DIVISION OF YOUTH AND FAMILY SERVICES v. C.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6315-07T46315-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.C. AND R.A.J., JR.,

Minors.

__________________________________

 

Submitted October 1, 2009 - Decided

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-120-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica A. Beke, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors R.C. and R.A.J., Jr. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant C.C. appeals from a June 30, 2008, Family Part order terminating her parental rights to her two children: R.C., a female, born December 9, 2004; and R.A.J., Jr., a male, born December 20, 2006. We affirm.

I.

On September 22, 2006, the Division of Youth and Family Services (Division) filed a complaint for guardianship seeking to terminate the parental rights of C.C. to R.C. The complaint was later amended in early 2008 to also seek termination of C.C.'s parental rights to R.A.J., Jr. The court conducted a trial over four non-consecutive days between March and June 2008. At its conclusion, the court rendered an oral decision, finding by clear and convincing evidence that the Division had proved all four prongs of the best interests standard governing termination of parental rights.

The Division presented its case through several witnesses, including Case Manager Clarastine Akbar; psychologists, Dr. Peter DeNigris and Dr. Elizabeth Smith; and psychiatrist, Dr. Vivian Shnaidman. Dr. Sonia Oquendo testified on behalf of the children. Defendant presented Dr. Arnaldo Apolito, a psychiatrist. No other witnesses were presented on behalf of defendant. The record disclosed that C.C. and R.A.J., Sr. are the biological parents of R.C. and R.A.J., Jr. Both C.C. and R.A.J., Sr. suffer from paranoid schizophrenia. The Division's first involvement with C.C. occurred shortly after R.C.'s birth. At that time C.C. informed the hospital staff that she suffered from schizophrenia, was taking medication and participating in an outpatient mental health program. Dr. Carmelo Pingol of the Mount Carmel Guild Behavioral Healthcare System, where C.C. had been undergoing treatment since 2001, confirmed to the Division that C.C. was diagnosed with chronic paranoid schizophrenia and suggested she "be closely monitored periodically . . . to see if she is taking good care of her child."

Later, on February 22, 2005, Dr. Pingol wrote a letter to the Division explaining that C.C. was compliant with treatment and "psychiatrically stable and . . . fit to care for her child." The Division provided C.C. with homemaker services for the next three months, but terminated the services due to C.C.'s compliance. On May 11, 2005, the Division determined there were no concerns at that time and closed the case.

Over the next several months, the Division received three referrals about C.C. The first referral came from R.C.'s pediatrician, who reported that R.C. exhibited a failure to thrive. He gave C.C. a referral to a nutritionist for three visits, but she only attended one. In response to the pediatrician's report, a Division worker visited C.C.'s home, at which time C.C. agreed to accompany the worker to the emergency room to have R.C. evaluated. Because the emergency room doctor did not have the benefit of medical records that included weight charts and other medical history, the doctor was unable to determine whether R.C. was failing to thrive.

On August 1, 2005, Dr. Pingol wrote to the Division informing it of C.C.'s "worsening agitation and irritability" and suggesting that C.C. could not take care of her child at that time. He also indicated that C.C. did not want to accept treatment recommendations.

The third referral came from another pediatrician four days later. C.C. had taken R.C. to a local clinic where efforts were undertaken to perform blood work because of R.C.'s low weight. The doctor reported that C.C. was hostile, uncooperative, and would not allow lab work needed to diagnose and treat R.C.'s malnutrition. Although loud and abrupt, C.C. eventually agreed to have R.C. treated at a hospital. Once at the hospital, C.C. became loud and hostile, until police and R.A.J., Sr. arrived. A hold was placed upon R.C. that prevented C.C. from removing R.C. from the hospital.

The Division placed R.C. with her paternal grandmother, S.J., on August 12, 2005, which placement was memorialized by a court order dated September 12, 2005. When S.J. passed away on October 31, 2005, R.C. was placed in a foster home until she was placed with her maternal aunt, R.T., in January 2007, where she resided at the time of the trial. Following R.A.J., Jr.'s birth in December 2006, he too was placed with R.T. and remained with her at the time of trial.

