NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5909-04T45909-04T4

A-6255-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.C.,

Defendants-Appellants,

IN THE MATTER OF THE

GUARDIANSHIP OF S.C. AND S.C.,

Minors.

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.C.,

Defendants-Appellants,

IN THE MATTER OF THE

GUARDIANSHIP OF S.C. AND S.C.,

Minors.

 
Submitted December 20, 2005 - Decided February 2, 2006

Before Judges Lefelt, Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-78-04.

Yvonne Smith Segars, Public Defender, attorney for appellant M.C., Docket No. A-5909-04T4 (Alison Perrone, Designated Counsel, on the brief).

M.C., appellant, Docket No. A-5909-04T4, filed a supplemental pro se brief.

Yvonne Smith Segars, Public Defender, attorney for appellant M.C., Docket No. A-6255-04T4 (Alan I. Smith, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent, Docket Nos. A-5909-04T4 and A-6255-04T4 (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondents S.C. and S.C. minor child-respondents (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

We consolidate these separate appeals for the purpose of addressing them in this opinion. In the first appeal (A-5909-04T4), Melody C., the adoptive mother of the minor children, Sally and Steven, appeals from the June 13, 2005 order and judgment of the Chancery Division, Family Part, terminating her parental rights to the two children and placing them in the care and under the guardianship of the New Jersey Division of Youth and Family Services (DYFS) for all purposes. She asserts that the trial judge failed to make adequate factual findings to support his order and judgment, that DYFS failed to carry its burden of proving, by clear and convincing evidence, each of the statutory requirements to support termination of her parental rights, see N.J.S.A. 30:4C-15.1a, and that a variety of other errors during the trial deprived her of her constitutional rights. In the second appeal (A-6255-04T4), Matthew C., the adoptive father of the two children, appeals from the same judgment to the extent that it terminated his parental rights. In his appeal, he challenges one of the judge's evidentiary rulings and he argues that DYFS failed to prove three of the four statutory factors required for termination of his parental rights. We disagree with the arguments raised in each of these appeals, and we affirm.

The following facts are derived from our review of the record. Sally and Steven were born on December 12, 1996, and on April 17, 1999, respectively, in Latvia. They were adopted by Melody and Matthew on October 10, 2001 and were brought to live in the United States at that time. Consequently, by the time of their adoption, Sally was nearly five years old and Steven was two and one-half. According to documents provided to Matthew and Melody at the time of the adoption, both of the children were suffering from developmental delays and physical maladies. The Latvian judgment of adoption noted that the children "need medical treatment, individual approach and upbringing, which only a family can provide."

On October 18, 2002, approximately a year after the children came to this country, DYFS removed them from the residence that they shared with Melody and Matthew. That morning, Raymond Dressler, the local building inspector, had gone to the residence to execute an administrative warrant which permitted him to search the residence for building code violations. That warrant was based on the condition of the exterior of the residence and on Dressler's observations of household items that blocked the windows and doorways. Dressler asked that a member of the local police department assist him in executing the warrant. Dressler arrived, alone, at the residence at approximately 10:30 a.m. and decided to wait for the officer, Bruce Piatt, before trying to enter the residence. As he waited, he saw Melody and Matthew leave the home, get into their car, and drive away. The two adults did not have any children with them as they left the home and departed in the car.

When Piatt arrived, Dressler sent him away to attend to his other police duties. Dressler remained near the residence, waiting for Melody and Matthew to return. They returned about three and one-half hours later, at approximately 2:00 p.m. According to Dressler, they did not have any children with them when they came back. Dressler summoned Piatt and the two of them approached Matthew, who was in the back yard. They told him that they had a warrant. Matthew told them to go around the house to the front door, promising that he would come and unlock it so that they could enter. When they got to the front door, however, they found that it was both unlocked and partially open. They could hear Matthew shouting to Melody, "Get the kids out of the house, the cops are here." Piatt and Dressler then walked in the front door. They went up the stairs to the second floor where they found Matthew and Melody standing outside of a door that had three different locking devices. When they entered that room, they found Sally and Steven sitting at a small table, eating cereal and using creamers that appeared to have come from a diner or restaurant in place of milk. According to Dressler, the children were clothed:

in their pajamas. I -- I used the terminology that they looked disheveled. Their hair was a mess, they smelled of urine. They were not groomed. Their clothing seemed to be soiled.

. . .

There was a couch that basically was stained with urine. There were two small children's beds that had covers on them. There was scribbling on the walls, there was -- the floor was urine soaked. There was a little potty against the one door that was filled, the potty, the small child's seat was filled.

