DIVISION OF YOUTH AND FAMILY SERVICES v. M.N.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0875-05T40875-05T4

DIVISION OF YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.N.H.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF E.N. and K.N., Minors.

________________________________________________________________

 

Submitted April 3, 2006 - Decided May 19, 2006

Before Judges Parrillo and Holston, Jr.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-18-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Andrea M. Barilli, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor children, E.N. and K.N. (Cynthia McCullough Dileo, on the brief).

PER CURIAM

Defendant, M.N.H., appeals from the Family Part's September 9, 2005 order terminating M.N.H.'s parental rights to her daughter, K.N., age eight, and her son, E.N., age seven, and granting guardianship to the New Jersey Division of Youth and Family Services (DYFS). In a thoughtful and well-reasoned oral opinion consisting of eighty-two transcribed pages, Judge John J. Callahan found, after a three-day trial on August 29, 30 and September 9, 2005, that DYFS had proved by clear and convincing evidence the four elements of the "best interests of the child" test contained in N.J.S.A. 30:4C-15.1a. We affirm.

DYFS received a total of nine referrals from May 1999 until July 22, 2003, expressing concerns for K.H. and E.N. while in the care of M.N.H. The specific allegations, which were substantiated, included physical abuse and the medical neglect of E.N. (a special needs child) including: failure to provide E.N. with necessary medication and blood tests relative to his epilepsy, failure to toilet train E.N., unsanitary housing, neglect of both children's hygiene (they appeared in soiled clothes, unwashed, and with body odor), severe diaper rashes on E.N., failure to meet the children at their school bus, and leaving the children home alone. As a result, on July 23, 2003, K.N. and E.N. were removed from defendant's custody and placed in foster care. On December 10, 2004, DYFS filed a verified complaint and order to show cause and was granted custody, care and supervision of the children. E.N. was classified medically fragile and was first placed at St. Joseph's Children's Hospital in Paterson.

DYFS initially planned for reunification and arranged for psychological and psychiatric evaluations for M.N.H., individual counseling and visitation. M.N.H.'s failure to make progress, however, resulted in the goal being changed from reunification to termination of parental rights.

K.N. and E.N. have each been in a total of six placements. E.N. is presently in a special needs foster home and his foster parents wish to adopt him. At the time of trial, K.N. had been in her present foster home since June 9, 2005.

M.N.H. suffers from panic attacks emanating from having been raped as a child by her own step-father. Her recurrent flashbacks cause her depression, feelings of low self-esteem and poor coping mechanisms. On May 8, 2004, M.N.H. married K.H., who is mentally retarded and physically impaired by his own epileptic condition. K.H. also has poor problem solving skills and anger management difficulties. M.N.H. and K.H. also have poor hygiene, evidenced by their chronic body odor and stained clothing.

From June 2004 through August 2005, the Center for Evaluation and Counseling (CEC) has provided individual counseling for M.N.H., K.H. and K.N., and weekly therapeutic visitation between M.N.H., K.H. and both children. M.N.H. has also received services for her post-traumatic stress disorder at the Sexual Trauma Resource Center (STRC), and M.N.H. and K.H. have undergone psychiatric, psychological and bonding evaluations.

Melissa Ciottone, a licensed therapist from CEC, evaluated M.N.H. in June 2004 and reported M.N.H.'s continued problems with personal hygiene and post-traumatic stress disorder. As a result of M.N.H.'s impaired mental state and poor parenting judgment, Ciottone opined that M.N.H. presented as a high-risk parent in need of parenting skills, therapy and psychiatric care. On June 23, 2005, M.N.H. and K.H. signed a form consenting to therapy, by which they agreed to participate in the therapy services offered by CEC, acknowledged that the services were court-ordered, and consented to the fact that the material obtained was not privileged and might be presented to the court. On August 17, 2005, after fifty individual therapy sessions, CEC issued a progress report to DYFS reporting that M.N.H.:

is not capable of functioning on a consistent level. Due to her emotional difficulties [M.N.H.] continues to suffer from panic attacks . . . it is doubtful that she can sustain appropriate parenting as her level of functioning is inconsistent and her coping skills are limited. [M.N.H.] has difficulty facing the stresses of daily living without becoming helpless, childlike and insecure. Like K.H., she has difficulty taking care of herself.

