IN THE MATTER OF THE GUARDIANSHIP OF H.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3495-04T43495-04T4

A-4329-04T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.M. and J.S.,

Defendants-Appellants.

IN THE MATTER OF THE

GUARDIANSHIP OF H.S.,

Minor.

_______________________________________

 

Submitted: September 26, 2005 - Decided:

Before Judges A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-14-16-05.

Yvonne Smith Segars, Public Defender, attorney for appellants J.S. and L.M. (Christine B. Mowry, Designated Counsel for J.S., on the brief; William J. Sweeney, Designated Counsel for L.M., on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian for minor H.S. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, J.S. (birth father) and L.M. (birth mother) of H.S., a five-year-old girl born on September 13, 2000, appeal from the February 14, 2005 Family Part order terminating their parental rights to the minor and committing her to the guardianship of the Division of Youth and Family Services (DYFS). After a careful review of the record, we affirm.

The birth mother has three children besides H.S. She does not have custody of any of her children; one son lives with his paternal grandparents; a daughter is in the custody of her maternal grandmother, but currently lives with a neighbor; and another son is in the custody of his biological father. Until DYFS placed H.S. in foster care, she lived with her birth parents in an apartment in Netcong.

Tonya Rapp, a DYFS caseworker, testified about the mother's history with DYFS, which dates back to 1986 when her first child was born. Since 1986, there have been approximately twenty-eight referrals regarding the birth mother.

DYFS's initial involvement with H.S. occurred after a November 27, 2003 referral, which alleged that birth father had thrown H.S.'s eight-year-old brother out of the house and threatened to kill him. DYFS conducted an interview of the incident. In the process, DYFS discovered substance abuse in the household. DYFS recommended a substance abuse evaluation and urine screens for both parents. The birth mother tested positive for cocaine, and the birth father tested positive for alcohol. After receiving these results, DYFS removed H.S. from her parents' care on January 9, 2003, and placed her with her maternal grandmother for two days. Then DYFS placed H.S. into foster care. Shortly thereafter, the birth parents signed a fifteen-day Consent to Place a Child. The removal was continued for six months with the consent of both parents.

The birth parents had weekly, supervised visitation with H.S. during the six-month period. At first, the birth parents visited H.S. jointly at DYFS office. Eventually, they visited H.S. separately in order to accommodate the birth father's work schedule. Occasionally, the birth mother would not attend or would ask to leave early to attend her classes at school.

DYFS considered two relatives as alternative placements to foster care. The first relative to be considered was H.S.'s maternal grandmother. However, DYFS ruled her out citing concerns about a pet bird that flew freely and defecated around the house. In addition, the grandmother's husband had been the subject of DYFS referrals, including an allegation of neglect, which was substantiated.

Eric Kirschner, Ph.D, evaluated B.T. on January 14, 2004. In his report, Dr. Kirschner noted that he was concerned that the maternal grandmother could not remember or claimed to have limited memory of two accounts of sexual abuse of her daughter. The birth mother described an incident from her childhood wherein she was in the back-seat of a car while her mother performed oral sex on her boyfriend. The maternal grandmother claimed that she did not remember the incident. The birth mother also stated that she was sexually abused by one of her mother's boyfriends and, in distress, cut her wrists. The maternal grandmother admitted that she responded to this by slapping the birth mother because she "never brought [her] kids up to cut their arms . . ."

DYFS also considered the birth father's aunt, who was a foster parent with DYFS, as another custodian for H.S. However, she declined because she was moving to Virginia.

At trial, DYFS called Rachel Jewelewicz-Nelson, Ph.D as its witness. Dr. Jewelewicz-Nelson conducted psychological evaluations of both birth parents and bonding evaluations of H.S. and birth mother and birth father and a bonding evaluation between H.S. and her foster parents. She opined that the birth mother's mental status was within normal limits, but her memory was "somewhat below average" and her abstract reasoning skills were "weak." Dr. Jewelewicz-Nelson opined that the below average memory concerned her because birth mother could potentially forget to give a child medication. The weak abstract reasoning result troubled her because, "it could potentially lead to weakness in understanding the significance of a child's needs or of needing to follow prescribed regimens in terms of medication or schooling or health issues."

Dr. Jewelewicz-Nelson was concerned about birth mother's personal history, specifically the loss of custody of her three other children. There was a "mismatch in birth mother's perception of herself as a parent and her objective success as a parent." The birth mother received a normal range score in the Parenting Stress Index, but "had a high faking good score which made the whole response somewhat suspect." Birth mother's former partners, including birth father, had been abusive and that evidenced birth mother's poor choice in partners and a potential to expose children to harm.

Dr. Jewelewicz-Nelson opined that birth father was unaware of when birth mother was using drugs and was unaware that H.T. was medicated for ADHD. Birth father had the intellectual ability to solve problems. However, he procrastinated and did not follow through on his responsibilities. Birth father misunderstood parenting roles and seemed to expect older siblings to care for younger siblings. Birth father had a very passive parenting style. He would interact with birth mother and H.S. verbally, but would not interact with them physically.

As to the bonding evaluation, Dr. Jewelewicz-Nelson found that H.S. recognized both her biological parents, seemed comfortable and interacted with them both. But, Dr. Jewelewicz-Nelson stated that it was her clinical judgment that birth mother was "not at this time capable of providing appropriate and adequate parenting for H.S." because she had "low empathy" for H.S.'s emotional needs and "very little capacity to plan for H.S.'s needs immediately or in the future."

The doctor stated that it was her opinion that birth father was "not capable of providing H.S. with a proper parenting environment at this time" because he does not have a good attunement with empathy for H.S. and is not capable of planning for her.

A bonding evaluation between H.S. and her foster parents revealed that the child is much more bonded to her foster parents. Separating H.S. from her foster parents would cause greater emotional and psychological harm than the harm caused by being separated from her biological parents. When H.S. left her foster parents, she required multiple hugs, kisses and reassurances that the foster parents would return. When she left her birth parents, she simply left with the DYFS driver, who H.S. did not know, and did not say goodbye. The doctor was not confident that allowing birth mother and father to have another six months to prepare for H.S.'s return would be successful and further opined that any delay in H.S.'s adoption would only harm H.S. The doctor concluded by stating that, "it is in H.S.'s best interest to be adopted by her current foster parents."

Birth mother and father did not call any expert witnesses to testify on their behalf. Birth father intended to call Dr. Speber-Wise, who had met with him and written a report. Birth father reserved his right to testify pursuant to the doctor's report. Dr. Speber-Wise did not testify and there is no report included in the record.

Birth mother testified at trial, admitting her long struggle with drug addiction. At the time she testified, she asserted being sober for 175 days. If she regained custody of H.S. she would utilize daycare while she was at school and would support H.S. through SSI and food stamps. She received $565 a month at the time of trial. She planned to live with her mother and would require a DYFS homemaker to help her care for H.S. She planned to marry and move in with birth father, but that it would take time and money to get an apartment. Birth mother also testified that she feared birth father would hurt her if she broke up with him. She also intended on finishing her studies at the Dover Business School.

Birth father did not testify. He presented no witnesses.

DYFS worker Curcio testified that she observed H.S. in the foster family environment and that she seemed adjusted and happy. The home environment is a loving and nurturing one. H.S. has a positive relationship with the foster parents' adopted daughter. The foster parents are interested in and committed to adopting H.S.

On appeal, the birth father and mother contend that DYFS did not prove that: (1) they endangered H.S.'s safety, health and development; (2) they were unwilling or unable to eliminate the harm facing H.S.; (3) DYFS made reasonable efforts to provide services to them; or (4) termination of parental rights will not do more harm than good. The Law Guardian urges affirmance.

The conditions for termination pursuant to New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), have been codified at N.J.S.A. 30:4C-15.1; see also In re Guardianship of DMH, 161 N.J. 365, 375 (1999); In re Guardianship of J.C., 129 N.J. 1, 9 (1992); In re Adoption of Child by P.S., 315 N.J. Super. 91, 110-11 (App. Div. 1998). N.J.S.A. 30:4C-15.1a provides the following standards for termination: (1) the child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm; (3) DYFS has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) termination of parental rights will not do more harm than good.

 
Here, we have considered the arguments in light of the entire record, the briefs submitted and the applicable law. We are convinced that the judge's findings of fact placed on the record on February 14, 2005, setting forth his application of the law to the facts, are well-supported by the record. R. 2:11-3(e)(1)(A). Thus, we affirm.

Affirmed.

(continued)

(continued)

9

A-3495-04T4

RECORD IMPOUNDED

October 18, 2005