NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.P.

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NOT FOR PUBLICATION WITHOUT THE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

CHILD PROTECTION AND

PERMANENCY,

Plaintiff-Respondent,

v.

C.P.,

Defendant-Appellant.

_____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.P.,

a minor.

_____________________________

October 1, 2014

 

Submitted September 10, 2014 Decided

Before Judges Ashrafi, Kennedy, and O'Connor.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-27-13.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia O'Dowd, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother C.P. appeals from the judgment of the Family Part terminating her parental rights to her youngest child. Defendant contends the Family Part erroneously found that no alternative placement was available for the boy, failed to appoint a different attorney for her, and held her in contempt without adequate evidence of misconduct in the courtroom. We do not find merit in any of these contentions and affirm the judgment and contempt order.

I.

The boy was born in April 2009. Defendant is also the biological mother of another son born in 1999 and a daughter born in 2004. The two older children are in the custody of relatives and are not involved in this case. Also, the father of the boy who is the subject of this appeal was not located, and the Family Part terminated his parental rights by default judgment.

The Division of Child Protection and Permanency ("the Division"), then known as the Division of Youth and Family Services or DYFS, first became involved with defendant and her children in 1999 at the time the oldest child was born. The hospital notified the Division that defendant and the baby showed evidence of exposure to illegal drugs. The Division placed that baby with paternal relatives in Connecticut, and he has not been in defendant's custody since then.

On December 12, 2008, defendant, then pregnant with the child that is the subject of this appeal, went to St. Joseph's Hospital in Paterson with her four-year-old daughter and told the staff she was using a large amount of heroin each day. Before receiving medical care, defendant left the hospital. When the Division found defendant several days later, she said she had been using heroin "on and off" for eleven years, and she admitted using about fifteen bags of heroin every day for the prior four months.

The Division removed defendant's daughter from her custody, and the girl was eventually placed with defendant's father. About a month later, the girl was placed with her biological father, and she has remained in his custody since that time. Meanwhile, the Division arranged a substance abuse assessment of defendant at the Paterson Counseling Center. She completed the assessment on January 6, 2009.

During her pregnancy, defendant tested positive three times for opiates. When she gave birth to her youngest child at St. Joseph's Hospital, neither defendant nor the boy tested positive for illicit drugs. Nevertheless, the Division placed the child in protective custody because of defendant's admitted heavy use of heroin and lack of stable housing.

In proceedings initiated by the Division and in which the divorced maternal grandparents participated, the Family Part granted custody of the child to the Division and ordered that he be placed temporarily with the grandfather. The parties then agreed that the child would be placed with his grandmother. Defendant was granted supervised bi-weekly visitation, and she was referred for treatment at the Paterson Counseling Center, where she received individual counseling, parenting classes, and drug screens.

On June 24, 2009, the Division discussed with the grandmother whether she would be willing to adopt the boy, then two months old. She said she was an "old woman" and could not agree to adopt a baby. On August 20, 2009, during an internal review conference, the grandmother "reluctantly" committed to long-term placement of the child with her and even adoption if defendant was unable to be reunited with him.

In October 2009, defendant missed an appointment for a psychological evaluation arranged by the Division. She missed another appointment in November, but finally attended her psychological evaluation with Dr. Robert Kanen on November 25, 2009. Based on defendant's lengthy history of substance abuse, Dr. Kanen concluded that she had to be off illegal drugs and methadone for at least one to two years before her children could be safely returned to her care.

A permanency hearing was held in the Family Part on April 8, 2010. The court found appropriate the Division's permanency goal to return the child to defendant. Following a compliance review hearing on July 19, 2010, the child was returned to the physical and legal custody of defendant, since defendant was then compliant in counseling and weaning off methadone. The maternal grandparents also became licensed foster parents to ensure that they were available to care for the child if circumstances regressed.

Defendant did not stay off drugs. Less than a year later, on May 20, 2011, defendant tested positive for benzodiazepines and methadone. Also, on July 18, 2011, the Division received a referral claiming defendant was smoking marijuana while caring for the child. The Division scheduled substance abuse evaluations on three dates in July and August, but defendant failed to attend.

