Opinion
DOCKET NO. A-2048-11T2
05-06-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.T., Defendant-Appellant, and J.H., Defendant-Respondent. IN THE MATTER OF Jo. T. and Ja. T., Minors.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief). James D. Harris, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief). Sarah L. Monaghan, Designated Counsel, argued the cause for respondent J.H. (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the brief). David Valentin, Assistant Deputy Public Defender, argued the cause for minors Jo. T. and Ja. T. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Nugent and Haas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FN-03-140-10.
Michael C. Wroblewski, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief).
James D. Harris, Deputy Attorney General, argued the cause for respondent New Jersey Division of Youth and Family Services (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).
Sarah L. Monaghan, Designated Counsel, argued the cause for respondent J.H. (Joseph E. Krakora, Public Defender, attorney; Ms. Monaghan, on the brief).
David Valentin, Assistant Deputy Public Defender, argued the cause for minors Jo. T. and Ja. T. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Valentin, on the brief). PER CURIAM
A.T. appeals two orders entered by the Family Part judge: (1) the March 1, 2011 order of abuse or neglect entered following a fact-finding hearing, and (2) the November 18, 2011 dispositional order terminating litigation and determining it was not safe to return the minor children, Jo. T., born July 14, 2006, and Ja. T., born September 1, 2007, to A.T., their biological mother, and continuing custody of the children with their biological father, J.H. We affirm.
One witness, Division caseworker, Kimberly Omega testified at the fact-finding hearing. Additionally, the referral report investigation summary and two reports from New Jersey Cares were all admitted into evidence without objection. According to the evidence, A.T. started dating L.R. in August 2009, and L.R. moved in with A.T. and her children in May 2010. A.T. worked at McDonalds part-time and would sometimes leave the children in L.R.'s care, "instead of taking them to daycare[,]" to "'slow [L.R.] down.'" A.T. would not elaborate as to what that phrase meant, but acknowledged to the Division worker that L.R. could have been using drugs, cheating on her, or having people come to the home.
A.T. believed something was not right with L.R. and her children and had these suspicions for the month leading up to June 15, 2010. As a result, she always told "the kids" to lock the bedroom door when she was not home and L.R. was there, so that Jo. T. and Ja. T. would be safe.
On June 14, 2010, A.T. confronted L.R. about his sexual orientation when the issue was raised to her by a friend. After A.T. called L.R. a "homo," he became angry and struck her. This incident occurred while she and L.R. were in her car, and the children were also present. Later that day, he took her car and, when he returned hours later, he appeared hot, sweaty, smelled like metal, and had "feces on the back of his pants." A.T. instructed the children to stay in their room and lock the door behind them so L.R. could not get to them.
While the children were locked in their bedroom, A.T. stayed up playing video games with L.R. from 7:00 p.m. until 2:30 a.m., at which point the two went to bed together. At approximately 5:00 a.m., A.T. was awakened by L.R. getting back into the bed. Once again, he was "hot and sweaty." A.T. went to check on her children. She used a credit card to enter their locked bedroom. She awakened them. Jo. T. stated L.R. had entered the bedroom, threw a toy bat at his head to wake him, and "touched his leg and his pee-pee." Ja. T. told her the same thing. She immediately took the children to Virtua Hospital.
The children later underwent a Child Advocacy Center (CAC) interview, during which Ja. T. stated L.R. beat up A.T. and that L.R. touched him on his pee-pee with his hands. Jo. T. also confirmed Ja. T.'s statement and stated L.R. touched him while pointing to his own genital area. During the physical examination, the doctor found marks on Jo. T.'s back. Jo. T. reported the marks were from L.R. hitting him with a belt. He stated he did not feel safe with L.R. and that A.T. was present when L.R. hit him.
After the examinations, the children were placed in foster care for a short period of time. A.T.'s mother contacted the caseworker and said she was unable to care for the children because she was working full-time and felt the children would be better off with their father, J.H. The caseworker visited J.H.'s residence and found it to be adequate, with an extra room the boys would share.
The Division filed a verified complaint on June 18, 2010 against A.T. and J.H., seeking custody, protection and the best interests of Jo. T. and Ja. T. The parties agreed to the placement of the children with J.H. On June 18, 2010, the return date of the order to show cause hearing, Judge John L. Call, Jr., granted custody of the children to J.H. He granted the Division care and supervision of the children. Judge Call also ordered counseling for the children, a psychological evaluation of A.T., and compliance with all recommendations.
