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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

B.C.,

Defendant-Appellant,

and

M.T.Z. and F.E.,

Defendants.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.A.E.C.,

D.T.C. and Y.T., minors.

0.

________________________________________________________________

February 14, 2014

 

Submitted January 14, 2014 Decided

 

Before Judges Espinosa and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-0045-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors M.A.E.C., D.T.C. and Y.T. (Christopher A. Huling, Designated Counsel, on the brief).

 

PER CURIAM

Defendant B.C. (Bonnie)2 appeals from an order that terminated her parental rights to three of her children, M.A.E.C. (Michael), born August 10, 2006; D.T.C. (Darren), born February 24, 2010; and Y.T. (Yanni), born February 24, 2011. We affirm, substantially for the reasons set forth in the oral opinion of Judge Audrey Peyton Blackburn (retired and on recall).

Under N.J.S.A. 30:4C-15.1(a), the Division "shall initiate a petition to terminate parental rights on the grounds of the best interests of the child" if:

(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.

 

In a prior guardianship action, we found that each of these prongs had been proven by clear and convincing evidence and affirmed the termination of Bonnie's parental rights to two of her other children, J.E. (Jesse) and I.C.-P (Isabel). N.J. Div. of Youth & Family Servs. v. B.C., Docket No. A-3094-10 (App. Div. July 11, 2013). We described Bonnie's history of mental illness, the failed attempts to address the potential harm to her children caused by her untreated illness, the Division's efforts to assist her, and the evaluations over the period from February 2007 until the termination of her parental rights in January 2011. Despite a well-documented history of mental illness, Bonnie maintained and continues to maintain she is not ill and does not require any medication. The evidence to the contrary is compelling. Just six months after Michael's birth, she set a fire in her basement while her children were at home, resulting in her involuntary commitment. She was diagnosed with psychotic disorder, not otherwise specified, with features of anxiety and depression. Her history of psychiatric hospitalizations includes one that followed an attempted suicide. Her persistent refusal to take medication and inability to secure employment or provide a safe and stable home for children rendered her unable to eliminate the harm to her children presented by her untreated mental illness. We found that adequate and appropriate services had been offered to Bonnie during this period. The facts we cited in our opinion, which were presented in this trial, remain applicable, and need not be repeated here.3

On May 6, 2011, the Division filed a complaint for guardianship, seeking termination of Bonnie's parental rights to Michael, Darren, and Yanni, as well as the termination of parental rights of the children's biological fathers.4 In a pre-trial hearing on August 4, 2011, counsel for the Division announced that Bonnie would be "evaluated by Dr. Kaska[5] on August 16th for psychological eval[uation] at 10:30 a.m.; bonding evaluation at 1 p.m.," at the Division's offices. The multi-purpose order entered that date directed Bonnie to attend psychological and bonding evaluations scheduled by the Division with Kaska on August 16, 2011. The order also declared that exhibits were due by October 7, evidence was to be submitted by October 21, and objections were due by October 28. Finally, the order stated:

THE FAILURE OF THE DEFENDANTS TO COMPLY WITH ANY PROVISION OF THIS ORDER . . . MAY RESULT IN A DEFAULT ENTERED BY THE COURT AND TERMINATION OF PARENTAL RIGHTS.

 

Bonnie did not appear for the August 16, 2011 evaluations and did not contact the Division to cancel them.

In a letter dated September 6, 2011, sent by regular and certified mail, the Division informed Bonnie in both English and Spanish that the evaluations she failed to attend were rescheduled to September 14, 2011. Bonnie did not appear at the evaluations or call to cancel them.

The evaluations were rescheduled again, for October 26, 2011. In a letter dated October 24, 2011, that was hand-delivered to Bonnie by an assistant family service worker, Bonnie was advised of the new date and offered transportation to the evaluations in both Spanish and English. However, Bonnie did not appear or call to cancel.

During trial on May 16, 2012, the Division made an oral application to bar Bonnie from presenting an affirmative defense and/or to bar her from presenting any expert testimony on the ground that her failure to attend the pre-trial evaluations with Kaska violated Rule 4:23-2(b). The court issued an oral decision and entered an order "prohibit[ing]" her "from putting forward an affirmative defense." On June 4, 2012, the court denied Bonnie's motion for reconsideration, and in its written statement of reasons, specified that the scope of the sanction was suppression of one expert's rehabilitating testimony and report.

Trial was held on various dates between November 2011 and July 2012. The Division presented the testimony of Division caseworkers, Wanda Hernandez, Heather Tilghman and Sharon Perez; Edward Szteinbaum, M.D.; and Charles Kaska, Psy.D. The evidence presented showed that Bonnie's pattern of resisting treatment for her mental illness, shown in the first guardianship trial, continued unabated. She remained unable to provide stable housing for her children or to parent them.

