Opinion
DOCKET NO. A-4120-13T1 DOCKET NO. A-4121-13T1
05-26-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. V.G. and J.G., Defendants-Appellants. IN THE MATTER OF G.P. and R.T., Jr., minors.
Joseph E. Krakora, Public Defender, attorney for appellant V.G. (Jill Alintoff, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Rasheedah Terry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Francesco Ferrantelli, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.P. and R.T., Jr. (Lauren R. Jacoby, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FN-15-46-12. Joseph E. Krakora, Public Defender, attorney for appellant V.G. (Jill Alintoff, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Rasheedah Terry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Francesco Ferrantelli, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors G.P. and R.T., Jr. (Lauren R. Jacoby, Designated Counsel, on the brief). PER CURIAM
Defendants V.G. (Vince) and J.G. (Jill) are the maternal grandfather and maternal great-grandmother of G.P. (George), born November 20, 2004, R.T., Jr. (Ryan), born September 26, 2007, and Ryan's half-sister, M.Y. (Mary). Following a four-day G.M. and permanency hearing, the trial court determined it was unsafe to return George and Ryan to defendants. Vince had no interest in obtaining sole custody of the children. The unrefuted expert testimony is that Jill is not qualified as an independent caregiver for the children and neither George nor Ryan want to be returned to her care. Defendants appeal from the order. We affirm.
Mary was dismissed from the litigation after she turned eighteen.
N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382 (2009).
I.
The Division of Child Protection and Permanency (the Division) has been involved in the lives of these children since George was born in 2004. In April 2011, the court ordered the transfer of legal and physical custody of the children to Jill and Vince. Less than five months later, after receiving numerous referrals alleging the children were at risk, the Division removed the children from Jill's custody pursuant to an emergency Dodd removal, N.J.S.A. 9:6-8.29(a).
They resided with Jill; the children have never lived with Vince.
On September 12, 2011, the Division filed a verified complaint and order to show cause to appoint a law guardian with temporary custody under Title 9, alleging abuse and neglect, N.J.S.A. 9:6-8.21, and also under N.J.S.A. 30:4C-12. Both defendants appeared at the hearing. The order entered thereafter stated removal was required because Jill provided Vince and the children's maternal uncle with prescription medications; Vince was observed "under the influence" in the presence of George and Ryan; Mary had left the home, "alleging she was denied food and medical care by [Jill]"; and "there were ongoing concerns with the condition of the family home." The children were placed with a resource family, where they have lived since September 12, 2011.
Both defendants were present and represented by counsel at the fact-finding hearing held in October 2011. Counsel for the Division placed on the record a summary of the discussion that occurred during a conference the judge had with all counsel in chambers. She stated a determination had been made that one allegation against Jill, regarding the conditions in her home, had been substantiated and that the court had indicated the allegation did not rise to the level of abuse under Title 9. It was also represented that Jill was willing to stipulate to a need for services under Title 30.
Under oath, Jill stated her attorney had explained to her "what a Title 30 is," that she was willing to enter into a stipulation and agreed she was in need of services. The trial judge pursued the implications of Jill's stipulation with her, stating that the conditions of the house impacted the health and safety of the children. Initially, Jill did not agree there was a need for the Division to take custody of the children, stating that the conditions of her home had changed. However, the judge explained that the conditions at issue were not those at present but at the time the Division took action. Jill responded, "At that point they felt, yes, they should be taken."
The judge then found that, as stipulated by Jill, this was an appropriate case, pursuant to Title 30, for the court to make the children wards of the court and grant the Division custody, care and supervision by way of services in order to ensure the safety of the children. The judge ordered that defendants submit to psychological evaluations and random drug and alcohol screenings and further, that Vince "complete an extended substance abuse assessment, comply with recommendations therefrom and sign releases for all treating physicians." Vince's attorney assented, "Your Honor, we're in agreement with all terms of the Order." The order was entered under Docket No. FN-15-46-12B.