On November 22, 2011, the police responded to a domestic violence incident at the attached residences of defendant and the maternal grandfather. Defendant reported that the grandfather placed his hands around defendant's throat and threatened to kill her. Defendant also reported that the grandfather's wife pushed her while she was holding the child. The grandfather was arrested and charged with assault. Although the charges were later dropped, a no-contact order was issued against the grandfather with respect to defendant and her children. The Division referred defendant to the domestic violence liaison, and a safety plan was created stipulating that defendant would remain with the grandmother until she could secure her own stable housing.

A few months later, in March 2012, the Division received a referral that defendant was "staying on the streets" and using crack-cocaine. On March 7, 2012, the Division removed the boy from defendant's care after substantiating that defendant had failed to provide a safe and stable home for the child.

During the removal, the Division asked the grandmother if she would consider being a placement option for the child, but she refused. The grandfather was not asked at that time whether he would consider caring for the child. Also in March 2012, the grandmother obtained a restraining order against defendant because defendant had broken into her home and attempted to steal clothing. The Division sent the grandmother a letter ruling her out as a placement option for her grandson, and informing her of a right to appeal the Division's decision. The child was placed with a non-relative foster family.

On March 27, 2012, defendant agreed to go to Straight and Narrow for detoxification, and then remain in a long-term residential drug treatment program at that facility. Defendant did not enter and complete the program. She was offered a bed but she refused, allegedly on the ground that Straight and Narrow was not offering her a "Mommy-and-Me" program.

On May 21, 2012, defendant asked the Division to consider the grandfather as a placement option. The Division told defendant it had considered the grandfather, but his foster home license had been revoked because of the domestic violence case. On June 20, 2012, defendant provided the necessary certificates to the Division to re-certify the grandfather's home. The Division then had difficulty contacting the grandfather and otherwise waited until it could receive and review police reports of the domestic violence incident of November 2011.

In June 2012, defendant failed to attend two appointments for a psychiatric evaluation the Division had arranged for her. She never completed a psychiatric evaluation.

On June 26, 2012, a Title Nine fact-finding hearing was conducted, following which the court found defendant abused or neglected her son because she failed to provide appropriate and stable housing and repeatedly failed to comply with substance abuse assessments and treatment. Defendant was discharged from the Division's substance abuse initiative because of her non-compliance.

Over the next several months, the Division continued to consider the grandfather as a placement for the child, but it remained concerned about his domestic violence history and frequent use of alcohol. It also learned that his wife was opposed to accepting the child into their home for a sustained period of time.

On September 13, 2012, defendant was arrested and charged with possession of cocaine and prescription drugs. She was incarcerated for three days and then released.

On September 19, 2012, the Division sent the grandfather a rule-out letter indicating that the child would not be placed in his home. The child was thriving in his foster home, and the grandfather had not adequately communicated with the Division as a reliable alternative placement. The letter advised the grandfather that he could appeal the decision or, at a minimum, discuss it further with the Division. The grandfather neither appealed nor initiated further discussion at that time.

On November 8, 2012, the Family Part approved a change in the Division's permanency goal to termination of defendant's parental rights followed by adoption of the child. The court instructed the Division to ensure that the maternal grandparents and defendant's ex-boyfriend were not interested in being resource placements for the child. On November 21, 2012, the Division spoke to all three individuals. The grandmother said she was not financially able to care for the child. The ex-boyfriend said he was homeless and could not take the child. The grandfather requested visitation with the child but did not express any desire to adopt him or to provide a permanent placement for the child.

On December 14, 2012, the Division filed an order to show cause and complaint for guardianship of the child. The grandfather was present in the courtroom on the return date of the order to show cause, and the following exchange took place

JUDGE: What is your position with respect to your desire to adopt [the child]?

GRANDFATHER: I am presently talking with my wife. We would rather be caretaker to him until my daughter completes all of the information that she has to complete.

. . . .

JUDGE: You are not in a position, you don't feel you're in a position, at least at this point as we speak today, to be able to adopt him?

GRANDFATHER: No.

At a case management conference on February 11, 2013, defendant requested that the court appoint a different attorney to represent her for the guardianship trial from the one who had represented her in prior proceedings. The court indicated that a notation would be made on the form used for appointment of an attorney that the Public Defender's Office should not assign the same pool attorney. Nevertheless, for reasons that are not revealed to us, the Public Defender's Office appointed the same attorney to represent defendant for the guardianship case.

