NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. T.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3784-08T43784-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.H.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF S.M.H.

and J.H.,

Minors.

_______________________________

Argued May 10, 2010 - Decided June 14, 2010

Before Judges Reisner, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG 07-71-08.

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Wroblewski, of counsel and on the brief).

Cissy M. Rebich, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Rebich, on the brief).

Phyllis G. Warren, Assistant Deputy Public Defender, argued the cause for minors S.M.H. and J.H. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Warren, on the brief).

PER CURIAM

Defendant T.H. appeals from a Family Part order dated October 29, 2008, terminating her parental rights to her twin children S.M.H. and J.H. We affirm.

I

To briefly summarize, the twins were born on January 29, 2006. Because hospital records indicated that T.H. had no prenatal care and might have limited resources, she was interviewed by a social worker, to whom she told a series of demonstrable falsehoods. That interview led to the involvement of the Division of Youth and Family Services (DYFS). The record would fairly support a conclusion that T.H.'s persistent refusals to cooperate with the most basic and reasonable inquiries and requirements, including giving an accurate home address, and later disappearing with the children, led to the children's placement in foster care.

There followed a series of incidents in which T.H. demonstrated a continued inability or unwillingness to take the steps needed to obtain reunification with her children. Psychological and psychiatric examinations produced recommendations that she was not able to parent her children and would be unable to do so in the foreseeable future. After two years in foster care, the children had not bonded with T.H. but they had bonded with their foster parents, who wanted to adopt them. Based on this evidence T.H.'s parental rights were terminated.

On this appeal, T.H. seeks to present herself as a fit parent victimized by an intransigent bureaucracy, which should never have become involved with her family in the first place. We conclude that the record does not support her characterization, and contains clear and convincing evidence that termination of her parental rights is in her children's best interests. We also find no merit in her contentions that she was unfairly denied representation by counsel or the opportunity to present expert evidence. To place the issues in perspective, we have set forth in some detail the record provided to us, including the series of hearings leading up to the guardianship trial and the trial itself.

A. Pretrial Proceedings

The transcripts provided to us begin in October 2007, after the Division filed the guardianship complaint. By this time the twins had been in foster care for over a year. At a hearing on October 25, 2007, T.H. appeared late, but when she appeared she confirmed that she was earning $32,000 per year. Judge Rothschild confirmed that she no longer qualified for representation by a public defender attorney and strenuously urged T.H. to retain a private attorney. Her former public defender attorney, who appeared that day as a courtesy to T.H. and the court, advised the judge that he had arranged for a defense psychological evaluation of T.H. The court directed T.H. to continue regularly attending scheduled sessions with her psychologist and to attend a bonding evaluation which DYFS would arrange. In T.H.'s presence the judge set the next hearing date for November 29.

On November 29, 2007, T.H.'s former public defender attorney appeared and provided T.H. with a copy of the defense psychological report from Dr. Silikovitz. T.H. told the judge that she had not retained counsel; the attorney she consulted wanted a retainer that T.H. could not afford. The judge suggested alternative sources from which she could obtain referrals to affordable counsel. At this hearing there was a suggestion that reunification might be appropriate if T.H. continued to make progress. In response to her request, the judge ruled that T.H. could have a day of unsupervised visitation with her children on their birthday, January 29, 2008, at her mother's home. She was also given dates for DYFS psychological and bonding evaluations.

At the next hearing on January 10, 2008, the DYFS attorney expressed concern that T.H. wanted her children to visit with the maternal grandmother, who had a substantial DYFS history. The judge indicated that the maternal grandmother was not to be present when T.H. was visiting with the children.