Dr. Frank J. Dyer conducted psychological and bonding evaluations on July 1, 2005. Based on psychological testing and a clinical interview, Dr. Dyer diagnosed M.N.H. with chronic post-traumatic stress disorder and personality disorder NOS with prominent schizotypal and borderline features. Dr. Dyer opined, "[t]he results of self-report personality testing, in conjunction with behavior observation and case history data, indicate that [M.N.H.] is very clearly announcing that she is too impaired psychologically to care for children." Dr. Dyer concluded that M.N.H. should not be a "viable candidate for custody" because she suffers "from impairments in her basic ego functioning, particularly in the areas of impulse control, frustration tolerance, judgment, rational thinking, relationship to reality, and the anticipation of the consequences of actions." Further, her "prognosis for maintaining adequate psychological stability and avoiding a major psychiatric or behavioral crisis, even without the added responsibility of caring for two special needs children, is regarded only as fair."

On the issue of bonding with regard to E.N., Dr. Dyer stated that due to his special needs, "no clear preference could be elicited" and that he has "limitations in his capacity to attach." With regard to K.N., Dr. Dyer observed that K.N. did not display affection to either her mother or step-father and that the child expressed "reservations about going to live back with her mother because she fears that her mother may abuse her physically again."

Dr. Dyer testified also on the potential of M.N.H. parenting along with K.H. Dr. Dyer indicated that the addition of children into their marriage could present "additional stressors" because E.N. is a special needs child and along with K.N., they both have a long history of separations and behavioral problems. Dr. Dyer commented that both M.N.H. and K.H. have a history of physical violence wherein K.H. assaulted his sister and M.N.H. abused K.N. Ultimately, Dr. Dyer concluded that even if K.H. were not part of the plan, M.N.H. would not "be qualified to serve as a single parent for these children."

Judge Callahan found that E.N. and K.N. suffered harm as a result of the parental incapacity of M.N.H. The judge indicated that "[t]here doesn't have to be actual physical harm, but rather a severe and substantial risk of harm due to a parent's inability to protect the child on a daily basis, and that's all that is necessary." Judge Callahan pointed to several instances of neglect including the fact that M.N.H. failed on several occasions to be home on time to meet the children's school bus, and the "glaring failure" to maintain E.N.'s regular appointments with Dr. Chung, E.N.'s neurologist, for his seizures. Further, Judge Callahan pointed to M.N.H.'s own failure to help herself and reach out for mental health maintenance.

As to the second prong of the "best interests of the child" test, the judge found that M.N.H. was unable to eliminate the harm facing E.N. and K.N. The judge noted that M.N.H. has recurring panic attacks that render her helpless. Further, the judge noted that based on the testimony of Melissa Ciottone and Dr. Dyer, M.N.H.'s ability to further rehabilitate herself is marginal. The judge commented on the many instances of poor hygiene discussed in the case record that continued throughout the pendency of the litigation, and suggested that if the children were to be returned home they could face social alienation by their peers if such hygiene issues were to continue. The judge found that "[M.N.H.] is not up to the parenting ability now and will not be in the immediate future."

The judge also found that DYFS had made "reasonable efforts" to keep M.N.H.'s family intact and upon the children's removal, to reunify the family, so as to satisfy the third prong of the "best interests of the child" test. The efforts included the investigation of relatives as possible placement resources for E.N. and K.N. through an "Interstate Evaluation" in the State of Tennessee. Further, DYFS provided regular visitation to M.N.H., which also included therapeutic visitation. In addition, M.N.H. attended Domestic Abuse Services, Inc. (DAS) therapy at CEC, and participated in Project Self Sufficiency (PSS) and Family Preservation Services (FPS). DYFS also offered psychological evaluations and a psychiatric evaluation to M.N.H. and psychological evaluations to K.H.

With respect to the fourth prong of the "best interests of the child" test, "termination of parental rights will not do more harm than good," the judge relied on the opinion of K.N.'s treating therapist from CEC, Heather Diamond, and found that K.N. has a "need for permanence and has so expressed so herself." The judge further found that K.N. will be "emotionally damaged" if there is a delay in permanency. With respect to E.N., the judge relied on the fact that he is in a home that is "fully aware of the limitations that [E.N.] suffers," and that is committed to adopting him.

