DCPP VS. P.S., IN THE MATTER OF THE GUARDIANSHIP OF B.S. (FG-12-0054-16, MIDDLESEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 binding only 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-0804-17T4
NEW JERSEY DIVISION OF
CHILD PROTECTION AND
PERMANENCY,
Plaintiff-Respondent,
v.
P.S.,
Defendant-Appellant.
_____________________________
IN THE MATTER OF THE
GUARDIANSHIP OF B.S.,
a Minor.
_______________________________
Argued October 11, 2018 – Decided January 7, 2019
Before Judges Nugent, Reisner and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex County,
Docket No. FG-12-0054-16.
Michael J. Confusione argued the cause for appellant
(Hegge & Confusione, LLC, attorneys; Michael J.
Confusione, of counsel and on the briefs).
Michael A. Thompson, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Michael A.
Thompson, on the brief).
Rachel E. Seidman, Assistant Deputy Public Defender,
argued the cause for minor (Joseph E. Krakora, Public
Defender, Law Guardian, attorney; Rachel E. Seidman,
on the brief).
PER CURIAM
Defendant, P.S., appeals from a June 29, 2017 guardianship judgment
terminating her parental rights to her child, now age four. She contends the
Division of Child Protection and Permanency (the Division) failed to prove by
clear and convincing evidence that terminating her parental rights was in the
child's best interests, the standard codified in N.J.S.A. 30:4C-15.1(a). She also
contends the trial court erred by permitting prejudicial hearsay testimony at the
guardianship trial and by allowing her to represent herself, even though she had
been declared incompetent to stand trial on criminal charges. The Division and
the Law Guardian oppose the appeal. We affirm.
The Division became involved with P.S. in April 2014, two days after she
gave birth by C-section. P.S. left the hospital at 2:00 a.m. against medical advice
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after complaining about the hospital rooms and telling hospital personnel she
wanted to get a good night's sleep. Medical personnel reported P.S. was
presenting as manic and exhibiting disassociated behavior. They were
concerned because her thought process was incoherent, her affect was flat, and
she left the hospital without bonding with the newborn and without concern the
baby would remain in the hospital. When a Division caseworker interviewed
defendant during the afternoon of the day she left the hospital, defendant refused
to undergo a psychological evaluation.
One week after the child's birth, the newborn was cleared for discharge.
The Division took physical custody of the child, filed a verified complaint for
custody under Title 9 and Title 30, and notified defendant of the date, time, and
place of the Dodd hearing.1 Two days later, the court upheld the Division's
emergency removal of the child, ordered the Division to maintain care, custody
1
"A '[DODD] removal' refers to the emergency removal of a child . . . without
a court order, pursuant to the Dodd Act, which ... is found at N.J.S.A. 9:6–8.21
to –8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd
in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609
n. 2 (App. Div. 2010). When the Division removes a child from a parent's care
on an emergent basis, the Family Part must "hold a hearing on the next court
day, whereby the safety of the child shall be of paramount concern...." N.J.S.A.
9:6–8.31.
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and supervision of the child, ordered supervised visitation, and ordered that
defendant undergo a psychological evaluation.
During the next six months, the court dismissed the Title 9 portion of the
litigation. The court continued to order, and the Division continued to make
available, a variety of services to defendant. The services included supervised
visitation through Middlesex County Supervised Visitation, Catholic Charities
Therapeutic Visitation, and Rutgers' University Behavioral Health Care —
Children At Risk Resources and Intervention Program (CARRI). Defendant was
also offered counseling and parenting skills development. Defendant failed to
complete any of the programs and services offered to her.
In April and June 2014, defendant was arrested, the first time for a
disorderly persons offense, the second time for refusing to allow police to enter
her home. On the second occasion, police were responding to the report of a
small fire. Following the incident, they took plaintiff to a hospital emergency
room due to concerns about her mental condition. She was released.
During this time, defendant also underwent psychological evaluations by
Dr. Alan Gordon in April and August, 2014. She underwent a psychiatric
evaluation by Dr. Samiris Sostre in April 2015.
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Throughout the proceedings, defendant was represented by counsel. That
changed in January 2015, when she appeared in court pro se. In April 2015, the
Division learned defendant had been arrested in March and charged with simple
assault, defiant trespass, obstruction, and resisting arrest. Following her arrest,
she was referred for psychiatric screening. Nonetheless, she continued to insist
on representing herself.
Due to defendant's non-compliance with treatment and services, the
Division requested approval of a permanency plan of termination of parental
rights followed by adoption. The court approved the plan in May 2015.