During a hearing the following month before another judge, the Division reported that A.T. had tested positive for marijuana and was scheduled for a psychological evaluation and intake at Delaware House on July 20, 2010. The court granted A.T. supervised visits with the children and ordered that A.T. undergo a psychological evaluation and substance abuse treatment. The court continued physical custody of the children with J.H. and directed that they continue receiving counseling.
Meryl E. Udell, Psy. D., conducted the psychological evaluation of A.T. She diagnosed A.T. as suffering from schizoaffective disorder and cannabis abuse. Dr. Udell opined that A.T. was a risk to her children because of her ill-considered and impulsive behavior, the relationships she entertains, and her history of emotional instability.
Judge Philip E. Haines conducted the fact-finding hearing on January 14, 2011 and issued a written opinion at its conclusion. He found the Division had established that Jo. T. and Ja. T. were abused or neglected by A.T.'s actions. He concluded A.T. "acted unreasonably when she put [Jo. T.] and [Ja. T.] in substantial danger while in [L.R.]'s care in an effort to stymie [L.R.'s] drug use[]" and "when she suspected that [L.R.] presented [a] danger . . . [she] did nothing to prevent the harm beyond telling [the children] to lock themselves in their bedroom." The judge determined A.T. "failed to exercise a minimum degree of care when she was aware of the dangers inherent in a situation and failed adequately to supervise the children or recklessly created a risk of serious injury to her children."
On September 30, 2011, Judge Haines held a dispositional hearing to determine whether the children could safely be returned to A.T. A.T. presented Dr. David Bogucki, a psychologist, who testified that he conducted a "mental status examination" and found no evidence of organic brain dysfunction, but he did find mild visual perception impairment. According to the doctor, A.T. tested at the "borderline to low-average intellectual functioning" but he did not "detect anything from a neurocognitive perspective that would be dispositive of her capacity to parent." He found no risk factors in her personality and emotional functioning that would "be dispositive of her capacity to parent at the present time." Dr. Bogucki also testified A.T. told him of her plans to live with her mother, admitted she made a mistake by allowing L.R. in her home, took responsibility for her actions and exhibited "remorse and guilt over that [decision]." He expressed the opinion that "at the present time she's able to parent her children without any risk factors to them."
Under cross-examination, Dr. Bogucki testified he was unaware A.T. had reported that as a child, she had been abused by one of her mother's boyfriends, as well as her mother's husband. Nor was he made aware by A.T. that she had experienced a difficult relationship with her mother throughout her entire life, and that her mother had not confirmed that A.T. and the two children would be living with her.
In his November 18 written opinion, Judge Haines concluded that although A.T. "has significantly ameliorated the initial specific conduct because she has ended her relationship with [L.R.,]" her decision to reside with her mother demonstrated poor judgment, notwithstanding counseling she had undergone. The judge found that counseling may or may not "address the problem of appropriate decision-making[,]" but reasoned:
The decision to secure housing with the maternal grandmother, while it may be prompted by necessity, nevertheless does not ensure that the children may safely be released to the custody of [A.T.] when the [c]ourt has found that [A.T.] herself, throughout her entire life and as recently as six years ago, could not safely be in the custody or live with the maternal grandmother. The [c]ourt is not convinced [A.T.] could protect her children against a risk of similar nature when she could not even protect herself.
The [c]ourt is not finding that to remain with the church families would ensure safety, and no inference should be drawn as to choosing to remain with church families.
It is not known whether further counseling and monitoring will adequately address the problem of appropriate decision-making. There have been psychological and psychiatric evaluations, individual therapy, family therapy, and parenting skills counseling. Yet, [A.T.'s] plan is to live with the maternal grandmother. The [c]ourt can only consider the facts; there is no
third alternative for housing. The [c]ourt cannot say that further counseling will adequately address the problem, so that on balance, the children should reside with her. The [c]ourt concludes that it is not safe for the children to return to [A.T.]
Having determined the children could not be safely returned to A.T., the court next considered whether the continued placement with J.H. was in the children's best interest. The court, citing N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 404 (2009), found there was "no reasonable basis to exclude a non-custodial parent from being considered as someone with whom the court may place the child." The court then considered the factors set forth in N.J.S.A. 9:6-8.54 and concluded J.H. was a relative or other suitable person with whom the children may be placed and their continued placement with him was in their best interest.
On appeal, A.T. raises the following points for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN FINDING THAT A.T. ABUSED OR NEGLECTED HER CHILDREN.
POINT II
THE JUDGE ERRED IN HIS DISPOSITIONAL DECISION BY FINDING THAT IT WAS NOT SAFE TO RETURN THE CHILDREN TO A.T.'S PHYSICAL CUSTODY.
A. THERE WAS NOT ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE TO SUPPORT THE JUDGE'S DECISION.
B. THE JUDGE IMPROPERLY ENGAGED IN A BEST INTERESTS ANALYSIS IN PLACING THE CHILDREN WITH THE FATHER, CONTRARY TO THE HOLDING IN G.M.
C. THE JUDGE IMPROPERLY RELIED ON A DOUBLE HEARSAY OPINION FROM A REPORT NOT ADMITTED INTO EVIDENCE, THEREBY SIGNIFICANTLY PREJUDICING A.T. AND PRECLUDING APPELLATE REVIEW OF THE JUDGE'S DECISION.
D. [THE DIVISION] FAILED TO PROVIDE A.T. REASONABLE EFFORTS TO REUNITE HER WITH HER CHILDREN.
POINT III
A.T. WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
I.
The definition of an abused or neglected child includes a child whose parent "commits or allows to be committed an act of sexual abuse against the child." N.J.S.A. 9:6-8.21(c)(3). An abused or neglected child may also be one whose condition (either physical, mental or emotional) is
in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof[.]
[N.J.S.A. 9:6-8.21(c)(4) (emphasis added).]
Thus, "[a] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999).
Our review of a trial judge's finding of abuse or neglect is limited. Initially we defer to the trial court's determinations "'when supported by adequate, substantial, credible evidence.'" N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). The trial court is best suited to assess credibility, weigh testimony and develop a feel for the case. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010). We extend special deference to the Family Part's expertise. Id. at 343; Cesare, supra, 154 N.J. at 413. Deference is not owed, however, if the findings are "so wide of the mark as to be 'clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Formosa v. Equitable Life Assurance Soc'y, 166 N.J. Super. 8, 20 (App. Div.), certif. denied, 81 N.J. 53 (1979)).
We are satisfied Judge Haines' findings are supported by substantial, credible evidence in the record. A.T. was aware of L.R.'s drug use and she suspected there was something going on between L.R. and the children. Despite this knowledge, her method to protect the children was locking them in their bedroom, knowing the door could be opened with a credit card. Additionally, A.T. left the children unattended with L.R. to "slow [him] down." These actions demonstrate A.T. failed to exercise a minimum degree of care when she unreasonably allowed harm to be inflicted upon them. She also acted unreasonably when she placed the boys in L.R.'s care.
"'[A]n ordinary reasonable person' would understand the perilous situation in which the [children] were placed[.]" N.J. Div. of Youth & Family Servs. v. A.R., 419 N.J. Super. 538 (App. Div. 2011) (holding that leaving an infant on a bed with blankets as a buffer to prevent the child's movement and closing the door amounted to gross negligence) (quoting N.J.S.A. 9:6-8.21(c)). A.T. understood the danger posed by her children's exposure to L.R. but failed to take appropriate measures to protect them. Consequently, the conduct amounted to gross negligence, which was not ameliorated by her finally taking the children to the hospital and reporting the suspected abuse.
Likewise, there is substantial credible evidence to support the judge's finding that it was not safe to return the children to A.T. The judge found that even though A.T. ended her relationship with L.R., it was A.T.'s poor decision-making that put the children in danger, which A.T. continued to exhibit, as evidenced by her decision to live with her mother, who previously abused her and left her alone to be sexually molested by more than one man with whom her mother had been involved. Based upon these facts, the court determined it was not safe for the children to be returned to their mother.
Given the "family courts' special jurisdiction and expertise in family matters," we should accord deference to the fact-findings here. Cesare, supra, 154 N.J. at 413. The determinations are not '"so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting J.T., supra, 269 N.J. Super. at 188).
II.
As to A.T.'s claim the court improperly engaged in a best interests analysis, we are satisfied this contention is completely lacking in merit. After determining the children could not be safely returned to their mother, the court determined another disposition was appropriate. In deciding this, the court undertook a best interest analysis.
"[T]he court has multiple alternatives in determining the appropriate disposition." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 4000 (2009). One alternative is to place the child with "'a relative or other suitable person,'" Ibid. (quoting N.J.S.A. 9:6-8.54(a)). "Placement" is not defined in Title Nine, but the Supreme Court has held it to include a non-custodial parent, such as the father here, as "a relative or other suitable person" with whom the Division was authorized to place the child. Id. at 403 (citing N.J.S.A. 9:6-8.54(a)).
"[D]ue process requires a judge transferring custody in a Title 9 action to a parent who did not have custody when the child was removed to apply the standards applicable in private custody disputes set forth in N.J.S.A. 9:2-4." N.J. Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 106 (App. Div. 2010).
It was only after the court determined that it wsa not safe to return the children to A.T. that it undertook the best interest analysis to determine whether the children should be placed with J.H. We are satisfied the judge followed the proper steps in determining placement. Ibid. (holding that due process requires a judge transferring custody in a Title 9 action to a non-custodial parent to apply the standards applicable in private custody disputes set forth in N.J.S.A. 9:2-4, including the best interest analysis).
III.
Next, we agree the opinions expressed by Dr. Miriam Kazansky Horn, as conveyed by Division caseworker Cheryl Pride, constituted inadmissible hearsay under N.J.R.E. 802 and should not have been considered by the court. However, there was no objection to this testimony. Therefore, we review the claimed error under the plain error standard and conclude the admission of this evidence was not clearly capable of producing an unjust result. R. 2:10-2. As we have already noted, there was other substantial, competent evidence to support the judge's findings.
IV.
A.T. argues further that reversal is warranted because the Division failed to assist her in finding suitable housing, an issue A.T. claims surfaced for the first time during the dispositional hearing on September 30. As J.H. points out in footnote 12 of the brief submitted on his behalf, the Division "mentioned A.T.'s history of unstable housing as an issue as early as October 4, 2010." What was said by counsel for the Division at that time, however, warrants recitation: "[S]he should have six months of stable community-based housing before reunification could be considered. She has a history of unstable housing and of domestic violence." Notwithstanding this recommendation, there is absolutely no evidence in the record the Division made any effort to assist A.T. with housing. Rather than specifically respond to this omission, the Division, in its brief, lists the services it did provide, none of which were challenged by A.T.
If the Division was seeking to return the children to A.T., presumably, its efforts should have included an affirmative effort to assist A.T. in securing suitable housing. DYFS v. J.Y., 352 N.J. Super. 245, 263 n.9 (2002) (holding that the Division has the obligation to provide services to assist in finding suitable housing). This is especially true when the housing issue later becomes a major concern of the Division in returning the children to A.T., as evidenced by the very beginning of the closing argument by the Division's counsel, after defense counsel, during summation, argued A.T. had complied with the services provided:
Judge, the one thing that the [c]ourt can look at today with certainty is these children do not have a safe and stable home to go to. There's no evidence that she has adequate housing, that these children would have a place to lay their head at night, where they will be safe and secure.
The complete absence of any evidence of efforts to assist A.T. in obtaining suitable housing would understandably lead A.T. to conclude the Division was not acting reasonably in its efforts to assist her in reuniting with her children. Notably, however, there is no evidence in the record that A.T. sought the Division's assistance in securing suitable housing.
Despite our expressed concerns with the lack of housing assistance provided by the Division, the judge's determination that it was not safe to return the children to A.T. was not based solely on this issue. The judge also focused upon the absence of any recommendation from any expert, including A.T.'s expert, that reunification take place. While Dr. Bogacki testified he found no current risk factors impeding A.T.'s ability to parent her child, his opinion was reached without any knowledge of her difficulties with her mother, with whom she planned to live. Judge Haines additionally considered A.T.'s need for continued counseling and her decision-making, evidenced by her choice to reside with her mother, who she accused of being physically and emotionally abusive. Therefore, the Division's failure to affirmatively assist A.T. in obtaining housing would not have altered the outcome.
V.
Finally, A.T. claims defense counsel was ineffective because he failed to make clear the extent and unsupervised nature of the visits the Division permitted her mother to have with the children and also failed to adequately address the Division's position that it had no concerns as to J.H.'s ability to parent the children. We reject both contentions.
In D.Y.F.S. v. B.R., 192 N.J. 301, 309 (2007), our Supreme Court held the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), governing criminal proceedings are applicable in termination proceedings. Ineffective assistance of counsel is established with proof that (1) counsel's performance fell outside "the broad range of professionally acceptable performance; and (2) counsel's deficient performance must prejudice the defense — i.e., there must be 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" B.R., supra, at 307, citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard in New Jersey).
Applying that standard here, we find no evidence of ineffective assistance of counsel. First, the court was aware that the children were visiting their maternal grandmother. The issue, however, was not how often or the extent of the visitation but A.T.'s plan to live with her mother, having accused her mother of abuse. The court found A.T.'s decision to do so reflected a continuation of A.T.'s poor decision-making. Second, the record demonstrates defense counsel's aggressive and persistent attempt to demonstrate J.H.'s purported efforts to sabotage reunification between A.T. and the children. In addition, defense counsel argued that, inexplicably, J.H. had not complied with the recommendation that Ja. T. be in daycare, and the absence of any evidence surrounding J.H.'s living arrangements with his mother. Thus, we discern no evidence in this record of legal advocacy on the part of defense counsel that so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, supra, 466 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION