what appeared to be an extremely stable outgoing child change to be a much more fragile situation."
The judge commended defendants for making progress in learning about child development and bonding. He nevertheless found that the type of therapy they had been receiving was inadequate to address the problems that they faced. He also noted that they were unwilling to engage in therapy with the therapists provided by the Division. Judge Bernstein was especially critical of Cantillon's testimony, observing that there were serious questions regarding his ability to keep records, his reports were not credible and his treatment was haphazard.
Judge Bernstein stated that he had been presented with detailed information from two competent doctors — Smith and Groisser — who said that visitation could not proceed then or in the near future. Meanwhile, J.M.G. was getting older.
[W]e have to step back and . . . try to look at this through the eyes of a 5 year old. You have a 5 year old who is . . . in a foster home. Has been in that foster home for . . . about 4 and a half years now. Knows her foster parents to be her only parents. And despite 4 and a half years with them those foster parents can not honestly tell her that, yes, we are a family and you will be able to stay with us. And . . . no matter how many times [J.M.G.] may ask, no matter how much she wants to know that she's part of this family, they can never honestly tell her that, yes, you are part of the family. You will always live with us. You . . . have a stable home here, this is your home.
The child is now over 5. The reason we have permanency guidelines, . . . that we don't keep kids in foster homes in limbo for long periods of time is because we develop this situation. This child is saying, . . . where am I? Where am I going to be?
Judge Bernstein stated, "The longer we wait the worse it gets." He found that the insecurity surrounding J.M.G.'s permanency was not fair to her and amounted to "punishment to a child that didn't create this situation." The judge found that J.M.G. had significantly regressed since efforts began to commence therapeutic visitation.
He concluded that the Division's proposed plan of guardianship and termination of parental rights was appropriate and reasonable, and "the only viable plan . . . at this point." Proceeding further with the Title 9 litigation would not be helpful to J.M.G., "or would merely create more harm [.]"
The judge entered a permanency order on August 11, 2011, finding that termination of parental rights followed by foster home adoption was "appropriate and acceptable." He found it was not, and would not, be safe to return J.M.G. to her parents' home in the foreseeable future because:
Mother continues to experience mental health issues that pose a significant risk to the child. Father does not fully understand the mental health issues of the mother and continues to present a reunification plan as a couple. Neither parent is engaged in appropriate therapy. Court found that the child has significantly regressed since the process of starting therapeutic visitation commenced.
He found the Division made reasonable efforts "to finalize the permanent plan, including reunification where appropriate[.]" These consisted of "multiple referrals for individual therapy, psychological and psychiatric evaluations, referral for therapeutic visitation, and play therapy for the child[.]" The order provided that J.M.G. would be continued in placement outside the home. It noted that the Division filed its guardianship complaint that day. By a separate order the same day, the court dismissed the Title 9 litigation, as the complaint for termination of parental rights had been filed.
B.G.'s and V.M.'s appeal from the August 11, 2011 orders followed. We later denied the Division's motion to dismiss the Title 9 appeals.
In the meantime, the court proceeded with the guardianship case. Before trial, defendants sought restoration of visitation and a bonding evaluation. They relied on the opinion of Dr. Susan Esquilin, who asserted that visitation was terminated prematurely. In November 2011, the court denied immediate relief and ordered a status report from Groisser regarding J.M.G.'s therapy. Groisser responded in a December 2, 2011 report that reinstating visitation would be extremely detrimental to J.M.G. In response, counsel for both defendants stated that there would be no further applications on the issue of visitation and bonding evaluations.
The parties agreed that the upcoming guardianship trial record would include the record of the 2009 hearing that led to suspension of visitation, and the prior hearings before Judge Bernstein. The deputy attorney general explained it would "avoid everybody having to re-present" evidence from those hearings. Counsel initially also stipulated that the Division had established prong three of the best interests test by clear and convincing evidence as of December 2008, but then, in defendants' presence, stipulated that prong three was met through the date of trial. Judge Bernstein also determined, based on the law of the case doctrine, that prong one had been met, and the trial would proceed on prongs two and four.
The Guardianship Trial
Trial was held over five days in February and March 2012. The Division introduced voluminous documentary evidence of V.M.'s psychiatric treatment history, including records of multiple hospitalizations. V.M. entered Overlook Hospital in 2007 for depression. Two years later, she was admitted again after she exhibited grossly delusional thoughts, including claims she was the biological child of John F. Kennedy, and her neighbors were killing their children. B.G. told hospital staff that he "had no idea there was a problem going on with the wife." V.M. was diagnosed as suffering from schizoaffective disorder.
Police escorted V.M. in handcuffs to Overlook on October 8, 2009. V.M. had called police headquarters claiming she was from the CIA, her mother was Marilyn Monroe, V.M. was an assassin, and she was going to kill someone. She was extremely agitated and threatening. V.M. was diagnosed as suffering from schizoaffective disorder and delusional disorder. She was involuntarily committed to East Mountain Hospital, where she remained for almost two weeks. After she was stabilized on multiple psychotropic medicines, she was discharged with a diagnosis of schizoaffective disorder, probable PTSD, and probable fixed delusional system.