Clarastine Akbar testified that the Division provided homemaker services, transportation, a monthly bus card, parenting classes, furniture, a nutritionist, and psychological and bonding evaluations. Akbar explained that C.C. attended a treatment program at Christ Hospital but stopped going to a day program at Mount Carmel Guild. Akbar believed that C.C.'s participation in these programs did not successfully correct her parenting problems and testified that the Division's position was that C.C. could not take care of these children.

Dr. Shnaidman testified that she performed two psychiatric evaluations upon C.C. She indicated that C.C.'s mental health problems began when she was a junior in high school. She diagnosed C.C. as suffering from chronic paranoid schizophrenia and testified that the disorder is chronic and progressive in that the cognitive decline continues throughout time. Dr. Shnaidman opined that C.C. "has not shown an incredibly good response to medication throughout her years of compliance[,] . . . chances are that she will continue to decline cognitively over the years, and that her ability to take care of herself will decline as well."

Dr. Shnaidman also indicated that C.C.'s entire psychiatric treatment is inadequate and that if C.C. were her patient, she would try new generational atypical anti-psychotics and "a day program or a sheltered workshop where she would have constant socialization [and] activities." Ultimately, Dr. Shnaidman opined that in C.C.'s case, "the paranoid schizophrenia specifically affects her ability to parent[,]" and that "[i]n her current state she cannot parent her children."

Dr. DeNigris conducted a psychological evaluation of C.C. as well as bonding evaluations between the children and C.C. and between the children and their maternal relatives. Dr. DeNigris testified that there was no healthy bond between C.C. and the children and that C.C. refused to complete any of the psychological testing. He indicated that a secure, healthy bond existed between the children and their maternal relatives, and if the Division removed the children from their care, the children would suffer emotional, physical or psychological harm. Dr. DeNigris believed that even if C.C. received comprehensive medical treatment, she would be unable to assist the children with recovering from the harm they would experience from their removal from R.T.

Dr. Smith also conducted a psychological evaluation of C.C. as well as bonding evaluations. She too testified that C.C. was uncooperative and refused to take any psychological tests. Dr. Smith opined that "[C.C.'s] reasoning seemed very concrete and childlike, and, of course, most obviously, she appeared to be highly paranoid during my interview." Dr. Smith testified that C.C. "had no insight into her illness and the negative effects it would have on her parenting." After completing the bonding evaluations, Dr. Smith found that R.C. had familiarity and an attachment with C.C. but she did not believe C.C. was R.C.'s primary attachment. She indicated she found that R.A.J., Jr. seemed unresponsive, dull, and did not show any signs of a significant attachment to C.C. She did, however, describe the relationship between the children and their maternal foster parents as a very strong, secure and positive attachment. She noted that R.A.J., Jr. was animated and "in many ways seemed like another child." In her opinion, if the children were separated from their foster parents, there would be both short-term and long-term consequences for the children. Dr. Smith concluded that C.C. would be overwhelmed by the normal stresses of parenting and, even with assistance, would not be able to properly parent the children.

Dr. Oquendo testified that the children are at a higher risk for developing schizophrenia because both of their biological parents are schizophrenic. She explained that "child[ren] with [a] steady and stable home have a better prognosis than [children] that [are] being subjected to changes in care givers or changes in where they live, the school they attend, and the people who are stable in their life." By being raised in a stable environment, Dr. Oquendo believed the children would have a better chance of avoiding the illness. Dr. Oquendo determined that "allowing [C.C.] to care for the children without supervision would expose the children to an unnecessary risk of harm."

The parties stipulated to Dr. Apolito's qualifications as an expert psychiatrist but the Law Guardian objected to his qualifications as an expert in the area of bonding. The court agreed and did not allow Dr. Apolito to testify as an expert in the area of bonding due to his lack of specific knowledge and hands-on experience. After hearing defendant's motion for reconsideration, Judge Davis reiterated that Dr. Apolito was not qualified as an expert in the field of bonding and attachment but believed that:

This [c]ourt, because of his experience certainly as a medical doctor, will not disallow his testimony with regard to his observations that he saw that particular day [he conducted the bonding evaluations]. . . . And certainly it has merit since he is a trained physician and would have, in my opinion, a good eye to see and observe things. However, his conclusions with regard to the bonding must be on a factual basis. It must be taken by the [c]ourt [the] same as a lay-witness would in observing the same things. However, he can certainly testify to what he saw and whether he felt that there was an attachment between these children and their mother and he can testify to the reasons[,] what he saw, the kind of actions and reactions that he may have seen, the kind of body language that he may have seen, but those observations cannot be testified to within a degree of medical certainty.

Dr. Apolito testified that if C.C. remained compliant with her medication regimen and obtained "assistive services," she would be able to care for her children. In addition, Dr. Apolito stated that the bond between C.C. and R.C. was "clear and solid" and that there was a definite bond between C.C. and R.A.J., Jr. because it was "clear that he was comfortable with [C.C.] and he was enjoying her company, [and] enjoying . . . interacting with her." However, Dr. Apolito acknowledged that if C.C. were to become unstable, there "would be a concern as far as her ability to parent her children; no question about it."

At the conclusion of the trial, the court terminated C.C.'s parental rights. In her oral decision placed on the record July 9, 2008, the court found:

With regard to the first prong that the child's health and the child's development have or will be severely impaired by the parental relationship, if continued, I think is best manifested by the first series of allegations that came to the attention of the Division.

. . . .

. . . [C.C.] did in fact pose a serious threat to the safety and the health of her child, [R.C.] This impairment that she suffers, that of paranoid schizophrenia, is ongoing, pervasive, and cannot be cured. It is quite apparent that this child's health was in fact seriously impaired and could have been even more seriously impaired by [C.C.] had the Division not taken charge of the child. There is ample evidence through the various reports of the doctors concerning this situation that [C.C.] did not really understand the reasons for any of the concerns. Her answers on many occasions to the nutrition aspect of the child's diet were vague, unknowing, and, unfortunately, quite ignorant in terms of trying to learn or to discover what is necessary for a child's nutrition. . . . Her paranoia takes over apparently in these situations, and rather than deal with the question at hand, the behavior becomes that of a threatening nature, where she feels strongly that the people who are criticizing her or who are trying to make her understand the needs of the child are simply trying to attack her, take the child away, and she has failed to accept or did fail to accept any of their significant recommendations.

. . . .

The second prong that must be proven is that the parent is unable or unwilling to eliminate the harm that may have been done or would be done in the future and that delaying permanent placement would only add to that harm. . . . [I]t is not an unwillingness of [C.C.] that is apparent, but it is her inability to do so, which is quite clear. Every doctor who has testified or has provided a report in this case has had the same assessment of [C.C.], and that assessment is that her mental problems, the paranoid schizophrenia, is not only pervasive, but is a condition which has highs and lows, where she can comply and can't comply, but, more importantly, that as time goes on very often allows a de-compensation, as opposed to a condition that improves with time.

. . . .

. . . [Since] these children were born of two parents that were diagnosed with paranoid schizophrenia, the . . . probability of these children suffering from this same mental disease at an appropriate age is very high. The only mitigating factor that could help this high resolution would be for them to be brought up in a stable, calm, and nurturing environment. . . . So it is not only the inability that [C.C.] has to abate the situation regarding her own mental illness, but apparently would have no ability whatsoever to maintain a calm, peaceful, and nurturing environment for these children to help them not be subject to this dreadful disease. So it is very clear that the second prong has been met affirmatively and by clear and convincing evidence by the State.