The next hearing was on January 28, 2008. At that time T.H. asked permission to hold the children's birthday party at the home of her cousin O.C., instead of at her mother's house. DYFS reported that due to an incident in which T.H. brought an unauthorized visitor to Final Stop, that agency was no longer willing to supervise her visits with her children. The DYFS worker indicated to the court that T.H. consistently resisted allowing the agency to inspect and evaluate her residence. In comments to the court T.H. strenuously objected to having her mother's home evaluated. The judge indicated to T.H. the extreme importance of her being truthful with the court and with DYFS, and that her misrepresentation of facts could cause the court to question whether she was capable of parenting. T.H. told the judge that she would be living with her cousin O.C. at an address on Hudson Street in Newark, until construction was finished at her mother's house. Initially, T.H. told the judge that she had arranged to take off the entire day from work the next day for her children's birthday party; however, when she was told the party would be supervised from 12 to 3 at the DYFS office, she represented that she was not sure she could get off from work but would try to "make it happen."

On February 14, 2008, the court held an emergent hearing, because of an incident that had occurred on the way to the scheduled bonding hearing on February 5, resulting in the bonding evaluation being canceled. The judge also advised T.H. that she should schedule Dr. Silikovitz to testify as soon as the court set a trial date. On being told that DYFS still needed to evaluate O.C.'s residence, because she was living there for the foreseeable future, T.H. became belligerent and told the judge she would not give DYFS the information it needed about O.C., such as his exact family connection to her. With exquisite patience, Judge Rothschild explained to T.H. why the agency needed to know the names of O.C.'s mother and any other relatives who might be living with him or be present in his home. T.H. again refused to give the information.

At this hearing, the judge also indicated to T.H. that the agency had provided him with copies of the DYFS records concerning her mother, and he offered to have copies made for her. In response to the judge's question, T.H. indicated that she had never been interviewed by DYFS in connection with the case concerning her mother. The judge asked her, "But what do I have in front of me? Is it a figment of someone's imagination?" T.H. responded that she had never been interviewed in Newark, stating "I've never been to Newark."

At the next hearing on February 28, 2008, T.H. confirmed that she had not attended the re-scheduled bonding evaluation because she was concerned that she would lose her job if she missed any more work. She also complained that the DYFS worker had unreasonably refused to take her to the February 5 bonding evaluation because T.H. had been feeding her child "applesauce in the car." The judge intervened and arranged for the bonding evaluator to give T.H. an appointment after her work hours. At that hearing DYFS also indicated that O.C. had not responded to their inquiries, and T.H. refused to give DYFS any information about him. However, T.H. advised the court that she had just gotten her own apartment on Norfolk Street in Newark, and the court directed DYFS to evaluate that home.

At the March 13, 2008 hearing, the Division agreed that T.H.'s new apartment had been evaluated and was "fine." The agency was also amenable to allowing supervised visitation in T.H.'s home. Once again, the judge strongly urged T.H. to retain an attorney. T.H. explained that since she worked in New York, and had limited amounts of leave time, it was difficult for her to attend mediation and other events in the middle of the day. However, she agreed to attend mediation.

On April 22, 2008, the judge held an emergent hearing to address T.H.'s request for visitation. DYFS asserted that on a recent visit, the new apartment had no furniture, no refrigerator, dishes or other amenities. The judge ordered another immediate evaluation of the home. Again the judge strongly and repeatedly urged T.H. to get an attorney and suggested that the clerk's office might be able to refer her to an affordable attorney. T.H. indicated no interest in these suggestions. Instead, she persisted in arguing with the judge about why her case had not been decided more quickly.

Again, at the hearing on April 30, 2008, Judge Rothschild urged T.H. to get an attorney. At this point, she had made some inquiries. He also urged T.H. to obtain her own bonding evaluation.

The case was transferred to Judge Callahan, who held a conference on June 25, 2008. He directed an updated psychiatric evaluation of T.H., and suggested that if she could not afford to produce Dr. Silikovitz to testify, he might consider the doctor's written report for some purposes.

On August 5, 2008, Judge Callahan held a permanency hearing. T.H., acting pro se, thoroughly cross-examined the case worker. DYFS sought termination of T.H.'s parental rights, because the children had been in foster care for two years and, in the opinion of the Division's experts, T.H. was still not able to act as the children's parent. DYFS also advised the court that the children had bonded with the foster parents, who wanted to adopt them. At this hearing, Judge Callahan approved the permanency plan. He also gave T.H. a stern lecture about the importance of appearing on time for court proceedings, which had been a persistent problem.

At the permanency hearing, T.H. told the court that she intended to call Dr. Silikovitz as a witness at the trial, which was to start on October 7. On September 8, 2008, the judge sent T.H. a letter explaining to her in plain language and in detail the steps she needed to take to obtain public funding to pay Dr. Silikovitz for his trial testimony. Subsequently, at the October 20, 2008 trial, the judge ruled that T.H. would not be able to introduce Dr. Silikovitz's report in evidence, because he had given her an opportunity to present the witness in person, with available funding from the Public Defender, and T.H. had failed to follow up on that offer. However, he permitted her to use the report to cross-examine the State's witnesses.

B. The Trial

At the guardianship trial, which began on October 20, 2008,

the Division presented testimony from Dorothy Kurzweil, a licensed clinical social worker. She received a referral to interview T.H. on January 30, 2006, the day after the twins were born, because hospital records reflected that T.H. had no prenatal care. Her purpose in interviewing T.H., who was then twenty years old, was to be sure she had the financial resources and emotional support to care for the children.

T.H. told Kurzweil that she had not had any prenatal care, because she did not know she needed such care and she had been considering having an abortion. T.H. then told her that the children's father "was killed in a hurricane in Florida." When Kurzweil questioned T.H. further, to obtain information for "social security for dependent children," T.H. told her that the father "had worked for his family, and that they were wealthy, and that he wasn't [working] on the books." T.H. also refused Kurzweil's offer to help her obtain WIC benefits. Because T.H. also told her that she was unemployed, and because Kurzweil doubted the accuracy of the information T.H. was providing, Kurzweil made a "child welfare referral" to DYFS. That type of referral was intended to allow DYFS to provide resources that might be needed, such as a parenting aide in the home, or children's furniture; it was not based on an allegation of child abuse or neglect.

The next day, Kurzweil and DYFS case worker Jeanine Simpkins met with T.H. in her hospital room. Kurzweil's suspicions that T.H. had been untruthful were confirmed when Kurzweil was introduced to the children's father, who was in T.H.'s hospital room. T.H. refused to give Kurzweil or DYFS any of her health history. She gave Kurzweil an address on Clifton Avenue in Newark, which she claimed was her residence. However, the children's birth certificates, which Kurzweil checked in an effort to help T.H. qualify for Medicaid for the children, listed a home address on Park Avenue in East Orange. Kurzweil later learned that DYFS had checked both addresses and found that T.H. did not live at either location.

DYFS worker Simpkins testified that she first interviewed T.H. in the hospital on February 1, 2006. Simpkins' concerns at the time were T.H.'s lack of prenatal care, whether she had housing, and whether she could otherwise meet the babies' needs. At that time, T.H. told Simpkins that she had prenatal care in California, but she could not say where in California nor could she give the name of any doctor. T.H. denied having told Kurzweil that the babies' father was dead. T.H. told Simpkins that she lived with her mother on Clifton Avenue in Newark; however, when another DYFS worker went to that address, the superintendent told her that the mother had not lived there for over a year. When confronted with that information, T.H. insisted that her mother did live at the Clifton Avenue address, but she refused to give Simpkins a telephone number for her mother. The father, who was in the room at the time, urged T.H. to give Simpkins the correct home address. T.H. refused, even though Simpkins told her that there was a "hospital hold" on the children and T.H. would not be allowed to leave the hospital with her children unless she cooperated with DYFS.

Three days later, Simpkins spoke to T.H. by telephone, asking to speak to the children's father. T.H. insisted the father had gone out of town. Simpkins then spoke by phone to T.H.'s uncle who advised her that the father was actually at the hospital with T.H. Simpkins was finally able to reach the father, who advised her that he was not in a position to care for the children at that time. She later made an appointment for T.H. to have a psychological examination, but T.H. did not show up.

As a result of T.H.'s lack of cooperation, the children were temporarily placed in foster care. However, on February 15, after T.H. finally confirmed her correct address on Park Avenue in East Orange, and DYFS ascertained that the housing was appropriate, the children were returned to her. At that time, T.H. was told she had to appear in court on February 21. She failed to appear. When Simpkins finally located T.H. at the Park Avenue residence on April 19, T.H. told her to come back later that day. However, T.H. was not at home when Simpkins returned. As a result, Simpkins was unable to see the children.

After T.H. failed to appear for the next court date, on May 26, the judge issued a bench warrant for her arrest and ordered the children to be removed from her custody. Simpkins went back to the Park Avenue address to retrieve the children, only to find that T.H. had moved out. She finally traced T.H. to an address on Cutler Street in Newark, but was unable to see T.H. However, T.H. brought the children to the next court date in May, and they were placed in foster care.

The Division also presented testimony from Ann Glass, a DYFS family service specialist, who was assigned to the case in October 2007. Glass testified that after the children were placed in foster care the second time, T.H. was frequently late for visits with them. She also repeatedly made unfounded accusations that the children were ill or neglected in foster care. DYFS records also indicate that T.H. made unfounded accusations that the children were sexually abused.

Glass detailed the agency's unsuccessful efforts to find relative placements for the twins, and the agency's efforts to provide T.H. with therapy and visitation. Glass also described the incident on February 5, 2008, when she and another DYFS worker were driving T.H. and her children to a bonding evaluation. T.H. took off her seatbelt and began feeding one of her children from a glass jar of food while the van was in motion. She refused to stop even after Glass told her it presented a safety issue. As a result, Glass stopped the van and told T.H. that she would not continue driving to the evaluation unless T.H. stopped feeding the child. T.H. refused and, as a result, the evaluation did not take place. Glass also testified to two incidents where T.H. overfed one of the children, although she had been warned not to do so. Glass further testified to the children's excellent relationship with their foster parents and their commitment to adopt the twins.

On the issues of parental fitness and bonding, the Division presented testimony from Dr. Peter DeNigris, a psychologist. DeNigris first reviewed the problems presented by T.H.'s inability or unwillingness to provide accurate information about important matters. According to Dr. DeNigris, T.H. denied that her own family had any involvement with DYFS, even though the agency's records indicated "significant evidence" of its involvement with her family when she was a child. T.H. told DeNigris she had no memory of that involvement and that "the psychological evaluation that was given to [him] might have been fabricated." DeNigris believed that either her childhood experiences were so traumatic that she still could not talk about them, or that she was not being truthful with him.

T.H. also told him that she had prenatal care when pregnant with the twins, when the agency's documents indicated that she had none. He opined that her inability to obtain proper care for herself might foreshadow her inability to obtain appropriate medical care for her children. Likewise, her unwillingness to provide DYFS with a correct home address cast doubt on "her willingness to pursue reunification" with her children. T.H.'s statement to him that she "takes no medication, not even an aspirin" caused DeNigris concern that she might also withhold necessary medical care from her children. T.H. refused to complete the "true/false" section of the psychological test he administered, insisting instead on writing in narrative answers. He concluded that "she was very concerned with portraying a favorable image of herself . . . a degree of perfectionism."

According to DeNigris, T.H. also appeared not to understand the difficulties her children might have in adjusting to a transition between their foster parents and living with T.H., if she was to be reunified with them. Her inability to cooperate with the requirements of visitation agencies, resulting in her termination from at least three of them, also confirmed his view that she tended to place her own needs ahead of her children's needs. He further opined that she lacked insight into the ways that her own behavior had contributed to losing custody of her children.

According to DeNigris, T.H. was uncooperative at the bonding evaluation, returning twice to the room after being told that she needed to leave and stay out of the room until the doctor called her back in. According to the doctor, a separation period was a standard and important part of the bonding evaluation, because it allowed him to gauge the children's reaction to the parent's departure and to her reappearance after a period of separation. He explained this to T.H., but she re-entered the room anyway. DeNigris had never experienced a situation where a parent such as T.H. would not or could not cooperate with his instructions.

During the bonding evaluation, T.H. paid more attention to the daughter than the son, appearing to overlook his needs. He observed her over-feeding the daughter, causing her to vomit immediately after the visit. He also observed that the son "tended to avoid her." He noted that the children did not explore the room when they were with T.H., as they did with their foster parents. They also showed no reaction when T.H. left the room or when she returned. This supported his conclusion that they did not have a parent-child bond with her. He concluded that the children would not suffer harm if T.H.'s parental rights were terminated.

By contrast, DeNigris observed a strong bond between the children and the foster parents. He described in detail the severe emotional harm the children would suffer if they were separated from the foster parents. He further testified that if the children were reunified with T.H. and the reunification failed, they would not only suffer the "grief and loss" of separation from the foster parents, but could suffer "an impact on their ability to form healthy attachments . . . feelings of difficulty with trust, betrayal, powerlessness, symptoms of trauma."

Based on his psychological testing and evaluation DeNigris concluded that T.H. was not capable of acting as a parent currently or in the foreseeable future. He found her to be "easily excited, intolerant of frustration, delay, or disappointment." This would contribute to her inability to care for two young children.

The Division also presented testimony from a psychiatrist, Dr. Alexander Iofin, who had assessed T.H. over a period of two days and had issued an extensive report. He concluded that T.H. was an "unreliable historian" meaning that she tended to provide inaccurate information. He noted on both direct and cross-examination, examples of her behavior, such as telling DYFS that the father of her child had died, her later claim that she became pregnant as the result of rape, and her constantly changing stories about where she lived. He diagnosed T.H. with a type of personality disorder known as "passive-aggressive disorder." He explained that this disorder could not be treated with medication and was not likely to be treatable with therapy, because the person who has the disorder does not see herself as needing therapy. One of the traits associated with this disorder was what he called "fostering chaos." Iofin explained that T.H. demonstrated this in her inability "to follow through with very simple requirements" imposed by DYFS and by the court system.

According to Iofin, her passive-aggressive personality was also manifested in her repeated agreement to attend appointments, followed by her failure to appear for them. T.H. was essentially either unwilling or unable to follow any rule or requirement with which she disagreed. She also was unable to understand how this behavior got her into difficulties, including facing the loss of her children. Iofin testified that his diagnosis was made independently but was consistent with the opinions of almost all of the other psychiatrists and psychologists who had previously examined T.H.

Iofin explained that although T.H. was unlikely to physically harm her children, she was unfit to parent them, because she was likely to cause them psychological harm. For example, he stated that if given custody of her children, she would be unwilling to let them visit with their foster parents in order to help them make the transition from their home to hers. She was also likely to "create turmoil" in her relationships with others, including other authority figures in the children's lives, such as teachers and doctors. He opined that a passive-aggressive person would be likely to resent having to spend time with her children or having to meet the normal demands children place on parents. He concluded that the children would be traumatized by her behavior and "will essentially then mimic the same behavior[] when they both have spent years and years" with T.H. He further testified that it was rare for someone to have passive-aggressive disorder to the extent and severity as T.H. On cross-examination, T.H. questioned Iofin about Dr. Silikovitz's report; Iofin disagreed with Silikovitz, noting that he was the only mental health professional to examine T.H. who did not find "any psychiatric pathology."

T.H. did not present any testimony at the hearing. However, she extensively cross-examined each witness and made a motion to dismiss at the close of the State's case.

C. Judge Callahan's Decision

After hearing closing arguments, Judge Callahan placed a sixty-three page oral opinion on the record on October 29, 2008. In his opinion, he initially indicated that he would, as required, consider whether DYFS had satisfied the four prong standard for termination of parental rights. That test is as follows:

(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).]

Judge Callahan found Kurzweil to be a credible witness, and concluded that under all the circumstances, she acted reasonably in making a referral to DYFS. He found that "[i]t was [T.H.'s] non-responsiveness to appropriate and usual interview questions that brought . . . Ms. Kurzweil[] to the conclusion she had the obligation to notify the Division."

The judge also credited Simpkins' testimony about T.H.'s lack of cooperation with DYFS, although T.H. knew that there was a "hospital hold" on the children and getting her children back depended on her cooperation. He accepted Simpkins' description of the extended wild goose chase on which T.H. sent the Division in its efforts to confirm her home address. He also considered T.H.'s failure to appear for the first scheduled court hearing, despite notice, and her failure to attend a court-ordered psychological evaluation. He concluded that T.H. demonstrated a "lack of effort or interest" in getting her children back. Recalling that he had placed T.H. on notice under State v. Clawans, 38 N.J. 162 (1962), that he would draw an adverse inference if she did not produce her mother or grandmother to confirm the address T.H. initially gave DYFS, the judge concluded that T.H. lied to the DYFS workers about her address.

The judge next considered T.H.'s violation of a court order prohibiting her from taking the children out of state. The record reflected T.H.'s eventual admission to Simpkins that, when she had disappeared with the children, she took them to Maryland and New York. He also found that T.H. failed to appear with the children for a scheduled paternity test and failed to attend a re-scheduled psychological examination. Based on all of the evidence DYFS presented, the judge found that the Division satisfied the first prong of the best interests test by proving that T.H. endangered her children's health and safety, leading to their extended placement in foster care.

Turning to the third prong, the judge found that DYFS made reasonable, albeit unsuccessful efforts to locate relatives willing to take in the children. He also found that the agency made extensive efforts to provide T.H. with visitation and social services. He found that T.H.'s misconduct resulted in several facilities being unwilling to continue providing supervised visitation. He concluded that DYFS satisfied the third prong.

The judge then turned to prong two, which he noted "may be satisfied by indications of parental irresponsibility, and dereliction, such as the inability to provide a stable[] and protective home." [citing In re K.H.O., 161 N.J. 337, 353 (1999)]. The judge acknowledged that in this case, prong two overlapped with prong four, in that the children had been living with their foster parents for over two years and would suffer serious and enduring harm if separated from them. He found that, even at that late date, T.H. had not provided credible proof of where she was living, or proof of her ability to make arrangements for the children's medical needs or childcare while she was working. The judge further considered T.H.'s irregular visitation as evidence of her unreliability where the children's interests were concerned.

He credited Dr. Iofin's diagnosis that T.H. had a passive-aggressive behavioral pattern. He found as an example, T.H.'s pattern of insisting on special visitation arrangements to suit her schedule and then appearing late, leaving early, or failing to appear altogether. This in turn resulted in her being unable to obtain the additional hours of visitation she requested. He also noted her unwillingness to accept reasonable suggestions during the visitation, concerning her interaction with the children.

The judge credited Dr. Iofin's testimony as "believable, and cogent." He specifically credited Iofin's opinion that T.H.'s inability to comply with normal societal rules and to deal with authority figures for her children's benefit, would harm them:

Our focus . . . has to remain on the ability of the mother to protect and avoid harm [] to [the twins], so that Dr. Iofin's point is the conduct that she is exhibiting, aside from what he politely terms her proclivity to prevaricate, is that she has, and will ignore her children's expectations . . . . I will . . . add that she has, and continues to ignore the normal authority-type figures that we encounter in our community.

. . . such authority figures as preschool personnel, and thereafter as they grow, normal school individuals, teachers, . . . pediatricians, and as well as their office staff, who have to be negotiated for services, to name only [a few].

Judge Callahan also considered T.H.'s repeated failures to appear on time for court hearings, and the fact that when she finally appeared she generally offered unbelievable excuses. He considered that if she could not appear on time for important court events, she might well also fail to appear on time for other events that would be important to her children's wellbeing. The judge further considered T.H.'s repeated failures to appear for appointments with Dr. Katz, her treating psychologist. Dr. Katz diagnosed her with personality disorder and noted her distorted views of reality.