In March 2013, defendant tested positive for opiates and buprenorphine. A substance abuse assessment concluded she should attend an intensive outpatient program. She was referred to the outpatient program at Eva's Village but did not attend the intake appointment.

On May 22, 2013, Dr. Eric Kirschner performed a bonding evaluation between the child and his foster mother. Dr. Kirschner was also scheduled to do a bonding evaluation with defendant, but she missed the appointment. The foster mother made it clear she wanted to adopt the child. Dr. Kirschner found that the boy referred to his foster mother as "mom," which indicated that he viewed her as a psychological parent. Dr. Kirschner found that, if removed from the foster mother's care, the child would suffer psychological harm, including long-term impairment to his self-esteem, sense of security, and capacity to trust and attach to others.

At a case management conference on June 19, 2013, defendant requested that her assigned counsel be relieved from representing her. After determining that defendant did not intend to hire her own private attorney, the court denied the application because the trial date had been set and the court believed it was important to adjudicate the status of the parental relationship.

On July 26, 2013, the Division again conducted an internal review to discuss the child's placement, and it again ruled out the grandfather.

On August 9, 2013, defendant finally attended a bonding and psychological evaluation with Dr. Kirschner. Defendant, then thirty-five years old, admitted to Dr. Kirschner that she had been using heroin since the age of seventeen or eighteen. She also reported being unemployed, although she worked as a bartender in April 2013 notwithstanding recommendations that she not work in that kind of job because of her substance abuse history. Psychological testing results showed that defendant was slightly depressed, possibly schizoid, and very anti-social. According to Dr. Kirschner, she had difficulty recognizing and responding to the needs of others.

In the bonding evaluation, Dr. Kirschner observed that the boy was attached to defendant, calling defendant "mommy" and hugging her. But Dr. Kirschner concluded that the child's bond with his foster mother was as strong or stronger, and that the foster mother would be able to mitigate the harm if the boy's relationship with defendant were to be terminated. On the other hand, defendant would not be able to do the same if the child were to be separated from his foster family.

Defendant was incarcerated at the Morris County Jail in May and June 2013 on charges of contempt. In August 2013, defendant was arrested and incarcerated in Bergen County on drug charges. She remained in custody at the time of the guardianship trial, which started on September 18, 2013, but she was present in court with her attorney. The court heard testimony from two Division caseworkers and Dr. Kirschner. Neither the law guardian for the child nor defendant called any witnesses or presented any evidence. At the end of the first trial day, defendant interrupted the proceedings, cursed loudly in the courtroom, and argued with the judge. The judge found her in contempt and, the next morning, imposed a fine of $250 after hearing argument from defendant's attorney.

On October 23, 2013, the judge stated his decision orally with respect to termination of defendant's parental rights. He found the Division had satisfied by clear and convincing evidence the statutory four-prong "best interest" test.1

As to the first prong, the court found the child's safety, health, and development had been endangered by the parental relationship because of defendant's continuing drug use, unstable housing, and overall unhealthy lifestyle. As to the second prong, the court found defendant was unable or unwilling to eliminate the harm to the child because she had repeatedly tested positive for drugs, failed to follow through with referrals for substance abuse treatment, and continued to lack housing and employment. Citing Dr. Kirschner's testimony, the court found defendant is unlikely to change in the foreseeable future.

As to the third prong, the court found the Division had made substantial efforts to offer services for defendant, such as the substance abuse assessments, the regular drug testing, counseling at Paterson Counseling Center, Straight and Narrow, and Eva's Village, as well as other referrals. Additionally, the court found the Division met its burden to explore placement with relatives as an alternative to termination of defendant's parental rights. As to the fourth prong, the court considered Dr. Kirschner's testimony and found that termination of defendant's parental rights would not do more harm than good.

The court entered judgment terminating defendant's parental rights.

II.

As an appellate court, we do not weigh the evidence as if we must make an initial decision. We defer to the trial court's findings of fact and conclusions of law that are supported by adequate, substantial, and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We accord deference to the trial judge because he had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).

In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the Family Part's conclusions were not wide of the mark but well-supported by the evidence the Division presented.

Defendant does not challenge the Family Part's findings as to prongs one, two, and four of the best interest test, or as to the first part of prong three requiring that the Division make reasonable efforts to assist defendant in correcting her shortcomings as a parent. Rather, she contends only that the Division failed to consider placement of the child with his grandfather, thus failing to prove by clear and convincing evidence that there was no other alternative to termination of her parental rights. She contends the child's grandfather was available, but the Division failed to return his phone calls and delayed approving him as a caretaker although his foster parent license was reinstated.

Under the third prong, the Division must show that it "has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The Division may not "embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). An important objective in a guardianship case is "prompt identification of relatives and notice to them of the results of the investigation and the potential for termination if the child remains in foster care." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). The Division may not ignore a relative's timely application for placement and "must perform a reasonable investigation of such relatives that is fair, but also sensitive to the passage of time and the child's critical need for finality and permanency." Id. at 87. Additionally, a family member who has been ruled out as a placement option has the right to pursue an administrative appeal of that decision through the dispositional hearing process of N.J.A.C. 10:120A-3.2.

The Division ruled out three potential placements, the two grandparents and defendant's ex-boyfriend. Two of them expressly declined to take the child, and the grandfather did not actively pursue placement of the child with him and did not administratively appeal the Division's decision to rule him out. He also did not testify at the guardianship trial to proclaim his availability as an alternative placement.

The Division had explored the possibility of placing the child with his grandfather from the time of his removal on March 7, 2012, until it issued a rule-out letter September 19, 2012. Although the Division had temporarily placed the boy with the grandfather immediately after his birth in 2009, it did not favor permanent placement with him because he had engaged in an act of domestic violence, he drank alcohol frequently, and his wife was not desirous of having the child in their home. The grandfather had weekly supervised visits with the child beginning in November 2012, and was apparently satisfied with that relationship since he did not contact the Division to challenge its decision to rule him out.

In order to clear up any doubt, the Family Part judge asked the grandfather in December 2012 if he was interested in adopting the child, to which the grandfather responded he was not. It appears that the grandfather was willing to take the child temporarily with an unrealistic expectation that defendant would become capable of caring for him in the near future, but that he did not have a desire to be a permanent caretaker for the child. In fact, the prospects of defendant's rehabilitation and her becoming a viable caretaker were not promising. The child's need for permanency, see N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510-11 (2004), and the potential of gaining a stable home with the foster family superseded the importance of temporary relative placement with the grandfather.

The court did not err in finding clear and convincing evidence that the Division proved all aspects of the third prong of the best interest test as well as all other prongs of N.J.S.A. 30:4C-15.1(a).

III.

Defendant argues the trial court's denial of her request for a different pool attorney and to relieve her assigned counsel deprived her of a fair trial. We find no reversible error in the Family Part's rulings.

Due process protection of article I, paragraph 1 of the New Jersey Constitution "serves as a bulwark against the loss of parental rights without counsel being afforded." N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007); see Pasqua v. Council, 186 N.J. 127, 147 n.5 (2006); Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975). In cases where a defendant is indigent, N.J.S.A. 30:4C-15.4(a) provides that the court shall appoint the Office of the Public Defender to represent the parent. Further, "[i]f the parent was previously represented by counsel from the Office of the Public Defender . . . on behalf of the same child, the same counsel, to the extent practicable, shall continue to represent the parent in the termination of parental rights action." N.J.S.A. 30:4C-15.4(a).

An indigent person who has received the services of a pool attorney assigned by the Office of the Public Defender does not enjoy a right to choose a different assigned counsel. See State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012), aff'd, 216 N.J. 393 (2014); State v. Williams, 404 N.J. Super. 147, 170 (App. Div. 2008), certif. denied, 201 N.J. 240 (2010). A defendant may, of course, retain private counsel. But if a defendant seeks to change her attorney at a time that would cause delay or calendar problems, a judge's decision to deny substitution of counsel is not an abuse of discretion. See State v. Furguson, 198 N.J. Super. 395, 407 (App. Div.), certif. denied, 101 N.J. 266 (1985).

At a case management conference on June 19, 2013, defendant requested that her assigned counsel be relieved. Defendant stated she was unhappy with the way the attorney had represented her during her daughter's protective services case three years earlier. In that case, defendant discharged the attorney and retained private counsel. When the court asked defendant in this case if she intended to hire a private attorney, she responded no.

Before the guardianship trial began, the assigned attorney informed the court he was ready, willing, and able to represent defendant. The attorney stated there was no conflict in his representation of defendant. He explained that he represented defendant in both earlier protective services cases pertaining to her two younger children, and had represented her since the beginning of this guardianship case. He revealed that it was difficult to contact defendant and that she never returned his calls. Because of defendant's failure to communicate with him, he could not retain an expert to evaluate her and was otherwise limited in presenting an affirmative defense case.