Q. Filled with?

A. Urine and feces.

Piatt, who also testified at the termination proceeding, described his first view of the children as follows:

there were two -- two small children in pajamas sitting at a table in the center of the room eating bowls of cereal. What caught my attention there was that they were -- they didn't have milk, they had coffee creamers, the little small plastic containers. There was a big bag of those on the counter. There was empty ones, open ones on the table and on the floor around them, so that's what they were using as milk. The room, it reeked of urine. It was -- it was filthy. Your feet almost stuck to the -- to the carpet. It was like a soggy carpet. There were two small crib size beds on the floor. That plas -- the table in the center of the room and a couch and some -- a pile of toys in the corner and like a training port-a-potty. The port-a-potty was half full of urine. There were no shades. Everything was filthy, the rooms, the walls were filthy, the floor, everything. It stunk.

The children were -- were dirty, still in pajamas. Both of them didn't have diapers on. It just struck my attention so much that right then I knew I needed to contact DYFS.

Piatt interviewed Melody and Matthew, who gave changing accounts of their whereabouts during the day and who told different stories about whether they had left the children alone while they were out of the residence earlier in the day. Based on his observations of the condition of the room and the two children and based on the information from Dressler that the two adults had not left or returned with the children, meaning that the children had been left alone in the house for several hours, Piatt contacted DYFS.

When the DYFS caseworker arrived, she noted that the two children, who were then playing outside, were not appropriately dressed for being out in the cold weather. Steven had no outerwear and neither child was wearing socks or sneakers. The caseworker's description of the inside of the house was similar to what Piatt and Dressler reported. In addition, she found little food in the refrigerator and she found that there was a freezer filled with meat that had developed freezer burn. When she tried to speak with the children, Steven was unable to respond. Sally reported that the two children had been locked in the room but was unable to explain how often they were locked in or for how long they were left locked in the room at any one time.

The caseworker told Melody that she would need to conduct an investigation and that the children could not stay in the home. Neither Melody nor Matthew has any family members in this country, and in spite of Melody's efforts to contact friends to help, she was unable to find any alternate residence for the children. The caseworker then effected an emergency removal of the children. She first took them to a local hospital for medical assessment and clearance prior to placement in foster care. According to the emergency room personnel, both of the children were dirty and their hair was matted. Steven had an ear infection and the doctor thought that both of the children might have head lice. Whether either child actually had lice, however, could not be determined because of their matted hair. The caseworker was given prescriptions for treatment of Steven's ear infection and for prophylactic treatment of both children for head lice.

During the investigation that followed, DYFS discovered that while the children were in the care of Melody and Matthew, Sally had been seen once by a pediatrician. That visit had been in connection with Melody's plan to enroll her in school, but Melody had failed to return to the doctor with her for required follow-up care. During the same time, Steven had never been seen by a pediatrician. At the time of the removal of the children, neither was enrolled in school or attending a school program, and it was unclear whether either child had received routine childhood inoculations.

On the date when the children were removed, Dressler attempted to conduct his search pursuant to the warrant. The home was cluttered with household items, including commercial freezers and thirteen stoves. In many areas the items were "packed floor to ceiling." He was unable to gain access to nineteen of the twenty-six rooms in the residence because they were packed so full of household goods and other items. He classified the structure as unsafe because he feared that the building could not support the enormous weight of the items stored in it.

Immediately after the children were taken to the hospital for their examination, Melody and Matthew were charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and they were arrested. Following a jury trial, they were both convicted of that offense and on March 16, 2004, each of them was sentenced to a term of eight years in prison. They were still in custody at the time of the trial that gives rise to this appeal. After the removal of the children and prior to the incarceration of Melody and Matthew, DYFS referred both parents for parenting classes, psychological evaluations and therapy. Both participated in these programs until shortly before they were incarcerated. In addition, DYFS arranged for supervised visitation with the children. Both parents were consistent in attending visitation and the reports of those sessions revealed that they were appropriate and affectionate with the children. Neither parent desired to continue visitation during the time when they were in prison and visitation was suspended at that time. Melody resumed visitation in April 2005, at which time she had been transferred to a halfway house.

In December 2003, because Melody and Matthew were facing criminal charges and the possibility of incarceration, because the children had been in foster care in excess of a year since the time of their removal, and because Melody and Matthew refused to provide names of any family members who might be able to care for the children, DYFS concluded that reunification or placement of the children with family members would not be possible. As a result, DYFS sought the termination of defendants' parental rights and selected home adoption.