M.N.H. presents the following arguments for our consideration:

POINT I

THE DEFENDANT'S RIGHT TO A FAIR GUARDIANSHIP TRIAL WAS PREJUDICED BY THE WRONGFUL ADMISSION OF STATEMENTS MADE BY DEFENDANT TO THERAPIST CIOTTONE DURING THERAPY SESSIONS.

A. THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT'S STATEMENTS MADE TO THERAPIST CIOTTONE WERE ADMISSIBLE BECAUSE OF THE DEFENDANT'S CONSENT.

B. ADMISSION OF THE DEFENDANT'S STATEMENTS MADE TO THERAPIST CIOTTONE VIOLATED THE PATIENT-PSYCHOLOGIST PRIVILEGE UNDER N.J.R.E. 505.

POINT II

THE ORDER OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE SECOND, THIRD, AND FOURTH PRONGS OF THE BEST INTERESTS TEST.

A. THE TRIAL COURT'S FINDINGS THAT THE DEFENDANT WAS UNABLE TO ELIMINATE THE HARM TO K.N. AND E.N. CANNOT BE SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD.

(1) THE DEFENDANT WAS ABLE TO BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF HER CHILDREN.

(2) THE TRIAL COURT MISAPPLIED THE "PARENTAL UNIT" THEORY.

B. THE DIVISION FAILED TO MAKE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO THE DEFENDANT BECAUSE IT REFERRED THE DEFENDANT FOR PSYCHOLOGICAL THERAPY AS AN "INVERSE" SERVICE TO ESTABLISH CORROBORATIVE EVIDENCE TO SUPPORT ITS COMPLAINT FOR GUARDIANSHIP.

C. THE TRIAL COURT APPLIED AN IMPROPER "COMPOSITE OF THE EVIDENCE" STANDARD IN FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

M.N.H. argues that she was not aware that she had the right to refuse "consent" to waive the confidentiality of her therapeutic records. M.N.H. asserts that DYFS failed to meet its burden of proof to show that M.N.H.'s waiver of the psychologist-patient privilege was knowing and voluntary.

However, our review of the record clearly supports Judge Callahan's finding that M.N.H's consent was knowing and voluntary. DYFS presented repeated documentation of her knowing and voluntary decision to waive her right to keep confidential her counseling records, through written records and direct testimony. The consent form signed by M.N.H. and K.H. unequivocally stated:

[T]he material during these services is not privileged and may be used in a court of law or in a proceeding in which I'm currently involved. If these therapeutic services have been Court ordered, I acknowledge that a report will be forwarded to the Court by CEC. I also understand that this release is also for my children and that any information regarding the children obtained during the course of these services may be released.

Further, Melissa Ciottone, the CEC therapist, testified that the parameters of confidentiality were discussed with M.N.H. prior to beginning therapy.

We are satisfied that the reports of Ciottone were properly admitted into evidence under Rule 5:12-4(d), which allows DYFS to submit into evidence "reports by staff personnel or professional consultants[,]" pursuant to N.J.R.E. 803(c)(6) and 801(d). CEC is a consultant in that DYFS referred M.N.H. to CEC, and also relied on CEC's opinion in formulating a plan for the family.

As part of its "reasonable efforts" to rehabilitate M.N.H. and reunify her with her two children, DYFS offered the CEC's therapy service to M.N.H. and K.H., and M.N.H. was mandated to comply with the service by court order. M.N.H. was on notice from the start of the therapy that what she disclosed to Ciottone would be communicated to DYFS. DYFS in turn, under the statutory requirement imposed by the four prong test contained in N.J.S.A. 30:4C-15.1, was going to use the information to prove its case.

Further, as this court recognized in In Re Civil Commitment of A.X.D., 370 N.J. Super. 198, 202 (App. Div. 2004), treatment records "[are] admissible for their truth under applicable exceptions to the hearsay rule." "[T]he reports of the . . . treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth insofar as they factually reported . . . statements or refusals to discuss certain issues." Ibid. "[S]tatements made to the treatment team . . . were admissible as statements of a party." Ibid.

Judge Callahan properly concluded that the purpose of allowing Ciottone's statements was to measure "the success or non-success of the counseling." The judge permitted the statements because they were court ordered and because of the signed consent form.

Dr. Dyer also properly relied on Ciottone's evaluation, as well as many other reports provided to DYFS in forming his opinion of M.N.H.'s parental fitness. Dr. Dyer reviewed the entire DYFS file before rendering his report and before testifying to his own independent opinion. See N.J.R.E. 703.