The court directed that the attorney continue to represent defendant at the guardianship trial, stating that he was well-qualified and knew the evidence, and the child's interest in permanency required that there not be delay in determining the status of the parental relationship and the child's future prospects. In these circumstances, defendant was not denied the right to a fair trial when the judge denied her request to relieve her attorney.

IV.

Defendant also challenges the Family Part's order finding her in contempt and imposing a sanction of $250.

Defendant was transported from the Bergen County Jail to Paterson for the guardianship trial. After the first day of trial, the judge signed an order, over defense counsel's objections, remanding defendant to the Passaic County Jail overnight so there would be no delay in resuming the trial the following day.

The following exchange then took place in the courtroom

JUDGE: I'm going to remand to the Passaic County Jail so that she will be

DEFENDANT: This is fucking bullshit.

JUDGE: local and we can start at 9:00. All right. I have to warn you, Miss

DEFENDANT: Don't warn me of nothing.

JUDGE: I'm warning you that

DEFENDANT: I don't want to be in this fucking county.

JUDGE: Okay. You may I may have to just a second, Trenice, please. I may consider conducting a contempt hearing

DEFENDANT: I don't care.

JUDGE: because of your

DEFENSE COUNSEL: Shh.

JUDGE: outbursts.

DEFENDANT: I don't care.

DEFENSE COUNSEL: Shh.

JUDGE: In which event

DEFENDANT: No.

DEFENSE COUNSEL: Shh.

DEFENDANT: I don't want to be in this county.

JUDGE: In which event, you might be fined, imprisoned, or both.

DEFENDANT: I don't care. I don't want to be in this freaking county. You don't understand.

The judge started the second day of trial by conducting a hearing on whether he should impose a sanction on defendant for contempt because of her outburst. After considering defense counsel's arguments, the judge penalized defendant $250 for cursing, swearing, and interfering with the court proceedings.

The court's power to punish for contempt extends to "[d]isobedience or resistance by any court officer, or by any party, juror, witness or any person whatsoever to any lawful writ, process, judgment, order or command of the court." N.J.S.A. 2A:10-1. "The phrase 'contempt power' really means the power to punish, and in our society that means the power to fine or imprison one who has violated judicial authority." In re Daniels, 118 N.J. 51, 59, cert. denied sub nom. Daniels v. Superior Court of N.J., Appellate Div., 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990).

A judge conducting a judicial proceeding may adjudicate contempt summarily, without an order to show cause, if the following five conditions are met

(a) the conduct has obstructed, or if continued would obstruct, the proceeding;

(b) the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;

(c) the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;

(d) immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and

(e) the judge has afforded the alleged contemnor an immediate opportunity to respond.

[R. 1:10-1.]

In this case, all five elements were met. Frustrated with the judge's decision to remand her to the Passaic County Jail, defendant interrupted the proceeding and used profanity to object to the judge's ruling. The judge warned defendant, but she replied "I don't care." Defendant cursed twice in the courtroom and interrupted the judge six times while the judge was speaking. This conduct proved the first and second elements of Rule 1:10-1.

Defendant was not only warned by the judge but urged by her own attorney to remain quiet. Defendant's disregard of the warnings demonstrated that her contempt was willful.

Next, although defendant's outbursts occurred at the end of the first day of trial, immediate adjudication was necessary for the court to gain control over the proceedings and complete the day's activity.

Last, R. 1:10-1(e) requires the court to afford the contemnor an immediate opportunity to respond to the contempt charge. Defendant argues that the judge did not provide such an opportunity. Although the proceedings the next morning were with reference to "sentencing," it is not the actual language that the court uses that controls application of the rule, but whether the court actually gave counsel an opportunity to respond to a finding of contempt. Amoresano v. Laufgas, 171 N.J. 532, 554 (2002). Here, the judge gave defendant's attorney an opportunity to address the court and argue as to why his client should not be held in contempt.

The proceedings before the court's final ruling and imposition of a monetary sanction satisfied all elements of the rule for a finding of contempt.

Affirmed.

1 N.J.S.A. 30:4C-15.1(a) provides that parental rights may be terminated when

(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 for 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.