NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2069-06T42069-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF R.B., Jr.,

A Minor.

 
________________________________

Submitted May 30, 2007 - Decided July 3, 2007

Before Judges Weissbard and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-70-06.

Aronsohn, Weiner & Salerno, attorneys for appellant D.G. (Kevin L. Bremer, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Megan J. Harris, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for R.B., Jr., a minor (Cynthia McCulloch, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, D.G., who is the mother of R.B., born February 18, 2004, appeals from the Family Part judgment, entered on October 31, 2006, which terminated her parental rights. By that same order, the Division of Youth and Family Services (DYFS or Division) was awarded guardianship of R.B. for the purposes of consenting to adoption. R.B.'s father has not appealed the default judgment terminating his parental rights, entered on June 2, 2006.

On appeal, D.G. argues that the trial judge's determination was against the weight of the evidence, and that DYFS failed to search for relatives who could provide for and support R.B., as required by N.J.S.A. 30:4C-12.1. We disagree with these contentions and affirm the Family Part judgment.

Parents have a constitutionally protected fundamental liberty interest in raising their children, which is protected by both the Federal Constitution and the New Jersey Constitution. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 109 (App. Div.), certif. denied, 180 N.J. 456 (2004). Yet, the exercise of parental rights is not absolute. The State holds "a parens patriae responsibility to protect children from the probability of serious physical, emotional or psychological harm resulting from the action or inaction of their parents." Id. at 110; see also In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Our Legislature has recognized this responsibility, and has stated that "the health and safety of the child shall be the State's paramount concern when making a decision on whether [] it is in [a] child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). This "best interests standard," initially formulated by the Court in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), is determined by a four-pronged statutory test, set forth in N.J.S.A. 30:4C-15.1(a), which requires the Division to prove by clear and convincing evidence that:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1(a).]

The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap one another to provide a standard that identifies the child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved in determining parental fitness are "extremely fact sensitive" and require "particularized evidence that addresses the specific circumstances" present in each case. Id. at 348 (quoting In re Adoption of Child by L.A.S., 134 N.J. 127, 139 (1993)). The burden rests on the Division to demonstrate by clear and convincing evidence that the serious risk of lasting harm to the child is so severe as to require the severance of parental ties. Ibid.; see also N.J.S.A. 30:4C-1(a).

The Division first became involved with D.G. and her children on April 15, 2004, when she brought two-month-old R.B. to Meadowlands Hospital. Hospital personnel called the Division after D.G. became defensive and refused to provide necessary personal information, including her address and social security number. The Division learned that D.G. and her three children, R.B., K.G., and K.M.G., were living in a friend's trailer without electricity and sufficient sleeping quarters. The Division arranged for the family to stay in a motel, temporarily. DYFS referred D.G. to Family Preservation Services for medical and housing assistance. D.G. secured a separate residence by May 5, 2004. The Division remained involved with the family because of the housing instability and because D.G. had stated she did not want R.B. immunized for fear that she would contract an illness from caring for the vaccinated child.

In July 2004, D.G. left numerous messages for the DYFS caseworker, stating that her neighbors were threatening to report her to DYFS, and that her estranged husband, J.G., was going to kidnap her two older children. On August 6, 2004, D.G. was referred for a psychological evaluation based on her comments regarding her neighbors, and her estranged husband's alleged intentions to harm her. D.G. declined. On August 10, 2004, D.G. left a voicemail message accusing the DYFS caseworker of making threats against her, and she later told another agency that she intended to "sue" the Division because it had made terroristic threats.

On October 6, 2004, the Paramus Police Department contacted the Division, requesting a welfare check after an Administrative Law Judge (ALJ) called them and reported that D.G. had appeared in court with the three children regarding a welfare application, but she had refused to provide her address and telephone number. As a result, D.G.'s request for assistance was declined; she became agitated and stated to the ALJ that the children "would starve." When a DYFS caseworker went to her home, D.G. refused to open the door, became increasingly irrational, was "screaming and yelling out the window," and accused the caseworker of making threats and of having an affair with her estranged husband, who resided in California. The police and a psychiatric screener arrived to assess the situation. D.G. allowed her neighbor into her home. The neighbor attempted to convince D.G. to permit the children to leave so that D.G. could go to the hospital. The neighbor reported to police that D.G. told her she would "kill herself and her children" before allowing anyone to take the children from her. The police forced entry, secured the children, and took D.G. to the Bergen Regional Medical Center (BRMC) for psychiatric evaluation.

DYFS executed an emergency removal of the three children pursuant to N.J.S.A. 9:6-8.29. K.G. and K.M.G. ultimately were placed in the custody of their biological father, J.G., and they now reside in California. R.B. remains in his initial October 6, 2004 foster home placement.

D.G. remained at BRMC for ten days. She denied that she stated she would kill herself or harm her children, and denied current suicidal ideations. BRMC developed D.G.'s treatment plan for depressive disorder and active paranoid thoughts. Her discharge diagnosis was "delusional disorder persecutory type." D.G. declined the recommended medication while hospitalized, and refused to engage in follow-up outpatient treatment. She also refused to participate in a second psychological evaluation scheduled by DYFS on October 18, 2004.