Heather Tilghman, a Division caseworker, testified that Michael, Darren, and Yanni all have special needs. Michael "is extremely hyperactive and defiant" and has a lot of trouble in school. He was receiving in-home therapy on a weekly basis through Family and Children Early Education Services (FACES), and was in a special classroom in a mainstream school. Nonetheless, his aggression worsened and he was put on medication "for his impulsivity[,] attention and focus." Michael has not lived with Bonnie since her hospitalization in 2007. His behavior issues have presented a problem in securing an appropriate placement. After several changes, he has been with Bonnie's uncle, Carl, and his wife, Megan, since 2012. They want to adopt him, as well as Darren and Yanni, who are also in their care. No updated evaluations were conducted regarding Michael's new placement.

At the time of Darren's birth in February 2010, Bonnie had attended counseling only sporadically and had not attended since December 29, 2009. Darren was removed from Bonnie's care and custody after his birth pursuant to N.J.S.A. 9:6-8.29 and 8.30, because of Bonnie's "unresolved mental health concerns." The Division considered and ruled out Bonnie's cousin as a placement for Darren, placed him with Carl and Megan, and initiated protective services litigation. The court issued an order to show cause, granting the Division interim custody of Darren and on June 29, 2010, Bonnie and Mark waived their rights to a fact-finding hearing.

The Division discovered that Bonnie had given birth shortly after Yanni was born in February 2011. When Division caseworkers went with the police to see Bonnie, she initially denied she had given birth and then lied about the infant's whereabouts. A few hours later, they found Yanni at the home of a non-relative, and he was removed immediately from Bonnie's care and custody pursuant to N.J.S.A. 9:6-8.29 and 8.30, due to Bonnie's long history of unremediated and untreated mental health issues. Yanni was placed with Carl and Megan.

Both Szteinbaum and Kaska performed evaluations of Bonnie in conjunction with the earlier case involving the termination of her parental rights to two children and testified as to their conclusions, which were set forth in our earlier opinion.

In January 2012, Szteinbaum prepared an updated psychological evaluation of Bonnie, based on his review of the relevant documents from 2007 through 2011, such as Bonnie's psychological and bonding evaluations, the Division's contact sheets, the PEI Kids' visitation observations, the full breadth of Trenton Psychiatric Hospital records, letters sent to the Division from Bonnie's relatives, and the court documents from the prior guardianship action, and gave an opinion within a reasonable degree of psychiatric certainty.

According to his January 2012 report and his February 2012 testimony, Szteinbaum's updated opinions and diagnosis did not change from those in his 2010 report. He saw "no significant change or improvement" in Bonnie's mental health, finding that the documents he reviewed showed her "inability to follow up with the recommended psychiatric treatment, including therapy, medication, the treatment program, including one that it was a Spanish-speaking day treatment program," and the "[d]ifficulty that [she] had in visitation with her children," especially because of their special needs. He concluded that Bonnie "wasn't able to parent her children adequately." He also noted that Bonnie still had problems securing stable housing and finances needed for her to adequately care for her children. Szteinbaum opined there would be no improvements in Bonnie's conditions if she did not attend a partial care program, and that if her conditions remained the same, she would be unable to parent any of her children.

Due to defendant's failure to attend any of the scheduled appointments with Kaska, there were no updated bonding evaluations with her and Michael, and no bonding evaluations with her and her two youngest children, Darren and Yanni. As a result, Kaska's testimony was based upon the evaluations he conducted in the earlier termination case.

Bonnie did not testify or present any other witnesses at trial. On July 30, 2012, the court issued an oral opinion and order of judgment, terminating Bonnie's parental rights to Michael, Darren, and Yanni; Fred's parental rights to Michael; and Mark's parental rights to Darren and Yanni.

In her appeal, Bonnie presents the following issues for our consideration:

POINT I

 

THE TRIAL COURT ERRED IN BARRING THE DEFENSE FROM PRESENTING AFFIRMATIVE EVIDENCE.

 

POINT II

 

THE TRIAL COURT ERRED IN CONCLUDING THAT THE BEST INTERESTS OF THE CHILDREN WILL BE SERVED BY TERMINTAING [SIC] B.C.'S PARENTAL RIGHTS.

 

A. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CHILDREN'S SAFETY, HEALTH OR DEVELOPMENT HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THEIR RELATIONSHIP WITH THEIR MOTHER.

 

1. B.C.'S DCPP-ORDERED PSYCHIATRIST FOUND THAT B.C. WAS NOT PSYCHOTIC OR SCHIZOPHRENIC AND DID NOT REQUIRE ANTI-PSYCHOTIC MEDICATION.