Judge Callahan found this consistent with Dr. Iofin's more specific and detailed diagnosis of passive-aggressive personality disorder. He found that T.H.'s pattern of conduct throughout the case supported Iofin's diagnosis. He also accepted Iofin's opinion that because of her personality disorder, T.H. would cause her children psychological harm. In the context of evaluating Iofin's diagnosis, the judge also considered a 1999 report from Dr. Huber, who had evaluated T.H.'s family when she was thirteen years old. Huber interviewed T.H. and other family members during a guardianship case that arose from multiple reports that T.H.'s mother severely abused her children. DYFS records revealed that the police had been called to the home dozens of times. Yet, when T.H. was interviewed by Dr. Katz and Dr. Iofin, she insisted that her childhood had been normal, devoid of any abuse, and she denied ever speaking to Huber.

The judge credited Glass's testimony concerning the history of T.H.'s lack of cooperation in providing DYFS with important information, her unfounded complaints that the children were abused in foster care, and T.H.'s perennial problems with visitation. He credited Dr. DeNigris's and Glass's testimony about T.H.'s over-feeding her daughter. He also accepted Glass's version of the February 5, 2008 incident in which T.H. insisted on feeding her child in the moving car, leading to the cancellation of a bonding evaluation. Based on all of the testimony and record evidence, he concluded that DYFS had satisfied the second prong.

Finally, the judge concluded that the agency had also satisfied the fourth prong. He accepted Dr. DeNigris's testimony in its entirety, including his conclusion that T.H. was not a fit parent. The judge credited DeNigris's testimony that the twins had not bonded with T.H. and would not suffer harm if her parental rights were terminated. He also accepted DeNigris's opinion that the twins had a parent-child bond with the foster parents and would suffer severe and lasting harm if they were separated from them. Emphasizing "the children's need for permanency and stability," the judge found "overwhelming clear and convincing evidence" to support each of the four prongs, requiring that T.H.'s parental rights be terminated in the children's best interests.

II

"Parents have a constitutionally-protected, fundamental liberty interest in raising their biological children, even if those children have been placed in foster care." Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). This right co-exists with the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The State may terminate parental rights when it is demonstrated that the "child's parent or custodian is unfit . . . or the child has been neglected or harmed." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 434 (App. Div. 2009) (quoting In re Guardianship of J.C., supra, 129 N.J. at 10 (citations omitted)).

In an action to terminate parental rights, DYFS must prove by clear and convincing evidence the four prongs of the best interest test developed in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). These factors are "not 'discrete,' but rather `relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. A.R., supra, 405 N.J. Super. at 434.

A trial court's decision to terminate parental rights is entitled to great deference. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Accordingly, our review of Judge Callahan's decision is circumscribed. Ibid. The trial court's findings of fact and conclusions of law are binding if they are supported by adequate credible evidence. Id. at 279. "Deference is especially appropriate `when the evidence is largely testimonial and involves questions of credibility'". Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Because the trial court observes and hears the witnesses directly, it "has a better perspective than a reviewing court in evaluating the veracity of witnesses." Pascale v. Pascale, 113 N.J. 20, 33 (1988). However, the court's decision is not entitled to any special deference if the trial judge misconceives the applicable law or misapplies the law to the facts. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). Judged by those standards, we find no basis to disturb Judge Callahan's decision, and we affirm substantially for the reasons set forth in his comprehensive opinion.

On this appeal, T.H. contends that she was denied the right to trial counsel and was unfairly denied the opportunity to introduce Dr. Silikovitz's report in evidence. She also contends that the trial court, as well as Drs. NeNigris and Iofin, improperly considered Dr. Huber's report as well as other DYFS records concerning T.H.'s family. Finally, she argues that the trial court's best interests determination is not supported by substantial credible evidence. A fair reading of the record reveals no merit in any of these contentions and, except as discussed herein, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

There can be no doubt that parents have a constitutional right to counsel in a guardianship trial. See N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007). To that end, indigent parents are entitled to court-appointed counsel. Crist v. N.J. Div. of Youth & Family Servs., 135 N.J. Super. 573, 575 (App. Div. 1975). This right is codified in N.J.S.A. 30:4C-15.4(a), which provides, in relevant part:

In any action concerning the termination of parental rights filed pursuant to [N.J.S.A. 30:4C-15], the court shall provide the respondent parent with notice of the right to retain and consult with legal counsel. If the parent appears before the court, is indigent and requests counsel, the court shall appoint the Office of the Public Defender to represent the parent. . . .

If the parent was previously represented by counsel from the Office of the Public Defender in a child abuse or neglect action . . . the same counsel, to the extent practicable, shall continue to represent the parent in the termination of parental rights action, unless that counsel seeks to be relieved by the court upon application for substitution of counsel or other just cause.

In this case, T.H. was not entitled to continued representation by the Public Defender, because she was not indigent. Based on her own statements, when the trial began she had been employed full-time for over a year at a salary of more than $30,000. She did not claim to be indigent, and she provided no evidence that she could not find a private attorney.

At a series of hearings, Judges Rothschild and Callahan explained to T.H. in plain language the difficulties she might face as a non-lawyer in representing herself and urgently advised her to retain private counsel. She did not do so. Instead, she persisted in representing herself. Further, despite being pro se, she articulately presented her defense, and cross-examined every witness in great detail. We find no due process violation or other legal error because the trial judge failed to sua sponte appoint counsel for her.

We likewise find no merit in her argument that the trial court should have allowed her to place Dr. Silikovitz's report in evidence in lieu of his trial testimony. Well in advance of the trial, Judge Callahan gave T.H. written notice that public funds were available to pay for Dr. Silikovitz's court testimony, and he provided her explicit instructions as to how to apply for that funding. However, T.H. did not apply. Instead she waited until the end of the second day of the three-day trial before advising Judge Callahan that not only had she failed to apply for the funds, but Dr. Silikovitz was not available to testify.

The trial had been specially scheduled for three consecutive days to accommodate T.H.'s work schedule. We find no abuse of the trial judge's discretion in declining to adjourn the trial based on T.H.'s last-minute request to present this expert witness. We also consider that, although the judge did not admit the expert's report in evidence, he permitted T.H. to cross-examine the State's experts on the opinions stated in the report.

We also find no merit in T.H.'s arguments concerning Dr. Huber's report and the related DYFS records concerning her parents' history with the agency. T.H. did not object to the admission of these documents in evidence. See N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010). Moreover, Huber's report was clearly admissible pursuant to Rule 5:12-4(d), which permits DYFS to admit in evidence the reports of its "professional consultants." See id. at 347; In re Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). The other documents were likewise part of the agency's file and would have been admissible as business records, had T.H. made an objection requiring the agency to authenticate them. See M.C., supra, 201 N.J. at 346-48.

Further, Huber's report was not introduced to establish his included psychiatric diagnosis, N.J.R.E. 808, but to illustrate the testifying experts' concerns that T.H. persistently denied a history of childhood trauma, despite documentary evidence that her family had significant DYFS involvement and Dr. Huber had interviewed T.H. in connection with that DYFS case. The additional records that DYFS introduced to show its previous involvement with T.H.'s family are relevant to the same point. Nothing in this record remotely supports T.H.'s argument that she was deemed an unfit parent because her mother had a psychiatric history.

Finally, Judge Callahan's conclusion, that DYFS satisfied the four prongs of the best interests test, is amply supported by credible evidence in the record. M.M., supra, 189 N.J. at 279. We find no basis to disturb the judge's finding that the DYFS workers were credible, nor his decision to credit the testimony of the State's experts, both of whom explained their opinions cogently and in detail.

Affirmed.

 

The parental rights of the children's father D.J. were also terminated, but he has not appealed from that decision.

On cross-examination, Simpkins explained that she was chosen to work on T.H.'s case because she had previously worked on cases involving T.H.'s sister and brother.

(continued)

(continued)

32

A-3784-08T4

RECORD IMPOUNDED