DIVISION OF YOUTH AND FAMILY SERVICES v. Y.T and A.Q IN THE MATTER OF Y.Q a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4157-10T2

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Y.T.,

Defendant-Appellant,

and

A.Q.,

Defendant-Respondent.

__________________________________________________________

IN THE MATTER OF Y.Q., a minor.

___________________________________________________________

February 24, 2012

Submitted January 31, 2012 - Decided

Before Judges Carchman and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FN-20-90-09.

Joseph E. Krakora, Public Defender, attorney for appellant (Howard Danzig, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christian A. Arnold, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent A.Q. (Michael C. Wroblewski, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Y.Q. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant Y.T., the mother of Y.Q., born December 29, 2004, appeals from the Family Part order of March 11, 2011, finding Y.T. guilty of abuse and neglect and ordering that legal and physical custody of the child be awarded to the child's father, A.Q.1 Judge Kathryn A. Brock concluded that the child could not be returned safely to defendant's care. We conclude that the judge's findings were based on substantial credible evidence and affirm.

The following facts are adduced from the record. For the first two years of Y.Q.'s life, the child lived with her mother, father, and maternal grandmother. When her parents separated, the child continued to live with her mother and grandmother.

On January 7, 2009, the New Jersey Division of Youth and Family Services (DYFS or the Division) received a report from Trinitas Hospital (Trinitas) expressing concern for the child.2 Defendant had brought the child into Trinitas by ambulance stating that the child needed to be seen "right away" because she "needed blood work," was "jaundice," and had "one leg . . . longer than the other." The hospital found nothing wrong with the child and believed defendant had a "psychiatric condition." At the time of this report, defendant was in restraints and scheduled to be seen by the crisis unit at the hospital. The next day, defendant was admitted to Trinitas for "bizarre behavior" and, thereafter, "aggressively treated" for bipolar disorder.

Within a week, defendant was admitted to the Inpatient Psychiatric Unit at Runnells Specialized Hospital (Runnells) with a diagnosis of bipolar disorder. She was transferred from Trinitas to Runnells because she required further inpatient psychological therapy, and during the course of defendant's treatment, the child remained in the care of her grandmother. Defendant refused to sign a release authorizing DYFS to speak with her doctors. DYFS did learn, however, that defendant had been hospitalized at Trinitas six times. Defendant initially refused to take prescribed medication, claiming that "there is nothing wrong with her." Defendant eventually started taking her medication; she was discharged on February 9, 2009, at which time her mood had stabilized, and her thinking had become coherent.

That same day, DYFS caseworker Juan Emilio Ane met with defendant at her home. Ane had no immediate concerns regarding the child's well-being, except that she was visibly overweight. Ane attempted to discuss the discharge recommendations defendant had received from Runnells, but defendant was uncooperative and considered Ane's presence and questioning to be "intrusive." Defendant disagreed with Runnells' recommendation that she continue to take her medication or attend follow-up appointments with the Bridgeway Partial Care Program (Bridgeway). Ane repeatedly reinforced the need for defendant to follow Runnells' recommendations; however, defendant vacillated between understanding and not understanding that need, and ultimately "ma[de] the decision not to continue the medication."

On February 10, 2009, defendant called Ane; she was "very distressed," and "frantically" asserted that the child needed to see a pediatrician immediately because diabetes ran in her family and the cold medication the child was receiving "had high levels of sugar." When Ane asked defendant if she had taken her medication, she said no because she did not have time to pick it up from the pharmacy. Against Ane's recommendation, defendant took the child to a pediatrician. Defendant convinced the pediatrician to prescribe the child a different medication, but she "distrust[ed] the pediatrician." She informed Ane that she planned to change pediatricians and take the child to the emergency room later that day. She complained that the child had a runny nose and mucus in her eyes. Ane had not noticed those symptoms when he observed the child the night before. Ane again asked if defendant had obtained her medication; defendant responded that she was waiting for a neighbor to take her to the pharmacy.

That night, Ane visited defendant and the child at their home. Even though Ane observed the child and noticed she did not exhibit any eye problem, defendant continued to insist that a problem existed. When Ane asked whether defendant had her prescriptions, defendant contradicted her earlier statements by asserting that she was waiting for the medication to arrive by mail. Ane then completed a safety protection plan with defendant and her mother for the purpose of discussing Runnells' discharge recommendations.

Defendant vacillated between agreeing and refusing to take her medication, and asserted that her ability to care for the child was unrelated to her remaining compliant with her medication. Ultimately, defendant agreed to take one of her medications Abilify, and also agreed to participate in the Bridgeway program and her jail diversion program. However, she refused to not only take her prescription for Depakote, but also to participate in other activities such as Integrated Case Management. Defendant also refused to permit her mother to monitor defendant's medication intake.

Ane contacted defendant again the following day, February 11, 2009. Defendant told Ane that she was "nervous" again and did not take the child to school because her eye infection had gotten worse, despite having given the child Claritin. Defendant planned to take the child to another pediatrician that day. When Ane asked if defendant had obtained her medication, defendant responded "no." At that point, DYFS prepared to remove the child from defendant's care because of concerns regarding defendant's inability to provide proper care for the child. Upon arrival at the family's home, DYFS personnel observed the child to be "very health[y] and doing well." After conversations with defendant, defendant's mother and father, and the child, DYFS removed the child from the home.

On February 17, 2009, the Division filed a verified complaint against defendant seeking custody of the child pursuant to a Dodd3 removal.

Following a three-day hearing, the judge made a finding of abuse and neglect by clear and convincing evidence against defendant. The court ordered that physical custody of the child be given to her father, A.Q., who resides in Nevada. Legal custody of the child remained with DYFS. In July, the child moved in with her father, where she still resides.

According to Ane's testimony at the hearing, defendant continually refused to take her medication after the child was removed from her care, and defendant had been hospitalized again at Trinitas as well as Trenton State Psychiatric Hospital (Trenton State) in April 2009. At the time the hearing commenced on April 20, 2009, defendant's status at Trenton State was as an inpatient.

At the hearing, defendant asserted that the child was sick when she took her to the emergency room and that defendant was "trying [her] best to take care of [the child]." On cross-examination, defendant acknowledged that she had refused to take her Runnells-prescribed psychiatric medication because of the side effects. According to defendant, she was misdiagnosed with bipolar disorder and, at the time of the hearing, was in the process of obtaining a second opinion regarding her diagnosis.

Defendant presented her mother and father as witnesses on her behalf. Although her mother testified that defendant is "fine" with the child even when defendant is not taking her medication, her mother also observed that defendant had taken the child to the hospital for no valid reason and experienced mood swings when not taking her medication. Her mother also believes defendant suffers from a mental illness. According to defendant's father, defendant is "a very good parent who feeds her baby and takes good care of her." He agreed that defendant has taken the child to the doctor when she was not sick, and that defendant would react "badly" upon hearing a doctor say the child was not sick. In his opinion, these instances resulted from defendant not having taken her bipolar disorder medication.

At the conclusion of the hearing, the judge found by clear and convincing evidence that the child was "at imminent risk of serious harm if left in the care of this . . . chronically mentally ill mother . . . who lacks [judgment] and insight, does not accept the validity of her current diagnosis and is noncompliant with [her] recommend[ed] medication and other interventions designed to stabilize her behavior." The judge also found that it is "a form of abuse to take a child to the doctor and to the hospital when there [is] nothing wrong with the child, thereby causing the child to undergo needless, multiple examinations."

At the subsequent G.M.4 hearing, DYFS caseworker Melinda Eugene related that defendant had been hospitalized for psychiatric reasons on two separate occasions for approximately thirty days each since Eugene took over defendant's case in September 2010, and that defendant still refused to take her prescribed medication because defendant does not believe she is bipolar.

With reference to services offered to defendant by DYFS, Eugene noted that defendant was referred for parenting skills classes, psychological and psychiatric evaluations, and homemaker services. However, defendant did not attend the parenting skills classes, and the homemaker services were ceased by DYFS because defendant was not taking her psychiatric medication.

Eugene also described her observations of the relationship between the child and her father A.Q. Having only recently been assigned the case, Eugene had only traveled to Nevada once. Eugene expressed no concerns regarding the care A.Q. was providing the child during that visit. Also, quarterly reports from a State of Nevada child welfare agency described the child as "happy and healthy," and the home environment being provided by A.Q. as "safe and stable."

Brian Flourney, an investigator for the Law Guardian, described the bond between the child and her father as "strong" and "comfortable," and related that personnel at the child's school had only positive things to say about her adjustment to her new home.

Finally, the State produced Alexander Iofin, M.D., a psychiatrist who had conducted a psychiatric evaluation of defendant. According to Dr. Iofin, defendant suffers from schizoaffective bipolar disorder and cannot remain stable without medication. Dr. Iofin further opined that defendant posed a danger to the child because of: 1) the risk that defendant could require future inpatient psychiatric care; and 2) the fact that defendant had incorporated the child into her delusions.

At the G.M. hearing, defendant admitted that she was currently not taking any medication and believed that she did not need the medication. She also disagreed with her diagnosis of bipolar disorder. At the conclusion of the G.M. hearing, Judge Brock5 found by a preponderance of the evidence that the child "cannot be returned solely to the care of [the defendant] at this time due to [defendant's] untreated psychiatric illness including [her] unwillingness to take medication. The child would be at risk of emotional harm and possibly physical harm if placed in [defendant's] care." She also ordered that defendant could have weekly phone contact with the child and supervised visits when A.Q. visited his family in New Jersey. This appeal followed.

On appeal, defendant asserts that there was insufficient evidence to support a finding of abuse and neglect.

In this appeal of a non-jury case, we must determine "whether the findings made [by the trial court] could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442-43 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). We will "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a feel of the case that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks and citation omitted). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.").

Title 9, N.J.S.A. 9:6-8.21 to -8.73, governs the adjudication of abuse and neglect actions. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). In an abuse and neglect case, the safety of children is the paramount concern. N.J.S.A. 9:6-8.8.

An "abused or neglected child" is defined in part as:

a child less than 18 years of age whose parent . . . (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; . . . (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof . . . .

[N.J.S.A. 9:6-8.21(c)(1)-(2), (4).]

The purpose of a fact-finding hearing in a Title 9 proceeding is not to assign guilt to a defendant but to determine whether a child is abused or neglected under N.J.S.A. 9:6-8.21. N.J.S.A. 9:6-8.44; N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 581 (App. Div. 2010). DYFS must establish abuse or neglect through "competent, material, and relevant evidence" by a preponderance of the evidence. N.J.S.A. 9:6-8.46(b); see also N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011). The trial judge "must articulate, with particularity, the facts upon which a determination of abuse or neglect is made." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 265 (App. Div. 2002).

By its terms, this definition requires that a risk of harm be "substantial" before it qualifies as abuse or neglect. However, a court "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004) (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). Abuse and neglect cases are generally fact sensitive. P.W.R., supra, 205 N.J. at 33.

Defendant asserts that the Division failed to prove that the child's physical, mental or emotional condition had been impaired by defendant. However, defendant ignores the Division's evidence that defendant posed a substantial risk of future harm to the child. The record demonstrates that defendant suffers from bipolar disorder, yet she refuses to acknowledge the diagnosis or accept treatment for her condition, including medication and psychiatric therapy. As a result, defendant has experienced, on more than one occasion, the delusion that her child was sick when, in fact, the child was healthy. Defendant took the child to multiple doctors, as well as the emergency room, keeping the child out of school on at least one occasion to do so, but disbelieved those doctors when they informed her that the child was not sick. On numerous occasions, defendant's psychiatric condition required lengthy inpatient care. According to Dr. Iofin, defendant's condition poses a danger to the child because (1) defendant cannot care for the child when defendant is receiving inpatient care, and defendant is highly likely to require future inpatient care given that defendant will not take her prescribed medication; and (2) it is not healthy for the child to be around, and further incorporated into, defendant's delusions. Under these circumstances, the trial court's finding of abuse and neglect was supported by substantial credible evidence.

Defendant cites S.S. in support of her defense. However, S.S. is inapposite. In S.S., the trial court ruled that a child's mother committed abuse and neglect by failing to shield the child from observing acts of domestic violence committed upon the mother by the child's father. S.S., supra, 372 N.J. Super. at 21-22. We reversed, noting that the trial court's decision was premised upon a finding that a child is negatively impacted by observing domestic abuse despite the fact that the record lacked evidence of emotional injury or a causal connection between children observing domestic violence and experiencing emotional distress. Id. at 22-23. These "evidential gaps" proved "fatal to the underpinnings of the court's conclusion that appellant abused her child." Id. at 23 (citations omitted).

In contrast to S.S., here, Dr. Iofin opined that defendant posed a danger to the child because of the risk that defendant could require future inpatient psychiatric care, as well as the fact that defendant had incorporated the child into her delusions. In S.S., we noted that, "[i]f we could take judicial notice of the fact that domestic violence begets emotional distress or other psychic injury in child witnesses, we would be less concerned by the court's conclusion here that appellant was an abuser." Id. at 25. Because the case at bar does not suffer from the same evidential gaps as S.S., defendant's reliance on S.S. fails.

We conclude that the judge's findings here were based on substantial credible evidence in the record, and we find no basis for our intervention.

A

1 Although A.Q. is named as a defendant, all references to defendant shall refer to defendant Y.T.

2 This was not the Division's first notice regarding defendant. For example, on August 6, 2007, the Division was notified by a neighbor that defendant used drugs, had mental health issues, and hit the child. Between September 27, 2007 and February 28, 2008, the Division received three additional referrals regarding this family. However, these reports were never substantiated.

3 "A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act . . . N.J.S.A. 9:6-8.21 to -8.82." N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (quoting N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010)).

4 N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009).

5 A different judge conducted the earlier hearing.