The three biological parents, who were present, were also required to submit to psychological evaluations. In addition, M.G., the children's mother, and R.T., Ryan's father, were required to submit to random drug and alcohol screenings.
There was, then, no objection posed to either the procedure followed by the judge or the conclusion reached by the judge. Defendants did not appeal from the order.
Eight compliance review hearings were conducted over the period from January 2012 through February 2013 and all the orders were entered under Docket No. FN-15-46-12B. Throughout these proceedings, defendants were represented by counsel and personally appeared at most of the hearings. There was no objection to proceeding under that docket number and no appeal from any of the orders entered that continued the children in the care, custody and supervision of the Division.
Because the biological parents are not parties to this appeal, our summary of the compliance hearings does not include the court's efforts to reunite the children with them.
A psychological evaluation of Jill performed by David Brandwein, Psy.D., resulted in his diagnosis that she had a personality disorder not otherwise specified. He opined that she was not qualified as an independent caregiver for the children.
In April 2012, the court conducted a hearing to determine if the children should be returned to Jill. Counsel for the Division and the Law Guardian for George and Ryan all represented that the boys did not want to return to Jill's care. Counsel for Mary also advised the court that Mary opposed the return of her siblings to Jill, citing safety concerns for their well-being. Vince's attorney stated he had no interest in obtaining sole custody of the children, but that he was supporting Jill with respect to her desire to have custody. The court made repeated references to making a decision in the best interests of the children, and stated he would conduct an in-chambers interview of the children. The judge stated there would be a hearing at which "we're going to have Dr. Brandwein's testimony, any other rebuttals to that, and I'm going to make a decision."
The court ordered the children to remain in the Division's custody and care following a July 2012 compliance review. The court required defendants to submit reunification plans to be reviewed by Dr. Brandwein. Vince never submitted a reunification plan and Dr. Brandwein identified several grounds for his disapproval of the one submitted by Jill.
In August 2012, the court held a permanency/compliance review hearing and took testimony from Jill regarding her application to have the children returned to her. She stated she had rectified the conditions that prompted the removal of the children from her care and that she saw no reason for the children to remain in foster care. No expert testimony was presented to rebut Dr. Brandwein's opinion. The court denied Jill's application, noting that the children said they were comfortable remaining in the placement where they were.
In hearings that followed, the children remained unchanged in their desire not to return to Jill's care. The record reflects this fact by way of the Law Guardian's representation in November 2012, in the court's in camera interview of the children in December 2012 and another interview in January 2013. In the December 2012 interview, one of the children stated he did not want to return to Jill because "she don't give us baths, she don't take care of us." In the January 2013 interview, George reported that Jill told him his mother did not want to see him anymore and did not care about them. He only wanted to see Jill in supervised visitation.
At the next hearing, in February 2013, the judge reviewed the potential for placement of the children with each of their biological parents and with defendants. Counsel for the Division stated that the evidence before the court included the recommendation that Jill not serve as an independent caregiver for the children. The judge observed that, as a result of the psychological reports, Jill was "out" as a potential placement. However, he explicitly invited defendants to present contrary evidence:
At the close of this hearing, the only biological parent who remained in consideration for placement was George's biological father, D.P., who was willing to take custody of both George and Ryan.
Now, if someone wants to submit some evidence contrary to what's existing here by the professionals who are looking at this whole thing, they are more than free to do so. I'm saying what I have in front of me by psychologists . . . they're saying, "We do not recommend her as an independent caregiver for the children."
Vince did not want to be an independent caregiver and was not recommended as an independent caregiver. He was, therefore, excluded from consideration for placement. The order entered stated, "[t]he next court event for this matter will be a Permanency and G.M. hearing, ABSENT CONSENT IF NEEDED." There was no objection to the court's characterization of the hearing that would follow.
Counsel for the Division questioned why Vince should not be dismissed from the case and his attorney requested an opportunity to discuss that issue with him and have the issue addressed at the next hearing.