In October 2015, Edison Police arrested defendant and charged her with,
among other offenses, aggravated assault, eluding police, and hindering
apprehension. She was taken to the county jail and eventually transferred to
Anne Klein Forensic Center due to her deteriorating mental health. She
remained there at the time of the guardianship trial.
During the next several court proceedings, defendant was represented by
counsel. Nonetheless, defendant violated a court order to cooperate in an
evaluation by a psychologist, Dr. Karen D. Wells. In March 2016, a month
before the guardianship trial, defendant asked that her counsel be relieved and
that she be permitted to represent herself. Concerned with her competency, the
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court ordered a competency evaluation. The court also permitted her attorney
to withdraw as counsel.
Dr. Wells determined defendant was competent to proceed with the
guardianship trial and represent herself. In her report to the court, Dr. Wells
explained:
[Defendant] possesses: (1) the capacity to appreciate
the concerns and matters at hand; (2) the capacity to
appreciate the range and nature of possible
outcomes/consequences; (3) the capacity to understand
the adversary nature of the legal process; (4) the
capacity to disclose to counsel facts pertinent to the
proceedings at issue; (five) the capacity to manifest
appropriate courtroom behavior; and (6) the capacity to
testify relevantly. Additionally, she understands that if
the court grants the Division's . . . petition to obtain
guardianship of [her child, the child] will become
eligible for adoption.
Dr. Wells stated that given defendant's "reported psychiatric concerns, behaviors
and uncooperative manner with assigned counsel, it is opined that she is limited
as it relates to her ability to cooperate and engage in those proceedings without
aid, assistance, and the participation of an assigned guardian ad litem to
neutrally represent her best interests."
The court followed Dr. Wells' advice and appointed a guardian ad litem,
an attorney, for defendant. During a March 2017 proceeding, the guardian ad
litem informed the court defendant was capable of representing herself at trial.
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According to the guardian ad litem, the defendant was aware of her right to
either obtain private counsel or apply for assistance from the Public Defender
but she insisted on representing herself.
The guardian had discussed the case with defendant and found her to be
cooperative, lucid, focused, and articulate. He thought she had the intelligence
to represent herself. She understood the complaint's allegations and that she
would lose her parental rights if she did not prevail. The guardian noted
defendant was very familiar with the facts of the case, had lived it, and thought
she could best present her case. The guardian urged defendant to accept the
assistance of standby counsel, and he said she was now willing to accept such
assistance.
After hearing from the guardian ad litem, the court conducted a lengthy
colloquy of defendant, asking questions about her background, her decision to
represent herself, her understanding of the issues in the case, her understanding
of legal procedure, and her understanding of the role the "standby" attorney
would play if the court permitted defendant to represent herself. The court then
delivered a comprehensive opinion from the bench in which it determined
defendant was competent and capable of representing herself with the assistance
of standby counsel as needed. The court appointed counsel to assist defendant.
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Before the guardianship trial commenced, the court appointed another guardian
ad litem to assist defendant. Standby counsel and the guardian were present
throughout the trial.
During the guardianship trial, the Division presented the testimony of a
case worker and Dr. Wells. The Division also presented eighteen documentary
exhibits exceeding four hundred pages.
Dr. Wells, the only expert witness to testify, relied upon, among other
records, the reports of the psychologist and psychiatrist who had examined
defendant. Dr. Wells opined that due to "the absence of sound capacity for
judgment, decision-making, the ability to engage in cooperative and
collaborative efforts with others, to follow through, to take the advice and
counsel," defendant's lack of psychological stability hindered her capacity to
parent.
Dr. Wells also testified, based on her bonding evaluation of defendant's
child and a paternal aunt, the child had bonded with the aunt and considered the
aunt a psychological parent. Given these considerations, and also considering
the then three-year-old child had been bonding with the aunt for nearly fourteen
months, separating the child from the aunt would, in the doctor's opinion, result
in the child experiencing regressive behavior similar to that which accompanies
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a child grieving a lost parent. The child would experience a profound sense of
bewilderment. According to the doctor, no clinical evidence suggested
defendant would be able to ameliorate the harm to the child caused by separation
from the aunt. In the doctor's opinion, adoption of the child by the paternal aunt
was clinically supported and in the child's best interests.
Defendant presented more than twenty exhibits and the testimony of one
witness, a friend. The witness testified to those qualities a good mother should
possess. During the time she had known defendant, she found defendant
"seemed very intelligent . . . and interesting to talk with and friendly." The
witness also believed defendant to be trustworthy.
Following the guardianship trial, Judge Bruce J. Kaplan issued a
comprehensive written decision in which he concluded the Division had clearly
and convincingly proved that termination of defendant's rights would best serve
the interests of the child. Judge Kaplan methodically analyzed each of the four
statutory sections underlying the best interests standard. Following Judge
Kaplan's filing of the implementing order, defendant appealed.
On appeal, defendant argues:
I. THE FAMILY JUDGE ERRED IN RULING THAT
THE DIVISION OF CHILD PROTECTION AND
PERMANENCY HAD PROVEN BY CLEAR AND
CONVINCING EVIDENCE ALL FOUR CRITERIA
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FOR TERMINATION OF P.S.'S PARENTAL RIGHTS
PURSUANT TO N.J.S.A. 30:4C-15.1(A)(1)
THROUGH (4).
A. The family court violated P.S.'s right to
assistance of counsel by permitting P.S. to represent
herself at the guardianship trial even though P.S. had
been deemed incompetent to stand trial in the criminal
case pending against her at the same time (plain error;
not raised below).
B. The family judge improperly admitted and relied
on hearsay reports and records that the Division did not
demonstrate met the admissibility requirements of New
Jersey law.
C. The Division failed to prove harm under prong
one by clear and convincing admissible evidence
presented at trial.
1. The family court said that the Division
"established" that B.S. "had been neglected
by P.S. as she created a substantial risk of
physical injury/environment injurious to
health and welfare by virtue of her
departure from the hospital against medical
advice in the middle of the night,
effectively abandoning B.S."
2. The court said that "concerns around
P.S.'s mental health have persisted since
the time of B.S.'s birth."
3. The court said P.S.'s "lack of
cooperation and inability to take advice
meant to protect B.S. from harm was
demonstrated repeatedly throughout her
visitations."
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4. The court said that evidence of harm was
shown by P.S.'s "current and foreseeable
incarceration" which "preclude her from
parenting B.S. in any capacity."
D. The Division failed to prove prong two.
E. The Division failed to prove reasonable efforts
under prong three.
F. The Division failed to prove that termination
would not do more harm than good under prong four.
G. Terminating P.S.'s parental rights for "mental
health concerns" without considering the countering
expert opinion of psychiatrist Dr. Saraiya failed to
ensure a complete and balanced presentation of all
relevant and material evidence sufficient to enable the
family court to make a sound determination consistent
with the child's best interests.
We affirm, substantially for the reasons expressed by Judge Kaplan in his
thorough and thoughtful opinion. We add only the following comments.
Our Supreme Court has recently determined that a parent has the right to
represent himself or herself in an action to terminate parental rights. N.J. Div.
of Child Prot. & Permanency v. R.L.M. & J.J., ___ N.J. ___ (2018) (slip op. at
2). The right is not without limits:
The parent's right of self-representation, however, is by
no means absolute. That right must be exercised in a
manner that permits a full and fair adjudication of the
dispute and a prompt and equitable permanency
determination for the child. The parent must inform the
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court of his or her intention to appear pro se in a timely
manner, so as to minimize delay of the proceedings. He
or she must invoke the right of self-representation
clearly and unequivocally. In the event of such an
invocation, the court should conduct an inquiry "to
ensure the parent understands the nature of the
proceeding as well as the problems she may face if she
chooses to represent herself." In re Adoption of a Child
by J.E.V. and D.G.V., 226 N.J. 90, 114 (2016). The
judge should take appropriate steps, which may include
the appointment of standby counsel, so that the parent’s
decision to represent himself or herself does not
disrupt the trial.
[Id. at 4].
Here, though the guardianship trial took place before the Supreme Court decided
R.L.M. & J.J., Judge Kaplan took the protective measures the Supreme Court
would later recommend, including the appointment of standby counsel.
Defendant now claims she should not have been permitted to represent
herself because before the guardianship trial began, she had been declared
incompetent to stand trial for the pending criminal charges. But defendant has
submitted no reports or medical testimony concerning the basis for that
determination. Rather, she grounds her argument on remarks the judge made at
the inception of the guardianship trial. Those remarks indicated only that at
some time defendant had been declared incompetent to stand trial in the criminal
matter, apparently because she had stopped taking her medication.
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Given the safeguards the judge implemented to protect defendant's rights,
and based on our consideration of the trial record, we discern no abuse of
discretion. See In re Civil Commitment of D.Y., 218 N.J. 359, 376-77 n.5 (2014)
(citing State v. Ehrenberg, 284 N.J. Super. 309, 315 (Law Div. 1994) ("When a
bona fide doubt is raised as to the competence of a mentally ill defendant to
proceed pro se, counsel should be appointed to aid in the competency
determination, as well as to assist the defendant in trying the case.")). The judge
acted well within his discretion when he struck the delicate and difficult balance
of assuring defendant received due process while protecting the child's need for
permanency.
Affirmed.
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