D.G. agreed to participate in a psychological evaluation by James Ferretti, Ph.D. on December 14, 2004. Dr. Ferretti diagnosed D.G. with delusional disorder and recommended psychotherapy and appropriate psychotropic medication. D.G. did not agree therapy or medication were necessary. D.G. scheduled her own expert evaluation with Kenneth M. Schulman, Ph.D., which she attended on December 16 and 20, 2004. Dr. Schulman's diagnosis, as summarized as by the trial judge, was "Adjustment Disorder, with Mixed Emotional Features" and "Narcissistic Personality Disorder with Histrionic and Obsessive Compulsive Personality Traits."

On January 19, 2005, D.G. discontinued the supervised visitation with R.B., which had been held at the Division's office. DYFS then arranged for therapeutic visitations between D.G. and R.B. through the Family Enrichment Program (FEP). D.G. missed the FEP intake sessions scheduled for February 10 and March 24, 2005. Thereafter, she ceased contact with DYFS and suspended visits with R.B. D.G. reestablished communication with the Division on August 13, 2005. FEP-supervised therapeutic visitations between D.G. and R.B. began on August 31, 2005.

The Division filed its complaint to terminate parental rights on December 8, 2005. Trial was held on October 10, 2006. Numerous documents were marked into evidence, including the three reports of the psychologists who examined D.G. DYFS presented testimony from its two caseworkers and its expert, Frank Dyer, Ph.D. D.G. testified on her own behalf. She did not present expert testimony.

Dr. Dyer performed an individual psychological examination of D.G., and bonding assessments between R.B. and D.G., and R.B. and his foster parents. Dr. Dyer testified that during the psychological examination, D.G.

related in an appropriate manner . . . . She displayed normal mood [and] normal emotional responsiveness. She did not display a thought disorder. . . . She is poised, she's articulate[,] she's highly intelligent, and she is capable of impressing an interviewer very positively, so long as the discussion remains confined to issues that are not emotionally charged.

However, D.G.'s explanations of various events displayed what Dr. Dyer diagnosed as "delusional disorder." Dr. Dyer explained delusional disorder is characterized by persistent, unshakable, false beliefs about the situations . . . involving interpersonal reality" which do not "rest on any type of realistic foundation, but rather . . . result from the individual's concerns, fears, fantasies and projections." Dr. Dyer stated:

[T]he overall tenor of [D.G.'s] remarks in regard to the reasons behind the removal of her children was that of an individual who is terrified because of a firm and unshakable belief that she is being harassed, persecuted and physically threatened by other individuals.

D.G.'s account of specific events illustrates this point. For example, D.G. continually asserted that "Jennifer," a DYFS worker, had maintained a sexual liaison with D.G.'s estranged husband, J.G., since 1994, and engaged in nefarious activities to harm her; D.G. "extremely sanitized" the reason for her ten-day admission to BRMC, suggesting she would have been released immediately, but for an administrative problem; D.G. maintained that a friend named "Carl," who lives in Connecticut, was involved in a conspiracy with J.G. and Jennifer to spy on her, and he had stolen items from her home; and D.G. refused to release her California mental health records because she insisted J.G.'s girlfriend had used D.G.'s identity to obtain mental health care.

Dr. Dyer further explained that D.G. has no insight into her psychological problems because she distrusted all treatment agencies, and does not view herself as being in need of any mental health services, all of which would "interfere with her ability to provide a safe, stable, adequately structured, adequately nurturing, adequately stimulating home environment for any child in her care."

During the bonding assessment, although D.G. interacted appropriately with R.B., and R.B. displayed positive interactions with D.G., Dr. Dyer expressed that D.G.'s mental disorder affects her parenting capacity. "[T]he danger to the child [is] presented by [D.G.'s] tendency to enter regressive psychological states when she feels threatened, and becomes delusional and experiences compromised judgment and impulse control." Dr. Dyer expressed no concerns about the adequacy of the foster parents to serve as R.B.'s caretakers and surrogate parents if R.B. were adopted. Dr. Dyer opined that there would be no impact if R.B. had no further contact with D.G.; however, if R.B. were removed from the foster parent's care, he "would be vulnerable to psychopathology in adolescence and adulthood including depression or severe personality disorder if he were to suffer the loss of his central parental love objects, the foster parents." Dr. Dyer's ultimate recommendation was that DYFS continue to pursue foster home adoption for R.B.

With this record, the trial court concluded that DYFS had presented sufficient evidence of parental unfitness and that D.G.'s untreated mental condition interposed a future inability to provide R.B. with an adequately stable and safe home.

Review of a trial court's grant of guardianship is limited. We will not disturb the factual findings of the trial judge unless they are unsupported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

D.G. asserts that no evidence shows she abused or neglected R.B. She also contends the trial court's conclusions relied "excessively and almost exclusively upon" hearsay statements including "reports prepared by mental health professionals that, despite the State's failure to qualify them as experts, were relied upon as such." In this regard, D.G. suggests the Divisions' caseworkers "testified at length about incidents that had allegedly occurred years earlier[,]" making the "verification of the accuracy of the statements [] virtually impossible." Included within these hearsay statements is the alleged statement attributed to D.G. by the unnamed friend who "apparently stated that [D.G.] had threatened to kill herself and her children." D.G. further maintains Dr. Dyer's opinion, that D.G.'s alleged mental health condition endangered R.B.'s safety and health, was improperly based upon hearsay.

As to the first argument, the Supreme Court has recognized that the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999). "However, as a part of its burden of proof, the State must still demonstrate by a preponderance of the competent, material and relevant evidence (N.J.S.A. 9:6-8.46b) the probability of present or future harm." N.J. Div. of Youth & Family Servs. v. S.S., 372 N.J. Super. 13, 24 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005). R.B. was removed from D.G.'s care when he was eight months old. The absence of physical abuse or neglect is not conclusive. "The trial court must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977). Also, the fact that D.G. may be morally blameless, as her mental health disorder prevents her from recognizing the problem and the need for treatment, is unfortunate, but must be considered when determining the child's "best interests."

As to the hearsay nature of the evidence presented, reports by DYFS staff personnel or professional consultants "shall be permitted to [be] submit[ted] into evidence," and "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal. R. 5:12-4(d). It is unchallenged that the consequences of a guardianship hearing significantly impacts a defendant's constitutional rights, which must be safeguarded by the trial court when determining whether DYFS's proofs satisfies its statutory burden by clear and convincing evidence. In this matter, the trial court has properly done so. D.G. was provided, through the discovery process, with all records and reports obtained by the Division. She was afforded the opportunity to obtain an expert. DYFS's testifying expert and caseworkers were subject to cross-examination by counsel assigned to represent D.G. At trial, no objection was lodged to the Division's presentation of its documentary evidence, which included D.G.'s BRMC hospital records, the police reports of the October 6, 2004 incident, and the psychological reports of Drs. Ferretti, Schulman, and Dyer. We determine no error occurred in the admission of the DYFS file and records. See Rule 2:10-2.

We also disagree that the trial court's determinations were solely, or even heavily, bottomed on the reports of Drs. Schulman and Ferretti. While the conclusion reached by these psychologists was recited in the trial judge's opinion, he did not place undue weight on these reports. Dr. Dyer alone presented expert testimony at trial, and it is his diagnosis that the trial court accepted, as shown by the trial judge's statement: "[D.G.] offered no evidence to refute that she suffers from Delusional Disorder, Persecutory Type, that she needs psychotherapy, and that her son, [R.B.] would be at risk of harm if returned to her custody." Similarly, although the trial court's opinion mentions the unnamed neighbor's statement about D.G.'s purported threats to harm herself and the children, these were stated contextually to explain why the police forced entry into D.G's home and why D.G. was taken to BRMC, necessitating the Division's removal of the children. At trial, D.G. provided her explanation of these events, allowing the trial judge to make appropriate credibility determinations. We do not agree that the unnamed neighbor's hearsay statement was pivotal evidence supporting the trial court's conclusion to terminate D.G.'s parental rights.

It is undisputed that Dr. Dyer's expert opinion considered the DYFS file, which included the reports of prior treating physicians and the psychological evaluations of D.G. prepared for the purpose of determining treatment. The facts or data relied upon by Dr. Dyer, however, were the type of records reasonably relied upon by experts in the particular field when forming such opinions. See N.J.R.E. 703. Dr. Dyer additionally conducted his own evaluation and performed individualized psychological testing of D.G. from which he formed his expert opinion. Although he may have considered the results of others, Dr. Dyer's conclusion was formulated and amply supported by his own individual findings of D.G.'s paranoid delusional condition.

D.G. also argues that DYFS failed to search for relatives who could provide care and support for R.B. Both D.G. and R.B.'s putative father was directly questioned and also requested, through correspondence, to provide possible placement resources for R.B. D.G. admitted at trial the she declined to disclose or involve her family; she asserted, however, that she offered R.B.'s paternal grandparents as possible caretakers. The testimony of the DYFS caseworkers contradicted this statement and no case note record was found documenting D.G.'s disclosure of other available relatives. The trial court's determination on this issue was essentially one of credibility. Considering the judge's "feel of the case" based upon his opportunity to see and hear the witnesses, Cesare, supra, 154 N.J. at 412, it will not be disturbed.

We are compelled to conclude that the trial court's findings are supported by substantial credible evidence. We are, therefore, bound as well by the evaluative determinations that D.G. suffered from a mental disorder that would place R.B. at great risk of harm if he were returned to her custody; that the Division had offered services to address this condition and to aid D.G. in overcoming her inability to safely parent R.B.; that D.G. had persistently refused to recognize the need for psychotherapy and, possibly, medication; that the Division had made reasonable efforts to find relatives to care for the child; and that termination of D.G.'s parental rights would not do more harm than good as, with the passage of two years' time, R.B. has developed a bond with his foster family, gaining a sense of permanency, which would cause him significant harm were it lost. See M.M., supra, 189 N.J. at 293.

Affirmed.

 

(continued)

(continued)

16

A-2069-06T4

RECORD IMPOUNDED

July 3, 2007