The hearing identified by the February 2013 order began on August 1, 2013. At the outset, the judge stated, "Before we begin I want to be very clear about the posture of this matter and what we're seeking to do at this stage." He noted that normally there would have been a termination trial at that time but the case had endured for two years without achieving permanency for the children. This was partly due to the fact there had been "a lot of issues with the biological parents," who had been "equivocal" in their efforts to comply with court orders as well as in their stated desire or ability to take custody of the children. Again, in part because "the parents have been unable, unwilling, or unavailable to take their biological children," the case remained in a "holding pattern" the court was determined to end. Observing there was no consent among the parties regarding custody of the children, the judge said a decision had to be made because the children could not be allowed "to languish anymore."
So given that there are no biological parents that are willing, able, for whatever reason to take their child and parent them as of today safely until adulthood, and given that the Division's position based on things that have happened over the course of these two years is that [Vince and Jill] cannot because of [G.M.], this Court must hold a hearing to decide whether they can safely
parent the children because that's who the Division removed the children from.
Now, let's be clear. At the end of that, depending on what the Court's decision is, there will be the need for additional proceedings if the Court decides anything other than that they can safely parent and [the children] should be returned to [defendants]. So if at the end of the day the decision is that they cannot, now we're going to have to do one of two things. We're either going to have a custody hearing or if none of the parents are in a position to safely care for these children, then we will have a termination of parental rights case. That's how it has to proceed unless, of course, the parents agree and the caretakers on some level agree to something other than adoption. So that's where we are.
The judge then asked the attorneys, "Does any counsel disagree with the Court's assessment of where this matter is at?" Although this was an open invitation to object to the procedure described by the court, none of the attorneys disagreed with the judge's assessment.
Counsel for Vince replied, "No, Your Honor" to the court's inquiry. The record does not include a response from Jill's attorney.
Immediately thereafter, counsel for the Division advised the court the Division had been unable to reschedule updated psychological evaluations for defendants after they failed to attend a scheduled evaluation, and noted, "[t]his matter was set down the last Court [hearing] for both a [G.M.] and a permanency hearing." Once again, none of the attorneys objected to this characterization of the hearing that was about to commence.
The hearing continued for an additional three days, on August 16 and October 9, 2013, and February 7, 2014. Defendants were represented by counsel at each of these hearings. At no time during the course of these hearings did either defendant object to the procedure followed.
Jill was present for all these hearings. Vince was not present on February 7, 2014. --------
During the course of the hearings, the court heard testimony from Maureen Santina, Ph.D., the psychologist called by the Law Guardian; Dr. Brandwein, who testified on behalf of the Division; and Jill.
Dr. Santina conducted psychological evaluations of the defendants as well as a bonding evaluation between each of them and the children. She explained that the purpose of her evaluation was to address Jill's "fitness to assume parental responsibilities for [George and Ryan]," "whether she was a safe caregiver for them" and "whether it was in their interests to be removed from their foster home and placed with the relatives." She concluded that it would not be safe to return the children to either Jill or Vince.
Dr. Santina opined that Jill would not be "an effective and safe caregiver for the children" for a number of reasons. She referred to "problematic parenting behaviors" she observed and Jill's "lack of awareness of past problems." Dr. Santina stated that despite the court's prohibition, Jill had permitted "known substance abusing parents to reside in the home," allowing them "to abuse substances and to engage in other negative behaviors in the presence of the children, which is damaging to the children." She noted that Jill's actions and denial reflected "a disregard for the Court's directives and for the types of concerns that were there." Dr. Santina believed Jill would be at elevated risk for both neglect of the children and "for exposing the children to the parents, failing to protect the children from the parents, the parents' behaviors."
Dr. Santina also testified as to her evaluation of Vince. Vince only completed one-third of the written psychological testing, and "displayed a resistant and oppositional attitude towards the psychological testing." In her report, Dr. Santina opined:
[Vince] presents with dysfunctional personality traits that significantly interfere with his ability to function as a safe and effective parent. He is emotionally immature and engages in childish, oppositional and rebellious behavior. His judgment is poor. He displaces blame for his difficulties
onto others, and lacks insight into his own behavior.The doctor diagnosed Vince with personality disorder not otherwise specified with "dependent and paranoid features."
