NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. D.Y.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION

OF CHILD PROTECTION

AND PERMANENCY,

Plaintiff-Respondent,

v.

D.Y.,

Defendant-Appellant.

and

G.Y.,

Defendant,

__________________________

IN THE MATTER OF THE

GUARDIANSHIP OF G.M.Y. and

D.R.Y., minors.

_______________________________________________________________

October 7, 2016

Submitted September 27, 2016 Decided

Before Judges Reisner and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-59-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Nicole T. Castiglione, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (James J. Gross, Designated Counsel, on the brief).

PER CURIAM

Defendant D.Y. appeals from the Family Part's December 9, 2015 judgment of guardianship and order terminating his parental rights to his two daughters. On appeal, defendant argues the court erred in permitting plaintiff the Division of Child Protection and Permanency's (Division) expert to testify to matters beyond his report and in finding that the evidence adduced at trial established each prong of the best-interests analysis set forth in N.J.S.A. 30:4C-15.1(a). We affirm, substantially for the reasons stated by Judge Melanie Donohue Appleby in her oral decision, finding by clear and convincing evidence that each prong of the best-interest analysis was satisfied.

The evidence is outlined in detail in the judge's decision. A summary will suffice here. Defendant and G.Y. (Glenda)1 had two daughters G.M.Y. (Gail), born January 2006, and D.R.Y. (Dana), born September 2009. 2 Defendant has long-standing problems with drug addiction and mental health issues that have led to his involvement in domestic violence actions, arrests, incarcerations, and an inability to maintain safe and stable housing. During the course of the Division's involvement with the family beginning in 2013, the Division on its own and in accordance with court orders offered numerous services to defendant to address his issues. Defendant, however, rarely, if ever, complied and successfully completed any case plans to which he agreed in order to maintain his children's care and custody or any programs arranged for by the Division to address his issues.

Defendant did participate in psychological, psychiatric, and bonding evaluations. He was evaluated by psychologist David R. Brandwein, who concluded defendant should not be an independent caretaker of his children due to "unresolved concerns about [his] abuse of his prescription medication and/or use of illegal drugs[, his] lack of participation in mental health services despite a long-standing diagnosis of a depressive disorder and multiple psychiatric hospitalizations," and concerns that defendant had perpetrated and exposed his children to domestic violence. Upon completing a reevaluation of defendant, the doctor concluded that he could not "endorse [defendant] for anything other than therapeutic contact with his children," and that "[f]amily reunification [was] not feasible at [that] time and is highly unlikely to be feasible in the foreseeable future." He noted that defendant had "consistently failed to comply with Division and [c]ourt-ordered services" and found "there is no reason to believe that any further services . . . would result in [his] compliance." He concluded that defendant's "consistent pattern of non-compliance with services and failure to understand the seriousness and intensity of his substance-related and mental health issues indicate[d] he is poorly positioned to reliably care for his own needs, never mind the needs of his children."

The doctor also conducted a bonding evaluation with defendant and the children3 and concluded that "severing the parent-child relationship . . . would not result in enduring psychological harm to the children." He found defendant "lacks the psychological capacity to parent [Dana] in a way that would improve their psychological bond and to re-establish a relationship[.]" He found defendant also "lacks the personal and psychological stability necessary to provide safety, security, and/or consistent caregiving to either of his children and he is not likely to be able to offer [same] in the foreseeable future," and opined that defendant's "untreated substance-related and psychiatric conditions indicate it would be a matter of when, not if, [defendant] would expose his children to factors associated with child abuse and/or neglect."

Brandwein also conducted a bonding evaluation between the children and their resource parents, finding that they shared a secure bond with their resource parents of the type "observed between children and their primary caregivers." Brandwein found that the resource parents had "the ability to parent the children, structure their environment, and regulate their behavior and affect," and "provided [the children] with stable, consistent care . . . their biological parents have been unable to provide." He found that, though neither child was likely to suffer "a grief reaction" if their relationship with their biological parents was severed, if they were to have such a reaction, "continued safe and reliable care from the resource parents [and] continued individual therapy" would likely help them "work through the grief reaction and make a positive adjustment to permanency in the home of the resource parents." He also found that, were they to be separated from their resource parents, "both girls would likely have a psychological reaction that would include anxiety, depression, grief, and a sense of impermanency" that neither biological parent would have "the psychological capacity to attenuate." Brandwein also noted that "[f]or [Gail], who clearly feels unsafe while with her parents, family reunification would likely provoke a psychological reaction that would exceed her capacity for resiliency." Ultimately, Brandwein recommended the children "be placed in the guardianship of the Division . . . for the purpose of adoption by their resource caregivers."

Alexander Iofin, M.D., performed defendant's psychiatric evaluation and diagnosed him with "affective disorder, NOS [(not otherwise specified)], versus depressive disorder, NOS, . . . cannabis abuse, [and] provisional opiate and benzodiazepine abuse."4 Iofin also "maintain[ed] a high level of suspicion that [defendant] has multiple maladaptive personality traits," and opined that defendant "needs to be treated with psychotherapeutic and psychopharmacological treatment modalities utilized together," subjected to random drug screenings, and "be considered for treatment [as] a dual diagnosis/MICA [(Mentally Ill, Chemically Addicted)] patient."5 Ultimately, Iofin was "cautiously optimistic" that defendant's psychiatric functioning could improve if he "follow[ed] properly with the [recommended] treatment modalities" Iofin recommended.

