NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. IN THE MATTER OF THE GUARDIANSHIP OF

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Superior Court of New Jersey, Appellate Division.

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff–Respondent, v. D.A.B., Defendant, B.W.M., Defendant–Appellant. IN RE: THE GUARDIANSHIP OF O.H.B.,

DOCKET NO. A–5054–12T4

Decided: April 9, 2014

Before Judges Reisner, Alvarez and Ostrer. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel;  Christopher M. Psihoules, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor O.H.B. (Melissa Vance, Assistant Deputy Public Defender, of counsel;  Lauren Humphrey, Assistant Deputy Public Defender, on the brief).

Defendant B.W.M. appeals the June 4, 2013 judgment terminating his parental rights in his daughter, O.H.B., born February 2008.1  For the reasons that follow, we affirm.

O.H.B. came to the attention of plaintiff New Jersey Division of Child Protection and Permanency (Division) as a result of reports that her mother, D.A.B., was caring for her while using illegal drugs.   In May 2011, the Division executed a Dodd removal 2 and placed the child with her maternal grandmother, with whom the child has since continuously resided.   The maternal grandmother wishes to adopt.

B.W.M., although provided with notice of the return date of the order to show cause after removal, did not appear.   This was the first of many absences from court hearings, as B.W.M. was present only once in the Title 9 abuse and neglect litigation, on March 23, 2012, and only once after the complaint for termination of parental rights was filed, at a compliance review hearing on September 5, 2012.   He was absent on the trial days, May 28 and 29, 2013, and on June 4, 2013, when Judge Linda Baxter rendered her decision in the matter.   B.W.M. was represented throughout.

Before the Division became involved with the family, D.A.B. obtained a Domestic Violence Act (DV) temporary restraining order against B.W.M. See N.J.S.A. 2C:25–28.   A court date for the issuance of a final restraining order was pending on February 23, 2010, when B.W.M. and the child's mother participated in a separate support and visitation hearing.   Both he and D.A.B. were pro se.   When Judge Famular was summarizing the parties' agreement on the record with the parties present in court, before the terms of visitation were placed on the record, B.W.M. interrupted and suggested that in exchange for waiving his right to visitation, D.A.B. waive her right to support.   She readily agreed.

B.W.M. said his daughter could “find [him] later in life,” and a consent order reflecting this arrangement was filed.   Incidental to B.W.M. waiving his right of visitation, the child's mother dismissed the DV complaint.   Because the judge handling the abuse and neglect matter was unaware of B.W.M.'s waiver, the initial May 13, 2011 order allowed B.W.M. “reasonable and liberal” visitation supervised by the child's maternal grandmother.

On May 30, 2012, Dr. Larry N. Seidman conducted a psychological evaluation of B.W.M., who disclosed a criminal history, including a domestic violence arrest involving D.A.B. sometime in January 2012, and a conviction for “embezzlement and simple assault,” for which he served “a few months in jail.”   Although B.W.M. admitted to prior substance abuse, he denied current usage and stated that he was taking one to two daily doses of Subuxone, a medication prescribed for opioid addiction.

After administering a number of tests, Seidman concluded that B.W.M. exhibited symptoms of bipolar disorder, panic disorder, generalized anxiety disorder, opioid dependence, antisocial personality disorder, narcissistic personality disorder, and histrionic and obsessive-compulsive personality disorder.3  Seidman opined, rather emphatically, that B.W.M.'s “credentials for visitation ․ [were] poorly conceived and inspired.”   He added that it would not be in O.H.B.'s best interests to have “even supervised visitations” with B.W.M., especially given the “pervasive and continuing” effects of B.W.M.'s psychological, psychiatric, and addictive problems.   Seidman also recommended a psychiatric evaluation, as well as weekly psychotherapy, to address B.W.M.'s chronic mood disorder, depression, anxiety, and panic attacks.

The order approving the Division's plan, for termination of parental rights followed by adoption, notes that B.W.M. had “only c[o]me forward recently.”   The order required him to participate in substance abuse treatment, submit to an additional mental health evaluation, and granted supervised visitation “once recommended by [his] therapist.”   In that same June 26, 2012 order, the Division was directed to file a complaint for termination of parental rights.

Carol Neff, a counselor at the Center for Family Services, conducted a drug evaluation on July 7, 2012, during which B.W.M. disclosed that he began using when he was twenty years old, although he was “evasive” about the specifics.   He admitted to prior heroin use and prescription drug abuse, specifically, Percocet.   B.W.M. had attended treatment for substance abuse ten years prior, after he accidentally overdosed on prescription medication, and had been hospitalized three times for drug overdoses.   He also acknowledged that he was hospitalized twice for unspecified psychological and emotional problems.   He drank every night and had worked only ten out of the last thirty days.

Neff described B.W.M. as “initially pleasant,” but noted that he later became “oppositional [and] irritable.”   He began “ranting” about his parental rights to O.H.B., insisting that he should have custody.   Neff concluded that B.W.M. had “poor insight,” poor judgment, and given his unwillingness to attend further substance abuse treatment, closed the case as a refusal.   B.W.M. tested positive for amphetamine and methamphetamine only four days later, on July 11, 2012.

On September 4, 2012, an employee at the counseling center B.W.M. had begun to attend called the Division, stating that because B.W.M. became “irate, yelling and us[ed] profanities” while in her office, she eventually had to ask him to leave.   The same day, the Division learned from the clinical supervisor of B.W.M.'s parenting class that the last session “culminat[ed] in [B.W.M.] leaving after cursing repeatedly and making angry accusations about the services provided.”   He was eventually discharged from the program because he stopped attending the parenting class altogether.

Despite appearing at the September 5, 2012 compliance review hearing, as we have said, B.W.M. failed to appear at the October 25, 2012 proceeding.   The Title 9 litigation was then formally dismissed.

B.W.M. was generally noncompliant with services offered by the Division.   For example, he missed at least two substance abuse evaluations scheduled during summer 2012;  attended only five of sixteen scheduled parenting sessions;  and refused substance abuse treatment.

The Division referred O.H.B. to counseling on September 30, 2012, primarily to address the emotional consequences of her mother's continued absence.   The report indicates O.H.B. “didn't know about” B.W.M. The counselor concluded, based on her evaluation of O.H.B., that “[c]learly in [O.H.B.'s] life, the father-like figures are those family friends of her grandmother's and her great-grandfather.”

The guardianship trial was initially scheduled to begin on February 12, 2013, but was postponed to allow bonding evaluations to be conducted between B.W.M. and O.H.B. Apparently, B.W.M. had failed to go to an earlier appointment scheduled on December 10, 2012, but agreed to reschedule for March 25, 2013.   Since he did not appear then either, a final evaluation was scheduled for May 9, 2013.   The court urged B.W.M.'s attorney to remind him of the date, as well as the upcoming court dates.

As the months passed into spring 2013, B.W.M. failed to attend individual therapy.   The Division eventually referred B.W.M. to nine additional substance abuse evaluations, none of which he attended.   The Division provided B.W.M. with bus passes so he could attend scheduled appointments.

When trial began on May 28, 2013, it was noted at the outset that B.W.M. had not attended the bonding evaluation scheduled for May 9, 2013, although his lawyer stated that B.W.M. was aware of the appointment.   As we have said, B.W.M. did not appear for either day of trial, and while his counsel indicated that, as far as he knew, B.W.M. intended to contest the termination, he could not “account for [B.W.M.'s] whereabouts.”

At trial, Seidman testified regarding B.W.M.'s psychological evaluation, including his opinion that even supervised visitation was not appropriate for the foreseeable future.   Seidman explained that given B.W.M.'s apparent “mood swings ․ [and] tendency to act out,” visitation did not seem “logical ․ because [B.W.M.] can't be controlled.”

Omar Mateo, a Division caseworker, testified that the Division had “very little contact” with B.W.M. since the case was opened because workers had a “very hard time” reaching him.   Despite the Division's efforts to provide him with services, B.W.M. attended only a handful of scheduled appointments.

Mateo reported that O.H.B. was thriving in the maternal grandmother's care, “doing great.”   He opined that she was “fully bonded” with her grandmother, although he acknowledged no bonding evaluation had been conducted of O.H.B. and her grandmother, primarily because B.W.M. himself had failed to appear at a bonding evaluation.

Mateo explained that visitation was not attempted after Seidman's evaluation of B.W.M. Mateo added that B.W.M. had never requested the Division assess his home as a possible placement for O.H.B. B.W.M.'s whereabouts were actually unknown to the Division.

In rendering her decision, Judge Baxter found that B.W.M. had no contact with O.H.B. since at least his volunteered February 2010 waiver of visitation.   She enumerated the Division's efforts to provide services to B.W.M., observing that on the rare occasion he participated, his hostile behavior towards staff caused him to be discharged.   Furthermore, he had refused substance abuse treatment even though it appeared to be “drastically need[ed].”   Judge Baxter also found B.W.M.'s refusal to comply with services to be particularly significant because he fully understood that, as of June 2012, no visitation would be permitted unless he participated in treatment.   His record of noncompliance revealed his “lack of insight, lack of judgment and lack of attachment” to the child;  the judge observed that B.W.M. seemed indifferent about visitation and never offered himself as a placement option.   The court credited the testimony of Seidman, finding that B.W.M. suffered from bipolar disorder with manic and depressive episodes, generalized anxiety disorder, drug dependence, anti-social personality disorder, and narcissistic personality disorders.

The judge concluded that the Division readily, by clear and convincing evidence, established the statutory factors found in N.J.S.A. 30:4C–15.1. We affirm essentially for the reasons stated by Judge Baxter in her cogent and thorough analysis.

On appeal, defendant submits the following points for our consideration:

POINT I

THE DIVISION'S LAY WITNESS EXCEEDED THE SCOPE OF PERMISSIBLE LAY OPINION EVIDENCE.  (Not Raised Below)

A.  THE DIVISION'S LAY WITNESS IMPERMISSIBLY RENDERED A HIGHLY PREJUDICIAL EXPERT WITNESS CONCLUSION ABOUT THE PURPORTED BONDING BETWEEN THE CHILD AND THE POTENTIAL ADOPTIVE PARENT.

B. THE DIVISION'S EFFORTS TO PROVE THAT IT MADE REASONABLE EFFORTS TO PROVIDE FOR VISITATION WAS BASED ON THE PERSONAL BELIEFS OF THE CASEWORKER RATHER THAN ON PERSONALLY OBSERVED FACTS.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE DIVISION'S EXPERT WITNESS RENDERED OPINIONS BASED ON A METHODOLOGY THAT DOES NOT ENSURE THE RELIABILITY OF THOSE OPINIONS.  (Not Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED [BY] THE IMPROPER ADMISSION OF HIGHLY PREJUDICIAL HEARSAY EVIDENCE.  (Not Raised Below)

POINT IV

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS DENIED BY THE ERRONEOUS ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE.  (Partially Raised Below)

POINT V

THE TRIAL COURT'S RULING SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE STATUTORY ELEMENTS JUSTIFYING TERMINATION OF PARENTAL RIGHTS.

A. THE FATHER HAS NEVER ENDANGERED HIS CHILD.

B. THE DIVISION HAS NOT MADE REASONABLE EFFORTS AND THE COURT HAS NOT CONSIDERED ALTERNATIVES TO TERMINATION.

C. THE TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

B.W.M. contends in Point I that the testimony of the Division worker exceeded the scope of permissible lay opinion evidence.   In further support of the argument, B.W.M. suggests that the Division proffered Mateo's statement, that O.H.B. was “fully bonded” with her maternal grandmother, as a substitute for an expert testimony.   Since he did not object to this material at trial, he must demonstrate that its admission was plain error, i.e., error “clearly capable of producing an unjust result.”  R. 2:10–2;  State v. Daniels, 182 N.J. 80, 95 (2004);  State v. Atwater, 400 N.J.Super. 319, 336 (App.Div.2008) (alteration in original) (citation and internal quotation marks omitted).

It is not surprising that since B.W.M. failed to appear for three separately scheduled bonding evaluations, the Division would not pay for a bonding evaluation between O.H.B. and the maternal grandmother.   The child does not even know that she has an identified father.

Under these unique circumstances, it is not fatal that the Division did not fund a bonding evaluation.   B.W.M. is a person entirely unknown to his child.   He has been diagnosed as suffering from mental health conditions that, if untreated, make parenting quite difficult.   He suffers from untreated drug issues.   Despite claiming he wanted custody of O.H.B., he never asked to visit her nor offered his home as a placement.   These factors render B.W.M. arguably unfit.

We have previously observed that the instances are few in which bonding evaluations are not necessary.   See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 440 (App.Div.2009).   This was one of those instances.   O.H.B. is literally unacquainted with her biological parent and B.W.M. has taken no steps towards becoming an option for his child.   She is thriving in a placement in a pre-adoptive home with kin.

And Mateo's statement regarding the apparent relationship between child and maternal grandmother was proffered, not as an expert opinion, but merely a summary of the worker's observations of the positive interaction between child and adult during the two years they lived together.   It was not relied upon as an expert opinion by the court.   We can only echo Judge Baxter's comments.   It would have been preferable for a bonding evaluation to have been completed, but, in this case, it does not appear to have been an omission actually constituting error of any sort, much less plain error.

B.W.M. also contends in Point I that the Division did not adequately demonstrate the efforts it made to provide B.W.M. with visitation because its proofs were impermissibly based on the worker's “beliefs.”   This claim lacks merit because it is not supported in the record, which includes orders granting defendant visitation.   Despite these orders, he never sought visitation.

Judge DiCamillo's order of May 13, 2011, granted supervised visitation to B.W.M. Nonetheless, B.W.M. for over a year — to the entry of the June 26, 2012 order — did nothing to exercise the right he had previously waived.

Even the June 2012 order allowed B.W.M. supervised visitation, “once recommended by [his] therapist.”   Again, B.W.M. did nothing, including engaging in the therapy that would have enabled him to have contact with his daughter.   B.W.M.'s whereabouts were not even known most of the time the case was pending.

In any event, the Division worker's statement about his “beliefs” was not relied upon by Judge Baxter.   She relied upon the absence of any initiative taken by B.W.M. The admission of the statement, in the context of B.W.M.'s lack of participation in services, in the proceedings themselves, and seeming lack of interest in his child, is innocuous, certainly not error, let alone plain error.

In Point II, B.W.M. challenges the reliability of Seidman's opinion recommending against supervised visitation given B.W.M.'s personality disorders.   Seidman's statements regarding B.W.M.'s diagnoses were based on standard testing and standard classifications regularly relied upon by experts in his field.   The methodology he employed was not novel.   Certainly, mental health evaluations and psychological testing are not exact.   After our review of the record, we see nothing in Seidman's testimony that casts doubt on his evaluation or makes Judge Baxter's reliance upon it an abuse of discretion.   See Brenman v. Demello, 191 N.J. 18, 31 (2007) (reviewing decision applying N.J.R.E. 403);  see also State v. Feaster, 156 N.J. 1, 82 (1998) (explaining that the reviewing court reverses an evidentiary ruling only if the ruling was a clear error in judgment or so wide of the mark that a manifest denial of justice resulted).   In this case, Seidman administered nine separate tests in order to formulate his opinion.

As to Point III, inclusion of the grandmother's statements in Division records admitted as exhibits played no role that we can discern in the trial court's decision.   Even if statements were admitted, critical of B.W.M.'s conduct towards his children, towards women, or regarding the influence his drug abuse may have had on O.H.B.'s mother's own drug abuse, they were not expressly relied upon by the court.   B.W.M. objects to the admission of allegedly prejudicial hearsay evidence in similar fashion in Point IV. We note that Judge Baxter did not rely on these statements either.

Furthermore, B.W.M. did not object to any of this testimony at trial.   In light of B.W.M.'s statements, conduct, and history, however, the admission of the hearsay objected to in Points III and IV had little or no effect on the outcome, even assuming for the sake of argument that the admission was error.   It was certainly not plain error.

The arguments in B.W.M.'s Point V were thoroughly and correctly addressed by Judge Baxter and require no further discussion here.

Affirmed.

FOOTNOTES

1.  FN1. D.A.B., the child's mother, is not involved in the appeal.

2.  FN2. The Dodd Act authorizes removal without a court order under limited, specified circumstances.  N.J.S.A. 9:6–8.21 to –8.82.

3.  FN3. Dr. Seidman explained the implications of each diagnosis during his trial testimony, which need not be repeated here.

PER CURIAM

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