The first foster care placement, which had begun in October 2002, was eventually found to be unsuitable, and at the time of the trial, the children were residing with Mr. and Mrs. S., a young couple. At trial, DYFS personnel testified that the children had made much progress while in the care of Mr. and Mrs. S. and they were described as thriving. The DYFS caseworker praised Mr. and Mrs. S. for providing "remarkable structure and routine" that the children needed and described in-home therapy that the children were receiving as well. She testified that DYFS planned foster home adoption for the children. Mrs. S., however, expressed some reservations about adopting the children, equivocating about whether she and her husband would agree to do so. At the time of the trial, she and Mr. S. had only been caring for the children for approximately six months and she expressed reluctance to a DYFS-retained expert about agreeing to take the children if their parents were capable of being reunited with them.

Both Melody and Matthew were evaluated by Dr. Frank J. Dyer, a psychologist who testified on behalf of DYFS. In addition, Matthew participated in a bonding evaluation which took place at the prison where he was being held. Melody refused to permit a bonding evaluation because she did not want the children to see her while she was incarcerated and she would not agree to be transported to the prison where the evaluation was scheduled to take place.

At trial, Dr. Dyer explained the testing that he had performed on Matthew. He opined that Matthew did not have the ability to place the children's needs above his own and lacked both insight and the judgment needed to make appropriate decisions for the children. He noted that the condition of the home, the practice of locking the children in a room and the failure to provide medical care to the children were significant to his opinion. He also relied, in part, on Matthew's prior New York conviction for neglecting an elderly resident of his boarding home, which Dr. Dyer concluded was a past incident of similar behavior. Dr. Dyer recognized that Matthew had complied with services DYFS had offered to him prior to this incarceration, but concluded that he needed at least an additional year of therapy following his eventual release before he would be capable of adequately parenting the children.

Dr. Dyer also testified about the results of his bonding evaluation of Matthew and the children. Dr. Dyer found that Sally had a "continuing positive emotional tie" with Matthew which fell short of a true attachment. He found that Steven, because of his age and his cognitive limitations, lacked any bond with Matthew. Dr. Dyer opined that although Sally would suffer an emotional loss if Matthew's rights were terminated, it would not result in enduring psychological harm and could be adequately addressed with therapy. In Dr. Dyer's opinion, Steven, who lacked any bond with Matthew, would not suffer any loss in the event of termination of Matthew's parental rights.

Dr. Dyer also testified about his psychological evaluation of Melody. Because she refused to participate in formal testing, he was not able to offer a diagnosis of any psychological condition. However, he spent about two hours with her and based his opinion on that interview. He identified several factors as significant to his opinion. These included the fact that Melody had also been involved in the earlier New York criminal proceedings, that she had tried to conceal the presence of the children in the home when confronted by the authorities and that, although she is a trained nurse, she failed to arrange for appropriate medical care for the children.

Dr. Dyer described Melody as "extremely emotionally labile" and lacking in any insight into the impact that her behavior had had on the children. He testified that she demonstrated little understanding of the special needs of these children, instead denying that she had neglected them in any way and describing herself as "a good parent in absolutely all respects." In addition, according to his report, he found that Melody is "extremely passive-aggressive and oppositional when she feels threatened by authority figures. She also displays a tendency to project blame and responsibility for her problems onto others." Dr. Dyer found that Melody "displays the stereotypical shallow and manipulative tendencies associated with Histrionic Personality Disorder." In his opinion, Melody would need "at least a year of intensive [therapeutic] services . . . additional parenting skills training" and that "in-home supervision in the form of the homemaker or behavior specialist . . . would also be an appropriate safeguard" in order for Melody to be able to function as a parent.

Dr. Dyer also testified about his evaluation of the bonding between the children and Mr. and Mrs. S., the foster parents who were then caring for Sally and Steven. Dr. Dyer's assessment was performed on April 28, 2005, at which time Mr. and Mrs. S. had only been caring for these children for about four months. Dr. Dyer described the children as very emotionally responsive to these foster parents and opined that the children would eventually form an attachment to the foster parents if they remained in that placement. He noted that the foster parents were nurturing and affectionate with the children and were tuned in to their needs. Dr. Dyer also testified about the special needs of the children, focusing on their cognitive delays, the possibility that one or both of them suffers from Fetal Alcohol Syndrome, and their difficulties in forming attachments. He expressed great concern in his report for the welfare of the children, describing it as "especially urgent that the matter of their permanency be resolved as soon as possible" in light of their history and circumstances.

