NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. L.B., Defendant–Appellant. ————————————————————————————————— IN RE: M.V. AND N.V.,
Defendant L.B. (Linda) 1 appeals from the June 15, 2012 Family Part order dismissing litigation regarding her now twenty-one-year-old son, M.V. (“Mark”) who had been in the custody of plaintiff New Jersey Division of Child Permanency and Protection (the Division) or its predecessor 2 since the age of seventeen. Mark, who has a pervasive developmental disorder, continues to live in a residential treatment facility. For the reasons that follow, we affirm.
Linda is the mother of Mark, born in November 1992, and Nate, born in June 1997; 3 Linda is also the biological mother of an adult daughter, M.F. (Mary), from a previous marriage. The boys' father died in 2001. Mark's doctors diagnosed him as autistic and suffering from attention deficit hyperactive disorder (ADHD).
The Division's involvement with the family began in 1996 when it received numerous referrals alleging improper supervision, along with sexual, physical, emotional, and verbal abuse, and educational and medical neglect. The Division became involved again in February 2008 following a referral alleging Mary's physical abuse of Mark and Nate, and Linda's inability to care for the children because she was bedridden.
The Division investigated the referral and found the family's residence cluttered but without safety hazards. Both children advised the worker that Mary throws objects at them, but had not yet hit them. Linda further confirmed that she called the police on Mary.4 After investigating this incident, the Division determined the allegations of physical abuse and neglect were unfounded.
In April and September 2008, the Division received additional referrals concerning the boys, particularly citing the fact that Nate was not receiving the proper at-home school instruction due to the deplorable conditions at the home; Nate suffered from gastrological problems preventing him from attending school. In October 2008, Linda agreed to accept counseling and support services from Family Preservation Services (FPS), but then both she and Mary refused to submit to psychological evaluations. Linda reported that she could not get out of bed due to problems with her legs. At this time, Linda also reported Mary had stopped attending her partial day program for managing her bipolar disorder. In December 2008, the Division received a discharge summary report from FPS noting Linda and Mary had made improvements but still recommended further services for the family, including a step-down program to ensure continued success.
In January 2009, the caseworker spoke with Mary's mental health professionals from her partial day program who reported her compliance with the program was poor. The program further relayed that Mary had disclosed having physical altercations with Mark at home. The caseworker then expressed concern that Mary, who struggled with bipolar disorder, was caring for the children because Linda was bedridden.
The Division also received referrals concerning Mark's poor school attendance. Notably, his absences were not accompanied by doctor's notes and were not excused. By February 2009, Mark had missed forty-five days of school since the beginning of the school year. Nate also continued to have truancy problems and his school became increasingly frustrated with Linda's inability to participate in phone meetings to address the situation because she could not physically get out of bed. Following up with Nate's health care, the Division noted Nate was seeing seven specialists and was receiving treatment for hypertension, asthma, gastro-intestinal issues, and esophagitis. Despite these medical issues, he was cleared to attend school; however, his truancy continued.
On February 24, 2009, the Division filed its first verified complaint, pursuant to N.J.S.A. 9:6–8.21(c) and N.J.S.A. 30:4C–12, asserting Linda had failed to adequately provide for her sons, Mark and Nate, although financially able to do so, thereby exposing them to a substantial risk of injury. At that time, the Division sought care and supervision of both Mark and Nate.
On February 27, 2009, during the first of many hearings, the Division case manager testified the boys were safe but there were concerns about both children's truancy and their health; the Division had further concerns that Mary was their primary caregiver. The judge entered an order placing “the children ․ in the immediate care and supervision of the Division.”
Importantly, on June 5, 2009, the court conducted a fact-finding hearing in which Linda participated by phone. To resolve the matter, Linda's attorney offered a stipulation that it was necessary for the Division to become involved with the family because of education deficiencies, primarily regarding Nate. Linda acknowledged that she understood the consequences of the stipulation and the Title 30 finding. The judge subsequently accepted the stipulation and found by a preponderance of the evidence that Linda and her children were a family in need of services, pursuant to N.J.S.A. 30:4C–12.
At a hearing held on August 13, 2009, in response to an amended complaint filed by the Division seeking custody and removal of Mark and Nate under Title 30 and Title 9, Linda again participated by telephone because she was “not able to stand on her feet” and could not be physically present. Nate testified about his medical problems and the fact that he had not been to school in a long time. He further stated his mother does not leave her hospital bed at home although she does often check on him. Dr. Steven Rushford, the boys' pediatrician, testified that Nate was morbidly obese and as a result suffered from Type 2 diabetes. He concluded that Nate's obesity was due to “out of control” food portions and the consumption of greasy, fried foods, and fast food. Dr. Rushford also noted that the entire family was obese and that Nate's home environment made it very difficult for him to lose weight.
On August 20, 2009, the Division requested the court place the custody application on hold based on Linda's agreement to sign a service plan. The court agreed but made it clear that
if at this particular juncture [the children] are not removed, this is essentially a one-shot deal because if things do [not] change radically within a short period of time, ․ we are going to put the whole case on, and the [c]ourt will make a decision about the children remaining in the home because this has gone on and the testimony thus far gives rise to grave concerns for the health of [Nate and Mark].
On September 16, 2009, the court was informed that Linda missed her court-ordered psychological evaluation. Linda's counsel explained she was prevented from going because the medical transport worker was not strong enough to lift her. However, on October 5, 2009, a Division case manager told the court Linda said she had no intentions of attending the psychological evaluation. Both children continued to miss school throughout September and October 2009.
In September 2009, the Division followed up with the family after Linda contacted the police several times regarding fights between Mary and Mark. At this time, the Division again noted Linda refused to attend psychiatric evaluations.
On November 2, 2009, Linda called the local police twice reporting both Mark and Mary were “out of control.” Mary was subsequently arrested and Mark was taken to the hospital for a psychiatric evaluation. Division caseworkers followed up with Linda, observing the home was “extremely cluttered.” Linda confirmed that Mark and Mary were arguing and that Mary threw “a box of wipes” at Mark, which prompted Linda to call the police.
On November 17, 2009, the Division received a referral asserting Linda reported to the Division of Developmental Disabilities (DDD) that she wanted Mark out of the home due to his erratic behavior. When the Division investigated, Linda denied this, but admitted she had requested paperwork from DDD to apply for guardianship of Mark when he turned eighteen years old. Linda stated she felt “his placement somewhere else is inevitable” because she “needs help in the home” with Mark. On the same day, Mark told a Division worker that Linda keeps “threatening to kick him out or put him in a DDD home far away where no one could find him.”
On December 2, 2009, Mark was admitted to the Monmouth Medical Children's Psychiatric Unit because he was experiencing auditory hallucinations. Mark reported to a Division caseworker he felt angry because Linda did not give him his antipsychotic medication, which caused him to hear voices again and feel paranoid. Linda denied these accusations; however, hospitals records reflected below normal levels of lithium in Mark's urine. He additionally expressed a desire to live “somewhere else” with Nate.
On December 11, 2009, the court held an order to show cause hearing after the Division filed a third amended verified complaint for custody, care, and supervision of the children. During the hearing, Dr. Sajjad Zaidi, Mark's treating pediatric psychiatrist, testified regarding Marks's time in the psychiatric unit, noting he has a pervasive developmental disorder (PDD), major depressive disorder, and bipolar disorder. Additionally, he described Mark as obese with high blood pressure. Dr. Zaidi testified Mark would be released from the unit in the near future and opined that Mark would be more emotionally stable if he lived with his grandmother; accordingly, he recommended that Mark not return to his mother for his own stability.
During this hearing, Dr. Delfin Ibanez testified regarding his in-home psychiatric evaluation of Linda. Dr. Ibanez stated Linda complained of physical and neurological symptoms, but he found no medically identified reasons for her loss of leg function. Rather, he opined that her incapacity was due to social distress and psychological factors. Additionally, Dr. Ibanez stated in his report that he is concerned with “the fact that [Linda] is not able to acknowledge any present or potential negative impact on the children, she is therefore unable to take any steps to mitigate these issues, thereby limiting the children's ability to thrive.” Dr. Ibanez recommended Linda engage in psychotherapy in conjunction with antipsychotic medication to address her psychological issues. Dr. Ibanez further opined, to a reasonable degree of psychiatric certainty, that Linda's psychiatric issues were negatively affecting her parenting abilities and harming the children, and that Linda was in denial about the psychiatric conditions of her children and herself and her own reality. Ultimately, Dr. Ibanez recommended against the boys remaining in the home with Linda.
On December 17, 2009, a learning consultant from Mark's school testified to his truancy problems which were detrimental because he was “missing the educational component and ․ missing ․ the counseling component and strategies to help him overcome his disability and be able to ․ acclimate himself to the community.” Once again, the court permitted Linda to appear telephonically.
The order to show cause hearing continued on December 18, and again on December 21, 2009, when Linda testified on her own behalf, denying her home environment was chaotic but admitting Mark would often get angry. Further, despite the seventeen calls she made to the police between October and December 2009, Linda stated she had not called the police “recently” over altercations between Mark and Mary; she noted the last call was on December 1, 2009. Regarding her sons' absences from school, Linda indicated medical reasons for both boys and said she had always provided the school with doctor's notes. She denied having any mental health issues and continued to make excuses for failing to attend her first two psychiatric evaluations, stating the medical transport team did not know “how to maneuver me because my legs are bent.”
On December 22, 2009, the court granted the Division custody of Mark and Nate and ordered both boys to live with their maternal grandmother (Judy), which was “necessary to avoid an ongoing risk to the life, safety or health of the children.” The judge based this determination on the collateral information received from Dr. Ibanez and Dr. Zaidi and the boys' “excessive absences from school.” The court determined that the Division had made reasonable efforts to prevent placement, and further ordered DDD to provide in-home services to Mark, including a behaviorist and a home health aide, while he lived with Judy.
At a hearing on January 7, 2010, the Division advised the court that Judy was having difficulty with the boys; Linda again participated in the hearing by telephone. The Division notified the court that DDD was looking for a potential treatment home for Mark. At that time and with the court's approval, the Division placed Nate with a special home service provider (SHSP) and Linda was granted a two-hour visitation each week.
Additional compliance hearings were held on February 17, 2010 and March 29, 2010, during which the Division informed the court that Nate was doing well in his placement and losing weight; Mark was still receiving in-home services from DDD at Judy's home but also frequently argued with her. The parties returned to court again for a compliance review hearing on July 8, 2010 and the Division advised that Devereux Treatment Home (Devereux) was under consideration as a potential placement for Mark, as well as in-home psychiatric services for Linda.
At the next compliance review hearing on September 15, 2010, the Division informed the court that Mark had been hospitalized after engaging in a physical altercation with Judy. After his discharge from the hospital, Mark was placed at Devereux and was doing well. Nate was also thriving in his SHSP home. Additionally, at this hearing, Mark's Law Guardian stated that because Mark would turn eighteen years old soon, he needed a guardian to make education decisions for him.
On November 10, 2010, the court ordered the Division to conduct a competency evaluation of Mark, which was scheduled for December 7, 2010. Following the evaluation, and even though Mark had already turned eighteen on November 13, 2010, a permanency hearing was held on December 13, 2010. No testimony or evidence was submitted on this date. However, the court approved the Division's permanency plan that Mark would continue to receive long-term specialized care at Devereux. The court also ordered “DDD to continue to investigate the appointment of ․ a guardian” for Mark.
On March 16, 2011, the court accepted the Division's permanency plan of “long-term specialized care” for Mark, based upon how well he had been doing at Devereux and the results of the competency evaluation, which found Mark needed individualized specialized care. Prior to the court proceeding, the judge met with all counsel, including Linda's attorney, in chambers. This meeting resulted in an agreement among counsel, which was then placed on the record and approved by the court.
At the next permanency hearing on June 20, 2011, the court dismissed the guardianship complaint as to Nate, over the Division's objection, because the Division was still searching for a service provider who could provide in-home mental health services for Linda. The court appointed a guardian ad litem for Mark, as requested by his Law Guardian.
On August 18, 2011, the court approved a kinship legal guardianship (KLG) plan for Nate with his half-sister (Jane), and her husband.5 The court again approved the Division's previously-agreed-upon permanency plan of long-term specialized care for Mark at Devereux, without objection. This order noted that it was not safe for the children to return home to Linda in the foreseeable future because she “has not completed services surrounding mental health issues and [Mary] has mental health issues for which she is not complying with treatment or medication.”
On the October 17, 2011 and January 9, 2012 compliance review hearings, there were no objections to Mark's continued placement at Devereux, or to Nate's KLG placement. On May 14, 2012, Mark's Law Guardian informed the court that Devereux anticipated discharging Mark in June 2012. The court ordered Mark not to be removed from Devereux without a further court order; the court additionally ordered continued efforts to appoint Jane as Mark's legal guardian.
At a summary hearing on June 15, 2012, the court ordered Mark's continued residential placement at Devereux, and required Mark to continue with the DDD guardianship process with Jane. This time Linda objected to Mark remaining at Devereux. The court dismissed the FN litigation.
Significantly, on August 6, 2012, a judgment was entered by the Chancery Division—Probate Part determining Mark to be “an incapacitated person ․ unable to govern himself and manage his affairs” and appointing his half-sister Jane as guardian of his person. On August 13, 2012, an FC summary hearing was held and the court entered an order providing for Mark to remain at Devereux. On August 14, 2012 Linda filed a notice of appeal. Thereafter, on January 14, 2013, Linda filed a notice of motion for a remand of the permanency hearing. On January 28, 2013, the motion for remand was denied.
On appeal, Linda presents the following arguments for consideration:
I. THE TRIAL COURT IMPROPERLY IMPINGED THE MOTHER'S CONSTITUTIONAL RIGHT TO THE CARE AND COMPANIONSHIP OF, AND HER PREROGATIVE TO DETERMINE THE TREATMENT MODULE APPROPRIATE FOR HER DEVELOPMENTALLY–DELAYED SON.
A. The Trial Court Improperly Approved A Permanent Plan Of Out Of Home Placement In An Institution, Relying Solely On Unmarked Information And Representations Of Counsel, Some Of Which Were Made Off The Record.
B. The Court Should Vacate The Finding Of Jurisdiction Under Title 30, Based On Linda's Stipulation, Because She Was Not Aware That Such Stipulation Would Permit The Court To Place Mark In An Institutional Setting Without Her Consent.
“The right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the United States and New Jersey Constitutions.” N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651–52, 92 S.Ct. 1208, 1212, 31 L. Ed.2d 551, 558–59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, “[t]he Legislature has declared that ‘[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.’ ” K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C–1(a)).
Parental rights are not absolute, however. “The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children.” Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). “The State has a basic responsibility ․ to protect children from serious physical and psychological harm, even from their parents.” E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347). Furthermore, the Legislature has declared that “the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit.” N.J.S.A. 30:4C–1(a).
Family courts that decide profound issues involving the welfare of children have special expertise and “appellate courts should accord deference to family court factfinding.” Cesare v. Cesare, 154 N.J. 394, 413 (1998). “Deference is especially appropriate ‘when the evidence is largely testimonial and involves questions of credibility.’ ” Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, we give particular regard to the family judge's “opportunity to make first-hand credibility judgments about the witnesses who appear on the stand” and his or her “ ‘feel of the case.’ ” E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
On appeal, Linda contends the court impinged her constitutional right to care for Mark, claiming she was unaware that her 2009 stipulation could result in Mark's placement in a long-term treatment facility. Further, Linda claims the trial judge erred in failing to conduct an evidentiary hearing to determine whether she was unfit to exercise her parental rights to decide what is best for her son. We find her contentions have no merit.
The record of the June 5, 2009 hearing reflects that Linda was represented by counsel and engaged in an extensive colloquy with the court regarding her Title 30 stipulation. The judge found Linda understood she was waiving her right to an evidentiary hearing and she agreed to the stipulation, knowingly and voluntarily.
Linda mistakenly asserts that the June 30, 2009 stipulation was the basis for Mark's placement in a long-term treatment facility. As noted earlier, there were major events that occurred after the June 30 stipulation, which led to the children's removal from her custody in December 2009. Linda fails to acknowledge these significant events. On December 2, 2009, Mark was admitted to a psychiatric unit because he was experiencing auditory hallucinations. At that time, Mark reported feeling angry, hearing voices and feeling paranoid; he further claimed Linda was not giving him his antipsychotic medication.
The court proceeded to hold an emergent hearing over four days where Linda was represented by counsel and permitted to attend the hearing by phone. The judge received extensive testimony from various witnesses. School officials testified about both sons' excessive absenteeism, with Nate and Mark having missed twenty-seven and twenty-eight days, respectively, during the first three months of school. The judge also heard testimony from Dr. Ibanez and Dr. Zaidi, as well as from Linda. As a result of this hearing, the judge granted the Division custody and the boys were placed with their grandmother.
With regard to the evidentiary hearing, Linda argues the trial court failed to hold an evidentiary hearing six months after its initial Title 30 finding to determine the appropriate permanent placement plan. Under Title 30, “[t]he Division's care and custody is intended to be temporary and the initial finding is not intended to extend beyond ‘six months from the date of entry.’ ” New Jersey Div. of Youth and Family Services v. J.C., 423 N.J.Super. 259, 267 (App.Div.2011) (quoting N.J.S.A. 30:4C–12). “When the Division's assessment of the family's status exceeds six months necessitating its continued custody of the child, then, as mandated in the statute, the Division must request a summary hearing and obtain a new court order ‘extend[ing] the time of the [original] order.’ ” Ibid. (alteration in original) (quoting N.J.S.A. 30:4C–12). Clearly, the four-day hearing that began on December 11, 2009 completely satisfied the requirement of the statute for a “summary hearing.” See N.J.S.A. 30:4C–12. Considering the testimony at the hearing, the court appropriately concluded that it would not be safe or in the best interests of the children for them to return to Linda, particularly when Linda refused to accept the services she needed.
Additionally, Linda argued she could not physically attend many court hearings because she was unable to stand and leave her hospital bed at her home. She additionally testified that she was unable to attend her mandated psychiatric evaluations because she was unable to get out of bed. Thus, based upon its review of all relevant material, the court reasonably concluded Linda could not provide the individualized care Mark required, and Mark was doing well at Devereux, which could provide the necessary high level of care.
Furthermore, Linda's objection to Mark's long-term plan for individualized care is barred by the equitable doctrine of laches which “applies when a party sleeps on her [or his] rights to the harm or detriment of others.” N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 445 (2012) (citing Fox v. Millman, 210 N.J. 401, 417 (2012)). We will apply this doctrine and “ ‘deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party.’ ” Ibid. (quoting Fox, supra, 210 N.J. at 418 (citation omitted)).
In F.M., the Court held that a defendant must timely challenge whether the Division had the right to assume “care or custody” of a child, or risk application of the doctrine of laches. Id. at 445–46. In that case, the defendant was silent on the custody issues for the entire two-year duration of the guardianship matter, including a four-day guardianship trial. Id. at 446. Thus, in accordance with F.M., we may consider the “length of the delay in a party's assertion of the claim, the reasons given for the delay, and the changing conditions of either or both parties during the delay.” Id. at 445–46 (citation and internal quotation omitted).
Clearly, Linda neither objected to the Division's plan of long-term specialized care for Mark when the Division first proposed it in December 2010, nor at any of the many hearings that followed. Rather, Linda waited until June 5, 2012, when she filed her notice of appeal, to raise the issue of custody, despite her argument that the Division's grant of relief under Title 30 was valid only until December 5, 2009; indeed, the trial court held sixteen hearings between these two dates. Importantly, Linda provides no reason for her delay in raising this claim; she further does not provide a reason for failing to request a full hearing before this appeal.
Additionally, the Division, relying on good faith that it had care and custody over Mark, offered resources and services to both children and provided Mark with the necessary treatment at Devereux. The Division also tried to help Linda with her psychological needs, encouraging her to receive treatment, and providing transportation but she was unwilling to accept the services. Therefore, Linda “had a sufficient opportunity to assert her claim in the family court, and [the Division] proceeded in good faith, having no reason to anticipate the later challenge to ‘care or custody[.]’ ” F.M., supra, 211 N.J. at 445.
Before Mark turned eighteen, the Division was granted custody of him, though Linda's parental rights had not been terminated. We note Title 30 defines a child as “less than 18 years of age.” N.J.S.A. 30:4C–2(b).6 According to N.J.S.A. 3B:12–55, “[t]he authority and responsibility of a guardian of the person or estate of a minor terminate upon the death, resignation or removal of the guardian or upon the minor's death, adoption, marriage or attainment of 18 years of age․” Thus, even if Linda had a valid challenge to the court's award of custody of Mark to the Division, Linda's authority over Mark terminated when he turned eighteen on November 13, 2010. See N.J.S.A. 3B:12–55. However, given Mark's pervasive developmental disorder, he required a guardian, which was finally accomplished on August 6, 2012 when his half-sister Jane was appointed his guardian.
Nevertheless, Linda asserts she was denied an evidentiary hearing under Title 30 and because of this denial, she was deprived of her due process rights. We disagree because Linda was represented by counsel at every court hearing during the litigation and was permitted to appear by telephone; as a result, she was afforded due process. Notably, the March 16, 2011 permanency consent order was achieved following negotiations in judge's chambers which Linda's counsel attended. Although this negotiation occurred off the record, the settlement was placed on the record without objection. Specifically, neither Linda nor her attorney objected to Mark's placement, although she did affirmatively object to Nate's permanency plan.
Moreover, Linda never presented any rebuttal evidence or testimony to demonstrate Mark's placement at Devereux was not appropriate. Then, on January 19, 2012, the court issued another permanency order and again accepted the permanency goal of long-term specialized care for Mark at Devereux without objection from Linda. Following this reaffirmation of Mark's placement, Linda did not object.
Finally, prior to any possible reunification, Linda needed to engage in mental health services recommended by Dr. Ibanez to address her psychiatric and physical issues; however, she never accepted or participated in such mental health services. Because Linda refused to participate in these services, there was no basis for her attorney to request a hearing to determine whether it was safe or appropriate to return Mark to her care. Therefore, we find Linda's arguments lack merit, and accordingly, we discern no basis to disturb the Family Part orders under review.
1. FN1. We use fictitious names for defendant, her children and other relatives for ease of reference and to protect their privacy.
2. FN2. On June 29, 2012, the Governor signed into law A–3101, whichreorganized the Department of Children and Families, includingthe renaming of the Division of Youth and Family Services as theDivision of Child Protection and Permanency. L. 2012, c. 16,eff. June 29, 2012.
3. FN3. Nate's placement is not at issue in this appeal; however, we recount some events pertaining to Nate to the extent relevant to the proceedings involving Mark.
4. FN4. Mary had been diagnosed with bipolar disorder and was often non-compliant with her medication. On the day of the referral, Mary was taken to the hospital to stabilize her mood.
5. FN5. Notably, Linda's appeal does not challenge this appointment.
6. FN6. Nevertheless, N.J.S.A. 30:4C–2.3 requires the Division to continue providing services to those individuals between the ages of eighteen and twenty-one who reach majority while receiving services and who, as adults, have not elected to discontinue services.