The third prong that must be met is that the State has made diligent efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home, in the first place, and that the [c]ourt has considered alternatives to termination. Services have been provided to [C.C.] from the very onset of her assuming the responsibility of [R.C.] Unfortunately, as indicated before, it is quite clear that no amount of services could cure the problem. . . . At first she was given the homemaker. She did comply. The homemaker did leave. Then we had the series of incidences of the failure to thrive. . . . The State has given her the ability to seek psychiatric help, to be medicated, to deal with her mental illness problems, and everything that could possibly be done under the circumstances, I believe, has been done, but it doesn't appear that it's been to any avail. Every service that was provided was done by the Division in good faith, and, unfortunately, [C.C.] seemed not to either accept it, appreciate it, or be helped by it.

. . . .

The [c]ourt also finds that there really are no other alternatives to termination in this case. The biological father has already surrendered. Certainly under no circumstances could [C.C.] herself take full responsibility for these children by herself, and since we have a -- an excellent family member who is seeking to adopt these children, that that is the one and only plan that can be considered by the [c]ourt.

And the last prong that must be proven is that the termination of the parental rights of the child would not do more harm than good to that child. . . . [T]he latest [bonding evaluations] were quite positive in that the doctors felt that there was sufficient bonding now between the foster parents and [R.C.] and that that bond would be significantly impaired by removing that child at this time. [R.A.J., Jr.] has been with his maternal aunt from birth, so there really has been no significant bonding other than with the foster parents for this child. . . . It is very clear from the testimony of the experts and their reports that continuing this relationship between these children and their maternal aunt in adoption will certainly not do any harm to the children . . . . There has never been an indication that the foster parents would disallow [C.C.] from seeing the child or the children, and so any issue that could occur with regard to the harm aspect that could be involved with taking the children from their natural mother is really moot.

. . . I find that [Dr. Apolito's] testimony is not persuasive, but that the testimony of the other experts, Dr. Smith, Dr. Shnaidman, the reports of Dr. DeNigris, and the report of Dr. Kanen were definitely persuasive, and the [c]ourt must find in favor of the State, terminate the parental rights of [C.C.], and allow the case to go its normal course towards adoption.

II.

On appeal, C.C. raises the following points for our consideration:

POINT I

THE DIVISION FAILED TO PROVE THE FIRST PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE IT FAILED TO DEMONSTRATE THAT C.C. WOULD CONTINUE TO ENDANGER THE HEALTH AND WELFARE OF R.C. AND R.A.J., JR.

POINT II

THE DIVISION FAILED TO PROVE THE SECOND PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE C.C. CLEARLY DEMONSTRATED HER WILLINGNESS TO REMOVE ANY REAL OR PERCEIVED HARM TO R.C. AND R.A.J., JR.

POINT III

THE DIVISION FAILED TO PROVE THE THIRD PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO SUPPORT AND EFFECT THE UNIFICATION OF C.C. WITH R.C. AND R.A.J., JR.

POINT IV

THE DIVISION FAILED TO PROVE THE FOURTH PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1a BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD TO R.C. AND R.A.J., JR.

POINT V

IT WAS ERROR FOR THE TRIAL COURT TO DISQUALIFY ARNALDO APOLITO, M.D. AS AN EXPERT IN BONDING THEORY.

The scope of our review of a trial judge's findings of fact is a limited one. Those findings cannot be upset unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974). We find no error in the court's findings of fact. They are supported by adequate, substantial and credible evidence in the record and are entitled to deference on appeal. This is especially true since these findings were made in the context of a family-type action, where we recognize the special expertise of Family Part judges in disposing of family-type actions. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

Every parent has a constitutionally protected right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, parental rights are not absolute. "Balanced against the constitutional protection of family rights is the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Therefore, before termination of parental rights can occur, the Division must satisfy the "best interests of the child" test by clear and convincing evidence. In re Guardianship of Jordan, 336 N.J. Super. 270, 273-74 (App. Div. 2001). Pursuant to N.J.S.A. 30:4C-15.1(a), when petitioning to terminate parental rights under the "best interests of the child" standard, the Division must prove:

(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 [D]ivision 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.

These four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. Parental fitness is the key to determining the best interests of the child and the considerations involved in determinations of parental fitness are "extremely fact sensitive." Ibid. (quoting In re the Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

A.

In order to satisfy the first prong of the "best interests of the child" test, the harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. It is undisputed in the record that C.C. has long suffered from chronic paranoid schizophrenia and that she has a history of non-compliance with medical personnel. The experts, including C.C.'s expert, agreed that her condition exposed her children to harm because she continues to exhibit symptoms of paranoid schizophrenia such as hallucinations, suspiciousness, and paranoia that would prevent her from being able to properly parent her children. Also, being the genetic offspring of two schizophrenic parents, the children are at a much greater risk of contracting the mental disease, especially if raised in an unsteady, unstable environment. While Dr. Apolito expressed the opinion that, notwithstanding her condition, C.C. would be able to parent if she received the assistance of a home health aide, he too acknowledged that if C.C. became unstable, there "would be a concern as far as her ability to parent her children; no question about it." Consequently, the requisite harm to the children was clearly and convincingly established.

B.

Additionally, the record established that C.C. is unable or unwilling to eliminate the harm facing her children, the second prong of the four-part test. This was evidenced by C.C.'s history of non-compliance with her treatment regimen. Although the testimony revealed that non-compliance with a medication regime is common for people with schizophrenia, Drs. Shnaidman, Smith, DeNigris, and Oquendo all agreed that C.C.'s condition would deteriorate with time due to the pervasive nature of schizophrenia, which is incurable. The undisputed progressive nature of C.C.'s illness and her history of non-compliance clearly and convincingly established, at the very least, her inability, and at most, her refusal to eliminate the harm facing her children.

C.

As to the third prong, the record supports the court's finding by clear and convincing evidence that the Division provided numerous services to C.C. The Division provided C.C. with a homemaker, transportation, a monthly bus card, parenting classes, supervised visitation, furniture, a nutritionist, and psychological, psychiatric and bonding evaluations. C.C. either rejected the services offered, failed to take advantage of them on a consistent basis, or showed no improvement. While the Division is required to provide necessary services, ultimately, C.C., as the parent, is responsible for availing herself of these services. See N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 100 (2008).

D.

Finally, there was clear and convincing evidence that termination of C.C.'s parental rights would not do more harm than good, thus satisfying the fourth prong. The evidence revealed little or no bond between C.C. and R.A.J., Jr. Conversely, the evidence disclosed a strong bond between R.C. and R.T. Nonetheless, the court accepted the expert opinion that any harm caused by a separation would be mitigated by a stable home environment with R.T., with whom R.C. had also developed a strong bond.

III.

We briefly address the trial court's ruling that disallowed Dr. Appolito's expert opinion on his bonding evaluation. "Ordinarily, the competency of a witness to testify as an expert is remitted to the sound discretion of the trial court." Carey v. Lovett, 132 N.J. 44, 64 (1993). "Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Ibid. Our Supreme Court has articulated three basic requirements for the admission of expert testimony:

(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror;

(2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise to offer the intended testimony.

[DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984); See also Biunno, Current N.J. Rules of Evidence, Comment 1 on N.J.R.E. 702 (2009)).]

Here, the trial judge found that Dr. Apolito did not have sufficient expertise to qualify as an expert in bonding evaluations because he lacked specific training in bonding theory. The court noted that he did not recognize leading bonding theorists and had performed only five or six bonding evaluations in the past. In our view, these objections were more appropriately directed to the weight the court should ascribe to his testimony, not to its admissibility. However, since the court permitted Dr. Apolito to testify as to his observations on the day he conducted his evaluation, the court's error in excluding the bonding as part of his expert opinion was harmless. R. 2:10-2.

Affirmed.

 

The biological father, R.A.J., Sr., has already made a general surrender of his parental rights on February 26, 2008 to R.T., the current relative caretaker of the children.

The Division uses the term "failure to thrive" to describe when a child is not gaining any weight or has low weight.

(continued)

(continued)

20

A-6315-07T4

RECORD IMPOUNDED

November 6, 2009