At trial, Melody and Matthew presented the expert testimony of Dr. Paul Fulford, a psychologist. Dr. Fulford testified that Matthew had no personality disorders that would preclude him from parenting these children and opined that he is capable of being an adequate parent. Dr. Fulford conceded, however, that Matthew would require three to six months of therapy following his eventual release from prison in order to equip him to do so. In addition, he testified that both of the children had formed a bond with Matthew and that severing that bond would cause them serious and enduring harm. Although Melody had refused to participate in a bonding evaluation performed by Dr. Dyer, the court permitted Dr. Fulford to testify at trial about a bonding evaluation he had performed to assess the children's bonds with Melody. Dr. Fulford, who had not prepared a report of that evaluation, was allowed to testify from his notes. He described the children as being "happy" to see Melody and he testified that she demonstrated appropriately attentive and affectionate behavior toward them. He concluded that both of the children had developed an emotional attachment and an enduring bond to her that would cause them to suffer serious harm were her rights to be terminated.

The trial judge issued a written opinion on June 13, 2005 in which he summarized the testimony and the evidence and concluded that DYFS had proven each of the four statutory requirements for termination of Matthew's and Melody's parental rights by clear and convincing evidence.

On appeal, both Matthew and Melody assert that DYFS failed to prove three of the four statutory requirements by clear and convincing evidence. In addition, Matthew argues that the trial judge erred in permitting his prior conviction in New York into evidence, thus depriving him of a fair trial. Melody contends through counsel that the trial judge's factual findings were insufficient. Finally, in a supplemental pro se brief, Melody challenges the judge's decision on a variety of bases, including the lack of a bonding evaluation by DYFS, the unwillingness of the foster parents to affirmatively commit to adoption, unfair surprise at trial, bias, failure to consider the alternative of kinship legal guardianship, insufficiency of the evidence concerning neglect, and violations of her constitutional rights to free speech. Our thorough and careful review of the entire record compels us to reject each of these arguments and to affirm.

We begin our review by considering the arguments directed to the four statutory prongs and the adequacy of the factual and legal findings included in the judge's decision, before turning to the several evidentiary and other arguments raised by the parties separately. An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. The appellate court reviews the record to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also accords considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the judge's factual findings are supported by the evidence, the appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)(citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A father's or mother's right to parent his or her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)(citations omitted). However, that right is not absolute and must yield to protect a child's welfare. See New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted). These standards, which are now codified in the statutory four-part test, see N.J.S.A. 30:4C-15.1a, are not discrete but are to be applied in light of the particular facts and circumstances in the record.

Applying these familiar principles to the record before us, we find no ground on which to interfere with the trial judge's findings and conclusions. The record reflects that both Matthew and Melody were neglectful and abusive toward Sally and Steven. Although their convictions on criminal charges relating to endangering the welfare of these children would, under the circumstances, support the judge's finding on the first statutory prong, N.J.S.A. 30:4C-15.1a(1), the salient facts from the record give content as well to our review of the sufficiency of the judge's decision on the other requirements of the statute for termination. The parents left the children unattended and locked in a room without a functioning bathroom. The children were not properly clothed for the cold weather. Sally was only taken once to see a doctor for the purpose of trying to enroll her in school, but her parents did not return with her for required follow-up care. Steven was never seen by a health care provider during the year he lived with Matthew and Melody. Both of the children have significant developmental delays and other special needs, but these parents took no steps to evaluate the extent of those needs or to begin to secure the treatment or care that the children needed. Neither child was enrolled in school. The home was cluttered to the point that it was not fit for children or anyone else to live there. There was little, if any, suitable food in the residence.

The record also demonstrates that neither parent is willing or able to eliminate this harm and that delaying permanency for these children will add to the harm. See N.J.S.A. 30:4C-15.1a(2). Although it appears that Melody has been released from prison and that Matthew may be released in the near future, both of the experts agreed that neither would be able to adequately parent these children upon release. The experts differed only about the length of time that each parent would require in order to address his or her parenting deficits, agreeing that neither is currently equipped to adequately care for these children. We have considered this evidence in the context of its relationship to the issue of whether either of these parents may in the reasonably foreseeable future become an adequate parent. See N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 262-63 (App. Div. 2005).