According to records of services that V.M. and B.G. received in 2007, V.M. repeatedly made bizarre, delusional statements. She claimed she had relationships with famous people; and her Division case worker had called her ten years earlier and vowed to take away any child in her custody.
A May 2011 therapy progress report by Bromberg stated that B.G. lacked an understanding of psychological attachment and the feelings J.M.G. was likely experiencing. Bromberg opined that B.G. would offer J.M.G. an environment substantially less safe and stable than her foster home as described by the Division.
Biller wrote a summary in January 2012, after twelve therapy appointments with B.G. He opined that B.G.'s reluctance to acknowledge concerns raised by the Division was caused by narcissistic features in B.G.'s personality. Although Biller said therapy had some success, he cautioned, "While [B.G.] is demonstrating therapeutic progress it is uncertain if he has internalized an understanding of the significance of his wife's emotional functioning, the negative impact her emotional functioning can have on her parenting capacity, or the emotional experience of his daughter and her attachment experience."
In a May 2011 letter, Kohutis addressed the status of V.M.'s treatment after nine therapy sessions. Kohutis stated V.M. was prone to exaggeration and disorganized thinking; she often seemed cut off from her own feelings; and was unable to realistically anticipate the future. Kohutis concluded:
Taken together, [V.M.'s] inability to relate to her child and to understand her child's needs and experiences, her inability to be emotionally supportive and empathic with her daughter, her heightened sense of self-importance, her grandiosity, and illogical thinking underscore the importance of her psychotherapy. Her therapy will not be short-term for these issues are long standing and will take many years to resolve.
Dr. Heidi Jacobsen wrote a January 2012 therapy update about V.M., who attended weekly therapy sessions since September 2011. Jacobsen observed that V.M. had only a minimal understanding of the concerns that led to J.M.G.'s removal and consistently denied engaging in well-documented negative behaviors. V.M.'s lack of recognition of her past behavior raised concerns about her judgment and ability to demonstrate appropriate decision-making in the future. Although V.M. had begun to identify how she would assist J.M.G. with her anxiety, V.M. lacked empathy for J.M.G.'s situation and could not determine how she would handle J.M.G.'s sense of loss if J.M.G. were removed from her foster parents.
Division records also documented that J.M.G. had negative reactions to visitation in 2009, including resisting visitation before it occurred, difficulty sleeping, and thumb sucking afterward.
At trial, the Division called Dr. Frank J. Dyer, a psychologist; Dr. Robert Latimer, a psychiatrist; as well as Groisser, J.M.G.'s play therapist, and Amatrudi, the Division's caseworker. The Law Guardian called Jewelewicz-Nelson. V.M. called Dr. Andrew Brown, a psychologist; and B.G. called Dr. Antonio Burr, a psychologist. Defendants also called Cantillon. B.G. also testified.
Dyer evaluated V.M. in October 2011. His diagnosis then was depressive disorder NOS. After he reviewed V.M.'s hospitalization records, he revised his diagnosis to schizoaffective disorder. Dyer explained that schizoaffective disorder is a combination of psychosis, schizophrenia and mood disorder. He opined V.M. did not suffer from PTSD, which is generally not associated with delusions.
V.M. denied engaging in well-documented incidents of making false alarms, and threats. Dyer stated, "[T]his pattern of denial, evasiveness and distortion that [V.M.] has presented over the years . . . makes her impossible to work with in terms of doing any kind of effective supervision or monitoring of her." He noted that V.M. cannot tolerate being labeled as disturbed.
Dyer opined that V.M.'s prognosis for improvement was poor given defensiveness, denial and her skill at presenting herself as functioning normally. He believed that her erratic and dangerous behavior would pose a risk of harm to J.M.G., both physically and psychologically.
Dyer believed that V.M. had no realistic understanding of J.M.G.'s circumstances. She believed J.M.G. was suffering because she was separated from V.M. If J.M.G. were returned to her, she would dismiss J.M.G.'s yearnings for her foster parents and speak of them negatively. Moreover, if J.M.G. expressed anything other than joy at being home, V.M.'s psychological stability would be threatened. Although Dyer did not believe that V.M. would physically abuse J.M.G., he worried that V.M. would exacerbate J.M.G.'s distress rather than alleviate it. Further, he worried that V.M.'s frequent involvement with the police and her violent outbursts could expose the child to physical harm.
As for B.G., Dyer found he had a personality disorder NOS, with schizotypal and dependant features. B.G. did not have a clear understanding of V.M.'s mental illness, attributing her problems to the stress of this case and her workplace accident in 1993. His denial of facts concerning V.M.'s illness, his failure to report her hospitalizations to the Division, and his unwavering support for her version of reality arose from his dependence on her and ...