NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2786-04T42786-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.S.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF L.K.S.,

A Minor.

 

Submitted October 3, 2005 - Decided

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-91-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (Evelyn F. Garcia, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor Armstrong, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent L.K.S. minor child-respondent (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship matter, K.S. appeals from the entry of an October 7, 2004 order terminating her parental rights to L.K.S., the second of her three children, and placing the child in the care and under the guardianship of the New Jersey Division of Youth and Family Services (DYFS) for all purposes. She asserts on appeal that DYFS failed to prove, by clear and convincing evidence, each of the statutory requirements, see N.J.S.A. 30:4C-15.1(a), to support the termination of her parental rights. We disagree and affirm.

The following facts are derived from our review of the record. On November 22, 2001, DYFS received a referral from C.S., the mother of K.S. and the grandmother of L.K.S. C.S. reported that K.S. had left the child, then ten months old, with her and had failed to return to pick the child up. During the investigation that followed immediately after that call, the DYFS caseworker learned that K.S. had come to New Jersey from Georgia in August 2001, following an incident in which she had been first arrested and then evicted from her place of residence. She left her older child, L.D., in the care of his paternal grandparents in Georgia, bringing only L.K.S with her. The DYFS caseworker also learned that since her arrival in New Jersey, K.S. had not maintained any fixed residence but had instead stayed with a variety of family members and friends. She had left K.S. in the care of several other people from the time she arrived in New Jersey up until the date of the referral.

K.S. signed a DYFS consent form to permit L.K.S. to be placed for fifteen days with C.S., the child's maternal grandmother. After only three or four days had passed, however, C.S. again requested assistance from DYFS. She informed them that she had no food, clothing or supplies for L.K.S. and that the child needed medical attention. C.S. further advised DYFS that she was unwilling to continue to care for the child. DYFS then arranged for a placement of the child with L.C., a friend of the child's family, who agreed to serve as her foster mother. The child has remained in the care of L.C. since that time and at the time of the trial, L.C. expressed a desire to adopt L.K.S.

During the months that followed the initial referral and placement of the child, DYFS was unable to contact K.S. in spite of numerous efforts to do so. During the same time frame, L.C. reported that K.S. had not attempted to visit with the child. When DYFS was able to locate K.S, the caseworker proposed a schedule for visitation with L.K.S. beginning in February 2002. At the same time, DYFS arranged for a psychological evaluation to be conducted in March and arranged for K.S. to attend a parenting skills class. However, K.S. failed to attend any visitation for the next two months and failed to appear for the evaluation or the parenting class. The next contact K.S. had with DYFS came in May 2002, when she advised the agency that she had moved. She was given a new date for the psychological evaluation, in June 2002, and was referred to another program for parent education classes. The evaluation was subsequently rescheduled at K.S.'s request to July.

In June 2002, K.S. agreed to the terms of a case plan with DYFS. At the time, she admitted having used drugs and alcohol in the past. She admitted that she had been unemployed for a year, but said that she had been working on her GED and had recently secured a job at Walgreens. Shortly thereafter, the case was transferred to a different DYFS office and was assigned to a new caseworker. That caseworker rescheduled the psychological evaluation, which K.S. attended in July. In addition, the new caseworker began to assist K.S. by arranging for visitation, much of which K.S. attended, and assisted her in her efforts to locate housing and other benefits.

On January 1, 2003, K.S. appeared at the DYFS office for visitation with L.K.S. At the time, she had her three year old son L.D. with her. She explained that the child's paternal grandmother in Georgia had permitted the child to visit with her for the holidays but that she had not returned the child as planned. DYFS learned that K.S. was staying with a "godsister" who agreed to supervise the placement of both of the children. At the same time, K.S. agreed to a case plan which required that she complete a parenting skills class, that she obtain housing appropriate for both the children, that she cooperate with a parent aide and that she follow up with respect to available welfare benefits. In late January, DYFS received a referral from L.D.'s paternal grandmother, who wanted L.D. returned and who advised that K.S. was leaving the child with many people. During the investigation that followed, DYFS learned that K.S. had been in a dispute with her godsister and was no longer living with her. DYFS also learned that K.S. had left L.D. in the care of a family member with a criminal record. DYFS removed L.D. from that living situation and placed him with L.C. who was continuing to care for L.K.S. as well. L.D. was reunited with his paternal grandmother the following day and his custody is not in issue in this appeal.

Dr. Leslie Williams performed a psychological evaluation of K.S. on March 18, 2003. Dr. Williams also performed bonding evaluations on both K.S. and L.K.S. as well as on L.C. and L.K.S. According to Dr. Williams, K.S. had a transient lifestyle, did not comply with any of the recommendations of DYFS, had failed to secure regular employment and had never been able to live independently. He diagnosed her as suffering from a mild to moderate mental disorder. He described her as an individual who did not take responsibility for her own behaviors or their consequences, and who had essentially abandoned L.K.S. to others without regard for the child's welfare. Moreover, he described her as impulsive and immature in judgment, noting that her decision to refuse to return L.D. to his grandmother was based only on her own needs and was made without regard for the needs of the child. Dr. Williams noted that K.S. had left L.K.S. in the care of L.C. for nearly three years, visiting the child only sporadically. He opined that K.S. was not capable of providing adequate parenting for the child.

Dr. Williams also performed bonding evaluations. He found that K.S. did not show good parenting skills or appropriate behavior during the evaluation session. He also found that L.K.S. did not demonstrate any significant bond with K.S. although L.K.S. did appear to be familiar with K.S. In contrast, he opined that the child showed strong and positive bonds with L.C., her foster mother, who she regards as her psychological parent. He testified that if L.K.S. were separated from L.C., she would suffer "severe loss, profound depression, digression, confusion, and fright."

In addition, Dr. Williams conducted bonding evaluations relating to the potential for other family members to be considered as alternate placements for L.K.S. None of those family members had developed any significant bond with the child.

At trial, K.S. offered the expert opinion of Dr. Gerard Figurelli, who had conducted a psychological evaluation of K.S. in order to determine her ability to adequately parent her child and who had performed a bonding evaluation of L.K.S. and K.S. He performed his psychological evaluation of K.S. on February 21, 2004. Dr. Figurelli identified evidence of obsessive compulsive traits and suggestions that variations from a daily routine provoked K.S. to experience feelings of anxiety and indecisiveness. Significantly, K.S. identified D.W., with whom she was then in a significant relationship, as the father of L.K.S. when, in fact, he plainly was not. During that evaluation, K.S. admitted to a far more extensive history of drug use than she had previously reported. She told Dr. Figurelli that she was then residing alone in a three-room apartment in Syracuse, N.Y., but that she was unemployed and receiving a variety of benefits.

Dr. Figurelli also performed a bonding evaluation. He opined that K.S. had not developed a full, significant, emotionally bonded relationship with L.K.S. He concluded that in order to be able to parent L.K.S., K.S. would need to establish adequate living arrangements and a stable source of income and that she would need to complete classes in parenting skills and participate in drug abuse therapy. Dr. Figurelli found that it was significant that K.S had failed to comply with the directions from DYFS that she attend parenting skills training, that she had falsely reported the name of the child's father to him, and that she had no plan for supporting L.K.S. He also conceded that it was significant that K.S. had not inquired as to her child's welfare in the eight months between his evaluation and the trial.

K.S. visited L.K.S. four times between the time following the March 2003 evaluations by Dr. Williams and February 15, 2004, which was shortly before Dr. Figurelli's evaluation. K.S. did not visit the child at all between February 15, 2004, and the time of the trial that culminated in the court's decision in October 2004. She did not attend or testify during the trial, advising her attorney instead that she had a new baby who was in need of medical attention and whose needs prevented her from attending. That information could not be verified. In addition, although the trial was adjourned for three weeks in order to give K.S. a further opportunity to participate, she did not do so.

Based on this evidence, Judge Benjamin Cohen set forth his findings of fact and conclusions of law on the record on October 7, 2004. In summary, he concluded that DYFS had proven each of the four statutory elements required for an order terminating K.S.'s parental rights by clear and convincing evidence. On appeal, K.S. argues that the trial judge erred both in his findings of fact and in the conclusions of law he reached.

In particular, K.S. argues, with respect to the first statutory prong, see N.J.S.A. 30:4C-15.1(a)(1), that there is no evidence that supports the finding that the child was abused or neglected when DYFS intervened, that DYFS failed to assist her to obtain suitable housing and regular employment, and failed to consider the adequacy of her living arrangements in Syracuse. With respect to the second part of the test, see N.J.S.A. 30:4C-15.1(a)(2), K.S. argues that the bonding evaluation is an inadequate basis for terminating her parental rights. As to the third statutory prong, see N.J.S.A. 30:4C-15.1(a)(3), K.S. argues that DYFS should have placed L.K.S. with the child's maternal grandmother or with her paternal grandmother in Georgia, and she argues that the judge erred when he failed to consider kinship legal guardianship as a viable option to termination of her parental rights. Finally, as to the fourth prong of the test, see N.J.S.A. 30:4C-15.1(a)(4), K.S. argues that there is inadequate evidence in the record to support the conclusion that termination of her rights will not do more harm than good.

An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. The appellate court reviews the record to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also accords considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the judge's factual findings are supported by the evidence, the appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)(citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A mother's right to parent her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)(citations omitted). However, that right is not absolute and must yield to protect a child's welfare. See New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted). These standards which are now codified in the statutory four part test, see N.J.S.A. 30:4C-15.1(a), are not discrete but are to be applied in light of the particular facts and circumstances in the record.

Applying these familiar principles to the record before us, we find no ground on which to interfere with Judge Cohen's findings of fact or conclusions of law. The record reflects that K.S. abandoned L.K.S. by leaving her with the child's maternal grandmother and failing to return for her. Following the child's temporary placement, K.S. failed to maintain contact with DYFS or with L.K.S., visited with her only sporadically and did not inquire as to L.K.S.'s health or welfare. The record further reflects that, in spite of reasonable and adequate efforts by DYFS, K.S. has not been able to maintain stable housing or to secure employment and that she has no plan for the care of her child. To the extent that K.S. argues that she now has a suitable apartment in Syracuse, there is no evidence in the record to support that assertion. To the extent that she argues that she has found employment, the only evidence before the trial judge or this court is that she had a job at Walgreens for a brief time. There is no evidence in the record to demonstrate that K.S. has ever been regularly employed in any capacity. The record overwhelmingly supports the conclusion that K.S. has no ability now, nor will she in the future become able, to care for this child or to act as a parent. Rather, over the course of time, and largely due to her own neglect of L.K.S., the child has become strongly bonded to L.C., her foster mother, showing only a weak emotional awareness of K.S.

Furthermore, the arguments K.S. raises on appeal concerning other possible caretakers are without merit. DYFS investigated many family members, each of whom was either unsuitable or unwilling to act as a caretaker for the child. In particular, we reject as groundless the suggestion raised on appeal that the option of kinship legal guardianship should have been explored. That option is not appropriate in light of the fact that there is no evidence that there is any individual with the requisite kinship relationship to L.K.S., see N.J.S.A. 3B:12A-2, who is willing or able to act as a kinship legal guardian. Nor is there evidence that adoption "is neither feasible nor likely." See N.J.S.A. 3B:12A-6d(3); New Jersey Div. of Youth and Fam. Servs. v. P.P., 180 N.J. 494, 509 (2004). On the contrary, L.C., to whom L.K.S. is now strongly bonded, desires to adopt L.K.S. and the record supports the conclusion that the continuation of that relationship is in the child's best interests.

Based on our review of this record, we are satisfied that the judge's findings of fact are supported by substantial credible evidence in the record and that those facts establish, as the judge concluded, that DYFS proved each part of the statutory test by evidence that is both clear and convincing.

Affirmed.

 

The order also terminated the parental rights of B.L.D., who had been determined by forensic testing to be the child's biological father. B.L.D. has not filed an appeal.

Among the evaluations performed by Dr. Williams was a psychological evaluation of B.L.D., the biological father of L.K.S. Because B.L.D. does not challenge the order terminating his parental rights and because the judge did not rely on that evidence in his evaluation of the issues as they relate to K.S., we need not detail those findings here.

Although he attempted to perform a bonding evaluation to consider the bonds between L.K.S. and L.C., her foster mother, he was unable to accomplish that goal during the evaluation session that L.C. attended with the child.

(continued)

(continued)

14

A-2786-04T4

RECORD IMPOUNDED

October 14, 2005