The record demonstrates that both Melody and Matthew are wholly lacking in insight as to the needs of these children and the manner in which to care for them. They are unwilling to accept any responsibility for the circumstances which led to the removal of these children, blaming others and minimizing the effects that their neglect and abuse have had on Sally and Steven. Nor do we agree with their assertion on appeal that terminating their rights will only add to delay in permanency for the children. The candid expression by Mrs. S., the foster mother, of uncertainty about her ability to adopt the children does not diminish the fact that the children are thriving in the care of their foster parents. Indeed, her equivocation at trial was in response to repeated questioning, much of it punctuated by Melody's outbursts. Significantly, Mrs. S. told Dr. Fulford that she did not want to "steal" these children from their parents if those parents were capable of caring for them. Her testimony reveals a healthy appreciation for the enormity of the task of caring for these special needs children and an understandable reluctance to confront Melody publicly.

Third, the efforts of DYFS to provide services and to consider alternatives to termination were sufficient. See N.J.S.A. 30:4C-15.1a(3). Matthew and Melody have no family members in this country and refused to provide names of any family members in their native land who might be able to assist with the care of the children. Because Melody and Matthew did not want their family members to know that they had been convicted and were facing incarceration, they simply refused to identify family members as alternative placements for the children. In that context, DYFS acted appropriately in its selection of a foster home and in declining to press them further. We reject, in particular, Melody's assertion on appeal that DYFS should have considered kinship legal guardianship, see N.J.S.A. 30:4C-84 to -87, and that the judge erred in failing to order DYFS to do so. The current caregivers, to whom Melody would assign this role, do not meet the statutory definition of kinship caregivers, see N.J.S.A. 30:4C-84, as a result of which that alternative is not an available option. Similarly, Matthew's suggestion that the children be placed in long-term foster care overlooks the repeal of that aspect of the statute, see N.J.S.A. 30:4C-26.10, making that option equally unavailable.

Finally, the evidence in this record amply demonstrates that termination of the parental rights of both Melody and Matthew will not do more harm than good. See N.J.S.A. 30:4C-15.1a(4). Although Sally has developed a "positive emotional tie" to Matthew, and although the children demonstrated affection for both Matthew and Melody, the record supports the conclusion of the trial judge that the children will not suffer more harm than good as a result of termination. Neither parent suggests that he or she is now capable of parenting these children. Rather, each asks that permanency be delayed while they engage in months, if not years, of therapy in an effort to learn to parent these children. It is significant that the children are very emotionally responsive to Mr. and Mrs. S. and are thriving in their care. Our review of this record supports the conclusions of the trial judge on this final aspect of the statutory test for termination.

Having concluded that there is clear and convincing evidence in the record to support the termination of the parental rights of both Matthew and Melody, we turn to the other specific arguments that each of them has raised individually on appeal. Matthew argues that it was error for the court to permit Dr. Dyer to rely on evidence of his earlier New York conviction and error to admit documents relating to that conviction into evidence. He asserts that the trial judge erred in failing to engage in an appropriate hearing to consider the admissibility of this evidence, see N.J.R.E. 404(b); State v. Cofield, 127 N.J. 328, 338 (1992), and that the evidence and any references to it should have been excluded as unduly prejudicial. See N.J.R.E. 403. We disagree.

We have previously held that evidence that might otherwise be inadmissible other crimes evidence may be included in the testimony of an expert if it is information of the sort that experts would ordinarily rely upon in formulating an opinion. See N.J.R.E. 703; State v. Burris, 357 N.J. Super. 326, 335-38 (App. Div. 2002), certif. denied, 176 N.J. 279 (2003); State v. Eatman, 340 N.J. Super. 295, 302 (App. Div.), certif. denied, 170 N.J. 85 (2001). It is particularly significant here that the information about the prior conviction on which Dr. Dyer relied was first supplied to him by Matthew. In his interview, Matthew explained at length his view of the circumstances surrounding that experience to Dr. Dyer. The information contained in Dr. Dyer's report was appropriate in the context of his evaluation. In light of the fact that the psychologist had already heard about the conviction and had referred to it in his report, it is of little consequence that the actual records of the conviction were introduced at trial as well. The trial judge, hearing the matter without a jury, was well equipped to consider that evidence only for its appropriate limited purpose.

Melody, through counsel, argues that the judge's factual findings were insufficient to support his judgment and urges us to reverse on that ground. See R. 1:7-4. We, however, have carefully reviewed the proceedings and have concluded that the judge's findings and conclusions are not only adequate and in compliance with the dictates of the applicable rule, but that his findings and conclusions are based on substantial, credible evidence in the record. Cesare, supra, 154 N.J. at 411-12; Rova Farms, supra, 65 N.J. at, 483-84. We will therefore not disturb them.