Independent of the fact that the voluntary consent form was signed by M.N.H. and K.H., we are satisfied that N.J.R.E. 505, the psychologist-patient privilege, does not bar the Ciottone reports and testimony.

N.J.R.E. 505 provides:

The confidential relations and communications between and among licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.

In Arena v. Saphier, 201 N.J. Super. 79, 88 (App. Div. 1985), we determined that the patient-psychologist privilege is not absolute and likened it to that of the attorney-client privilege "when confidential communications are made a material issue in a judicial proceeding, fairness demands waiver of the attorney-client privilege."

In Kinsella v. Kinsella, 150 N.J. 276, 306-07 (1997), the Supreme Court stated that the lawyer-client privilege should be pierced, under the test set forth in In re Kozlov, 79 N.J. 232, 243-44 (1979), if: "(1) there [is] a legitimate need for the evidence; (2) the evidence [is] relevant and material to the issue before the court; and (3) by a fair preponderance of the evidence, the party . . . show[s] that the information cannot be secured from any less intrusive source."

Ciottone's report and testimony meets the Kozlov test. DYFS had the obligation to prove by clear and convincing evidence that M.N.H. was "unwilling or unable" to eliminate the harm to E.N. and K.N. Ciottone's testimony was material and relevant to that issue and DYFS had no other source to provide such information in that no other party formed a therapeutic relationship with M.N.H. in the area of parenting and bonding.

Appellant's supplemental letter brief of February 25, 2006, filed under Rule 2:6-11(d), cites to this court's decision in New Jersey Division of Youth and Family Services v. M.M., 382 N.J. Super. 264 (App. Div. 2006). In M.M., we held that, "one parent cannot be held responsible for the shortcomings of the other, at the cost of forfeiting his parental rights; the non-culpable parent is obliged only to exert reasonably successful efforts to protect the child from the harm inflicted by the deficient parent." Id. at 282.

M.M. is distinguishable from this case because K.H. is not a biological parent, but a step-parent, and as such is not a named defendant in this case. K.H. has no parental rights to either E.N. or K.N. DYFS provided services to K.H. because he presented himself as part of the "plan" together with M.N.H, as a married couple. Moreover, Dr. Dyer and Ciottone testified and the judge accepted that M.N.H. could not parent E.N. or K.N. alone. In the opinion of both Dr. Dyer and Ciottone, K.H. is a liability to M.N.H., but K.H. was not the reason M.N.H. could not parent the children. The judge determined that M.N.H. was not fit to parent because of her own mental illness, her ongoing panic attacks, her lack of progress in therapy, and her inability to meet the needs of the children should they be returned to her care.

On appeal, M.N.H. claims that DYFS failed to prove by clear and convincing evidence the four prongs of the "best interests of the child" test set forth in N.J.S.A. 30:4C-15.1a. See N.J. Div. of Youth and Family Serv. v. A.W., 103 N.J. 591, 604-11 (1986). Under this test, DYFS must prove by clear and convincing evidence the following four elements:

(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-15.1a.]

Our Supreme Court has cautioned that these criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). "[T]hey relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid.

The underlying concern for a child's welfare is the need for permanency within a reasonable timeframe. See In re Guardianship of J.C., 129 N.J. 1, 26 (1992). There is a "strong public policy in favor of permanency. In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. This principle has been codified by Title 30 which was amended to conform to the Federal Adoption and Safe Family Act of 1997, prohibiting a parent from keeping his or her child in foster care for a protracted period of time. See N.J.S.A. 30:4C-15.

As a reviewing court, we are bound by the trial court's factfinding "when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Here we are in agreement with the findings and conclusions of Judge Callahan, which are amply supported by the record. DYFS has proved by clear and convincing evidence that termination of the parental rights of M.N.H. is in the best interests of E.N. and K.N.

Affirmed.

 

The parental rights of J.R., the biological father of K.N. and E.N., were also terminated. DYFS offered an affidavit of diligent inquiry dated August 26, 2005, outlining its attempts to locate J.R. J.R. did not appear at the guardianship trial. J.R. has not appealed the order of guardianship.

After the order of guardianship was entered, K.N.'s foster parents indicated a wish to adopt her.

(continued)

(continued)

17

A-0875-05T4

RECORD IMPOUNDED

May 19, 2006