 

2. THE OPINIONS OF THE EXPERTS FOR DCPP AND THE LAW GUARDIAN ARE WORTHLESS.

 

3. THE OPINIONS OF KASKA AND SZTEINBAUM ARE INCONSISTENT WITH THE VIEWS OF DEFENSE EXPERTS AND A DCPP EXPERT.

 

4. EVEN IF DCPP HAD PROVEN CLEARLY AND CONVINCINGLY THAT B.C. SUFFERED FROM A MENTAL ILLNESS, WHICH IT DID NOT, THAT FACT WOULD NOT JUSTIFY TERMINATION OF B.C.'S PARENTAL RIGHTS.

 

5. THE ALLEGED FIRE DOES NOT SATISFY DCPP'S BURDEN OF PROVING HARM TO THE CHILDREN, CLEARLY AND CONVINCINGLY, AS DCPP FAILED TO EVEN PROVE THAT THE FIRE OCCURRED.

 

6. DCPP RELIED UPON INADMISSIBLE RECORDS IN ATTEMPTING TO SATISFY ITS BURDEN PURSUANT TO THIS PRONG.

 

B. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT B.C. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER CHILDREN.

 

C. THE STATE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT DCPP MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP B.C. CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME.

 

D. TERMINATION OF B.C.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

Following our review of the record and the applicable legal principles, we conclude that none of these arguments have merit.

I

We first address Bonnie's argument that the trial court erred by sanctioning the defense under Rule 4:23-2(b) and barring her from presenting her expert reports and testimony in her defense. She claims this sanction was unreasonably and inappropriately levied against her because the Division did not prove she had violated any order or letter requiring her to attend any updated evaluations. We disagree.

Rule 4:23-2(b), which is made applicable to the Family Part by Rule 5:1-1, states in pertinent part:

If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

 

. . . .

 

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence[.]

 

[R. 4:23-2(b).]

 

This rule provides a trial court with broad discretion to impose sanctions for a breach of discovery rules, Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.), certif. denied, 170 N.J. 210 (2001), provided that the sanctions imposed for such non-compliance are "just and reasonable in the circumstances." N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 170-71 (App. Div. 2012) (quoting Il Grande v. DiBenedetto, 366 N.J. Super. 597, 621 (App. Div. 2004)). The assessment of an appropriate sanction for the violation of an order requires consideration of "a number of factors, including whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree." Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005).

The sanction imposed here precluded Bonnie from presenting the very type of evidence she denied to the Division through her failures to comply with court orders. Bonnie's repeated failures to attend court-ordered evaluations, despite receiving notice of the evaluation dates and the consequences for failing to attend, support the conclusion that she was acting willfully in failing to comply. Moreover, her failures thwarted the Division's efforts to obtain updated evidence relevant to its burden to satisfy the four statutory prongs. The sanction imposed was harsh, but it would be unreasonable to permit a defendant to cripple the Division's efforts to prove its case and yet present evidence to rebut proofs she had endeavored to weaken through her lack of cooperation.

II

Although the Division was hampered in its efforts to secure updated evaluations, the evidence presented was sufficient to satisfy its burden under N.J.S.A. 30:4C-15.1(a). The trial court carefully considered each of the statutory prongs and cited adequate, substantial evidence in the record to support its conclusion that each of the prongs had been proven by clear and convincing evidence.

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record," the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding."). The family court's decision to terminate parental rights will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). Because we find that Judge Blackburn's findings are supported by adequate, substantial, and credible evidence in the record, we affirm for the reasons set forth in her extensive oral decision.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 All names used are fictitious.

3 In affirming the termination, we further found alternatives to termination were considered, and that termination would not do more harm than good.

4 Michael's father, defendant F.E. (Fred), voluntarily agreed to relinquish his parental rights to Michael in an "identified surrender" to N.R. (Nina), and her husband, J.R. (Joseph). However, Fred's parental rights were reinstated after the Division removed Michael from Nina and Joseph, and then placed him with a relative resource family, Nina's sister, M.C. (Megan), and her husband, Bonnie's uncle, C.C. (Carl). The trial court's decision reflects that Fred returned to court thereafter and voluntarily submitted a "general surrender" of his parental rights to Michael. He has not appealed from the order terminating his parental rights. Defendant M.T.Z. (Mark), the father of Darren and Yanni, did not appear at trial but was represented by counsel. He has not appealed from the termination of his parental rights.

5 Charles Kaska, Psy.D., a forensic psychologist, performed evaluations and provided testimony in the earlier termination case.