Melody also filed a supplemental pro se brief raising a large number of other arguments. Many of them echo the points raised by counsel on her behalf or by counsel for Matthew, but others are her own. We have considered each of these arguments in light of the record and the applicable legal precedents and we have concluded that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief observations.

Melody's argument that the absence of a DYFS bonding evaluation precluded termination of her parental rights overlooks the fact that the judge received and considered the bonding opinion of her expert, Dr. Fulford. In fact, the judge permitted her expert to testify about his findings and to offer his opinions notwithstanding the fact that he had not prepared a report and had not therefore provided DYFS with notice about the substance of his opinions in advance of the trial.

Melody's argument that she was the victim of unfair surprise or that the attorney representing DYFS engaged in prosecutorial misconduct are without basis in the record. This argument on appeal relates to the incident during trial when the attorneys argued about whether Dr. Dyer could be shown records relating to the New York conviction. Melody's attorney contended that if Dr. Dyer had not been provided with the records prior to preparing his report, it would be inappropriate for him to consider them at trial. She demanded a mistrial when the judge overruled her objection. On appeal, Melody contends that she was deprived of an opportunity to discuss this evidence with Dr. Dyer and to convince him to alter his opinion. We, however, find no error in this record. Dr. Dyer was aware of the conviction and discussed it in his report, which was served on the parties in advance of trial. Providing him with copies of the actual record of the conviction was neither new evidence nor a surprise to the defense.

Finally, Melody argues on appeal that the judge was biased and that he violated her rights to free speech during the trial. She asserts that she was prevented from offering testimony, that she was removed from the courtroom in violation of her constitutional rights and that the judge was biased against her throughout the proceedings. We do not lightly dismiss arguments such as these and we have, therefore, searched the record thoroughly for evidence of bias or of any deprivation of this litigant's constitutional rights. We have found none. On the contrary, to the extent that she asserts that she was deprived of an opportunity to testify, the record reflects that counsel for both Matthew and Melody advised the court that neither desired to testify. We therefore reject her contention on appeal that she was denied the right to speak in her defense.

Moreover, to the extent that Melody contends that she had a constitutional right to confrontation or to be present in the courtroom throughout the proceedings and that her removal violated these rights, we do not agree. We have previously held that court proceedings for termination of parental rights are civil, and not criminal, matters. See 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). We have rejected as well, therefore, the assertion that due process mandates that a parent be present during the proceedings. Ibid. (citations omitted). Nothing in this record suggests a basis for reaching a contrary conclusion.

The record reveals no bias or unfairness in the judge's treatment of this litigant. Indeed, from the first day of trial, Melody repeatedly interrupted the proceedings, arguing from her seat with witnesses and lawyers and verbally expressing her displeasure with both testimony and rulings with which she did not agree. She was repeatedly admonished by her own attorney, by Matthew's attorney, and by the court that her outbursts were inappropriate and disruptive. Rather than exhibiting bias or unfairness, the trial judge demonstrated an abundance of patience in the face of behavior that was not only inappropriate, but rude and insulting. His eventual direction that she be removed, which occurred near the end of the trial, followed ample warnings to her that her behavior would no longer be tolerated. Even so, we find in this record no evidence that her behaviors caused the judge to view the evidence in anything other than a fair and impartial manner.

 
Based on our review, we are satisfied that the judge's findings of fact are supported by substantial credible evidence in the record and that those facts establish, as the judge concluded, that DYFS proved each part of the statutory test for termination of parental rights by evidence that is both clear and convincing.

Affirmed as to both appellants.

"Melody C." and "Matthew C." are fictitious names for the two parents. For the sake of clarity, we have elected to use these names in place of the initials of the two parents, who are both referred to in the record as "M.C." and "M.C." Similarly, the two children who are the subjects of this appeal are referred to in the record as "S.C." and S.C." We have designated them by the fictitious names "Sally" and "Steven."

At trial, defendants produced limited medical records from Latvia that they had received in connection with the adoption of the children. Sally's record refers to her receipt of "preventive inoculations according to her age" but Steven's record has no similar reference. Neither child received any routine medical care in this country while in the custody of Melody and Matthew.

It appears from documents in the record filed on appeal that Melody has since been released on parole. Matthew's earliest parole date is in February 2006.

(continued)

(continued)

29

A-5909-04T4

RECORD IMPOUNDED

February 2, 2006