At the ensuing guardianship trial, Drs. Iofin and Brandwein testified on behalf of the Division regarding their respective evaluations of defendant. The Family Services Specialist assigned to the family's case testified to the Division's involvement with the family over the years. Defendant did not testify or call any witnesses.

After considering the testimony and evidence adduced at the trial, Judge Appleby found that the Division had proven all four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), and that termination of defendant's parental rights was in the children's best interests.

Our review of the trial judge's decision is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We defer to her expertise as a Family Part judge, id. at 412, and we are bound by her factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super 172, 188 (App. Div. 1993)). After reviewing the record, we conclude that the trial judge's factual findings are fully supported by the record and, in light of those facts, her legal conclusions as to the best interest of the child test are unassailable.

Defendant also contends the court abused its discretion in admitting Iofin's testimony that patients who do not take medication "experience a higher rate of illness" and "progression of the[ir] disease due to atrophy from loss of cells."6 He argues this testimony exceeded the scope of Iofin's expert report and bore no relation to any statements therein, and therefore "constituted surprise . . . , causing prejudice to [defendant's] case," as defendant was unable to rebut this testimony without the use of his own expert.

A trial court's decision as to the admissibility of expert testimony is reviewed for abuse of discretion, and "should stand unless 'so wide off the mark that a manifest denial of justice resulted.'" Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 72-73 (App. Div. 2010) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)), certif. denied, 205 N.J. 518 (2011); see also Townsend v. Pierre, 221 N.J. 36, 53 (2015).

"When an expert's report is furnished, 'the expert's testimony at trial may be confined to the matters of opinion reflected in the report.'" McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.) (quoting Maurio v. Mereck Constr. Co., Inc., 162 N.J. Super. 566, 569 (App. Div. 1978)), certif. denied, 108 N.J. 219 (1987); see also Anderson, supra, 416 N.J. Super. at 72. However, experts are not foreclosed from testifying to "the logical predicates for and conclusions from statements made in the report." McCalla, supra, 215 N.J. Super. at 171; see also Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div.) ("Limiting an expert to a statement of bare conclusion without giving the expert a chance to explain his or her reasons in detail is not fair or reasonable." (citation omitted)), certif. denied, 170 N.J. 210 (2001).

While the decision to preclude expert testimony on a matter not covered in the expert's report lies within the trial court's discretion, judges are "strongly urged" not to exclude such testimony where there was no intent to mislead and the testimony's admission does not prejudice or surprise the objecting party. Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 131-32 (App. Div. 1997); see also Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000). Ultimately, the decision as to whether to exclude such testimony is guided by what is "just and reasonable." Wymbs, supra, 163 N.J. at 543 (quoting Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (App. Div. 1988), aff'd sub nom. Mauro v. Raymark Indus., Inc., 116 N.J. 126 (1989)).

Applying this standard, we find defendant's argument to be without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say the challenged testimony provided explanation for statements made in Iofin's report without adding to or changing his findings or conclusions and, in any event, the judge did not mention or rely on the particular testimony in her decision, giving the challenged

testimony little, if any, weight.7 As the judge found, Iofin was a "credible witness," but "there wasn't a lot there to give much weight to" since his report was "stale" because defendant did not submit to a second, more recent evaluation.

Affirmed.

1 Glenda voluntarily surrendered her parental rights and is not party to this appeal.

2 Pseudonyms are used to protect the privacy of those involved.

3 Gail refused to participate in the bonding evaluation and told defendant "she did not wish to see and/or speak with him ever again." Though Dana participated in the bonding evaluation, defendant was "generally inactive" and made little effort to "engage her in play."

4 Gail also underwent a psychological evaluation by Vanessa Marcantuono, Ph.D., who found Gail suffered from a "high degree of feelings of ineffectiveness" and struggled with "anxiety and posttraumatic symptomatology." She reported that Gail "clearly did not feel safe in her parents' care and readily reports having frequently had nightmares about the fighting that ensued between her parents . . . [, and] quickly and anxiously states . . . that she does not want to live with her parents, and wants to 'stay with [her resource mother] forever.'"

5 Iofin also recommended reassessment in four-to-six months and review of defendant's SSI file "due to significant discrepanc[ies] between [his] statements . . . that he does not have any significant underlying psychiatric problems and [that] he consistently for a period of many years was found as psychiatrically disabled by Social Security Disability."

6 Iofin testified that, based on imaging studies conducted of individuals with affective disorders, it was known that certain medications promote neurogenesis "the development of new neuron cells" and "delay [the] elevation of symptoms in patients" suffering from affective disorders, and that the failure to take these medications "led to progression of the condition." Iofin was simply providing the basis for his opinion that, because defendant failed to comply with the treatment Iofin recommended, it was unlikely there would be "any significant improvement in [his] functioning."

Defendant also objected when Iofin began to differentiate between the different degrees of affective disorders, which include depression and bipolar disorder, arguing the testimony was "beyond the scope of the question, and a narrative and a discourse."

7 Defendant's reply brief appears to suggest the court explicitly relied upon Iofin's testimony regarding neurogenesis, citing the court's reference to "Iofin's testi[mony] that defendant stopped taking his medications due to a 'cognitive distortion,'" Iofin's reference to defendant's "cognitive distortion" was unrelated to his testimony regarding neurogenesis.