Dr. Brandwein conducted psychological evaluations of the defendants and all three biological parents in 2011 and additional evaluations in the following years. In 2013, he did an updated psychological evaluation of Jill and a bonding evaluation between her and the children. He described the purpose of the updated evaluation:
The question was can she safely, both physically and psychologically, care for these kids? Is there a home? Is there food? Is there clothing? Okay. If the Division says there is, I'm not going to argue with that. I don't do home visits. But psychologically can she do it? Can she provide a safe psychological environment for those kids? The answer was no during 2011. The answer is no now.
Dr. Brandwein testified that Jill lacked "psychological fitness to care for the children." Moreover, the children told him individually and together that they did not want to live with her. In his report, he observed further that Jill's "continued pattern of overt deceitfulness and her pervasive and continuous disregard for the psychological needs of others, including her great-grandchildren, suggests the presence of character pathology (i.e., antisocial and narcissistic personality traits) that is highly immune to change."
Defendants did not present any expert testimony to rebut the opinions rendered by Dr. Santina and Dr. Brandwein.
It was established at the beginning of Jill's testimony that she was testifying against the advice of her attorney; that the attorneys for her and Vince had explained what the hearing was about; and that the hearing was "to determine whether [she was] fit to parent [her] great-grandchildren." She testified she "had done a good job with the children" before they were removed; that she did not abuse them or neglect them; their needs were taken care of; and "[t]hey were happy." She expressed her belief that the children should be with family rather than a foster family. She stated she could "take care of those children and raise them to be good citizens."
At the outset of his oral decision, the trial judge identified "the goal of a [G.M.] hearing" as the "determination whether children may be safely returned to the caretaker's custody from whom they were removed." He noted that neither Dr. Santina nor Dr. Brandwein endorsed either defendant as caretakers for the children and that both concluded the children could not be safely returned to defendants. The judge provided a detailed summary of the psychologists' opinions and concluded the children could not be returned safely to defendants.
A permanency order was filed under Docket No. FN-15-46-12B that memorialized the judge's ruling. Thereafter, an order was entered that terminated the litigation, stating the reason for termination was that a complaint for the termination of parental rights had been filed. The order further provided that the children remain in the legal and physical custody of the Division.
II.
Although she does not identify them as such, the arguments presented by Jill are raised for the first time on appeal. First, she argues the trial court failed to sufficiently consider and apply Title 9 and Title 30 standards when the initial removal was approved because the court relied on an allegation the Division considered "unfounded" (Point I). She contends she did not enter into a Title 30 stipulation knowingly and voluntarily (Point II). She also challenges the procedure followed by the trial court. She argues the dispositional order and all subsequent orders must be reversed because they were entered under a Title 9 docket number (Point III) and that the trial court failed to follow the standards and procedures pertaining to Title 30 after accepting the Title 30 stipulation (Point IV).
Vince presents three arguments as plain error. First, he argues the trial court did not properly obtain jurisdiction over him and that the children should have been returned to him after the fact finding hearing (Point I). Since Vince consistently advised the court that he did not want to have sole custody of the children, this argument lacks any merit and does not warrant further discussion. R. 2:11-3(e)(1)(E). He argues that the trial court committed plain error by failing to conduct a summary hearing every six months as required by Title 30 (Point II). He also argues it was plain error for the court to conduct a G.M. hearing because the legal standard established in that case does not apply in Title 30 custody cases in the absence of a finding of abuse or neglect (Point III). Finally, he argues that the doctrine of invited error does not apply because the errors caused "a fundamental miscarriage of justice" and included a jurisdictional error (Point IV).
We are not persuaded by any of the arguments raised by defendants.
III.
In reviewing what procedure was applicable here, we bear in mind that the Division is charged "with the responsibility of protecting the health and welfare of the children of this state," and its "paramount concern" is "the safety of our children." N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); N.J.S.A. 9:6-8.8(a); N.J.S.A. 30:4C-4. The Legislature has established the procedures for accomplishing those obligations in N.J.S.A. 9:6-8.21 to -8.73 (Title 9), and N.J.S.A. 30:4C-11 to -14 (Title 30).
The complaint in this case was filed under both Title 9 and Title 30. In N.J. Department of Children and Families, Division of Youth & Family Services v. I.S., 214 N.J. 8, cert. denied, ___ U.S. ___, 134 S. Ct. 529, 187 L. Ed. 2d 380 (2013), the Supreme Court provided the following clarification of the trial court's authority to act under these statutes:
Title 9 allows the Division to become involved against the wishes of a parent when a child is abused or neglected. N.J.S.A. 9:6-8.21. The State's child-protection policy interest lies in authorizing immediate care, custody, and supervision of the child harmed or at risk of imminent harm. . . . [W]hen there is no finding of abuse or neglect, N.J.S.A. 9:6-8.50(c) does not permit the continued, indefinite exercise of jurisdiction by the family court. The Title 9 action must be dismissed. However, when the Division brings its complaint also under the authority granted to it under Title 30, the court's jurisdiction may continue.
[Id. at 14.]
Therefore, in this case, when the trial court determined that the allegations against defendants did not rise to the level of abuse and neglect, the Title 9 action should have been dismissed. That did not, however, strip the trial court of jurisdiction because the court retained jurisdiction under Title 30. Ibid.; see also N.J. Div. of Child Prot. and Permanency v. L.W., 435 N.J. Super. 189, 196 (App. Div. 2014). Title 30 authorizes the Division to provide services to "children in need" through N.J.S.A. 30:4C-11 and -12. I.S., supra, 214 N.J. at 14. "N.J.S.A. 30:4C-11 (Section 11) applies when the parent or parents voluntarily consent to the Division's assistance. N.J.S.A. 30:4C-12 (Section 12) applies when there is no voluntary parental consent to Division care and supervision." Ibid.
In this case, the Title 30 complaint was filed under Section 12, in anticipation that defendants would not consent to receive services from the Division. The necessary predicate for the court's continued jurisdiction under Title 30 was established by Jill's stipulation that the family was in need of services and Vince's agreement with all the terms of the proposed order. Although the trial judge did not dismiss the Title 9 litigation, he explicitly referred to the exercise of jurisdiction under Title 30 and referred defendants for appropriate services. There was no objection by either defendant.
Pursuant to N.J.S.A. 30:4C-12, an order that places a child under the care and supervision or custody of the Division "shall not be effective beyond a period of six months from the date of entry unless the court, upon application by the division, at a summary hearing held upon notice to the . . . person having custody of the child, extends the time of the order." A preponderance of the evidence standard applies when the Division "seeks to continue the provision of services after periodic review hearings conducted to ensure appropriate court oversight of the Division's plans for the child." I.S., supra, 214 N.J. at 38. "A court should not presume that a child's continued placement outside of the parent's home is or is not in the best interest." Ibid.
The trial court here did not conduct such a summary proceeding within six months of the initial order. Instead, the court conducted periodic compliance review hearings, which are distinguishable from the hearing required in a Title 30 proceeding. See N.J. Div. of Youth & Family Servs. v. T.S., 426 N.J. Super. 54, 66-67 (App. Div. 2012). The purpose of the summary hearing is "to require the Division to demonstrate that continued care and supervision is still in the best interest because there is a need to ensure the child's health and safety." Ibid.
As Jill and Vince concede, "[a]rguably the G.M. hearing held by the court . . . closely resembled the hearing required by Title 30." The G.M./permanency hearing began nearly two years after the Dodd removal. Although defendants argue that the Division failed to provide "any competent and reliable evidence proving that continued custody, care and supervision was in the child's best interest," in the interim, they never objected to the procedure followed by the court and the orders that continued the Division's custody, care and supervision of the children.
IV.
We next address defendants' belated challenges to the procedure followed by the trial judge within the context of the doctrines of invited error and laches.
A.
Pursuant to Rule 1:7-2,
For the purposes of reserving questions for review or appeal relating to rulings or orders of the court . . . a party, at the time the ruling or order is made or sought, shall make known . . . the party's objection to the action taken and the grounds therefor. . . . A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge.
In the absence of an objection, "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also Bradford v. Kupper Assoc., 283 N.J. Super. 556, 573 (App. Div. 1995) (finding "[t]he absence of an objection suggests that trial counsel perceived no error or prejudice"), certif. denied, 144 N.J. 586 (1996). However, "the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court." R. 2:10-2. "[I]ssues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate the public interest." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339 (2010). The doctrine of invited error applies in the event the appellant "consents to, acquiesces in, or encourages an error" and then attempts to use such an error as the basis for appeal. Id. at 341 (quoting Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993)).
The record here provides compelling support for the application of the doctrine of invited error. Defendants were represented by counsel throughout the proceedings, which spanned over two years and consisted of fifteen court appearances and hearings. As our summary demonstrates, the court repeatedly and clearly identified the goal of the proceedings. After doing so at the outset of the dispositional hearing, the judge directly asked counsel if they disagreed with what he described. There was no objection or disagreement at that or any other time.
B.
The Law Guardian also contends defendants' arguments should be barred by laches because they
had ample opportunity to request return of the children; to challenge the removal of the
children; to challenge the jurisdiction of the trial court; to raise a challenge to the validity of [Jill's] stipulation to Title 30; and to request a summary hearing pursuant to N.J.S.A. 30:4C-12 throughout the ensuing three years of litigation.
Laches is "an equitable doctrine, operating as an affirmative defense that precludes relief when there is an 'unexplainable and inexcusable delay' in exercising a right, which results in prejudice to another party." Fox v. Millman, 210 N.J. 401, 417-18 (2012) (quoting Cnty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)). Laches may only be utilized when the "delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing the right had been abandoned." Id. at 418 (citation omitted). "In deciding whether to apply the doctrine, courts should 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.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 445-46 (2012) (quoting Lavin v. Bd. of Educ., 90 N.J. 145, 152 (1982)).
In F.M., a termination of parental rights case, the appellant-mother argued for the first time on appeal that the Division did not have the right to file a guardianship complaint because it "did not have the requisite 'care or custody'" over her sons. Id. at 444-45. The Supreme Court found the appellant's claim was barred by laches because she "was required to contest whether [the Division] had the authority to exercise 'care or custody,' at the very least, at or about the time of the filing of the guardianship petition." Id. at 445. The Court declared, "[s]o long as [appellant] 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 and custody,' the doctrine of laches may be enforced." Ibid.
The record here similarly reflects that defendants had sufficient opportunity to present a case that the children could be safely returned to Jill. Both Jill and Vince were represented by counsel throughout the litigation and attended the majority of the fifteen hearings that were held from September 12, 2011 to February 7, 2014. Like the appellant in F.M., defendants have offered no explanation for their failure for more than two years to challenge the court's exercise of jurisdiction over Vince, the sufficiency of Jill's stipulation, or the court's failure to hold a summary hearing. The record reveals no impediment to their doing so.
In the final analysis, the proceedings conducted by the trial court afforded defendants ample opportunity to challenge the procedure followed by the court and the proofs submitted by the Division. Two psychologists testified that it was not safe for the children to be returned to Jill and that Vince — who did not want to be an independent caregiver — was not equipped to serve in that capacity. This evidence was not refuted. The only evidence proffered by the defense was Jill's testimony, which was essentially a denial of the allegations against her. Under these circumstances, defendants' belated challenges to the procedure followed by the court fail.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION