DIVISION OF YOUTH AND FAMILY SERVICES v. M.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4537-04T44537-04T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF C.A.G. AND J.N.S.,

Minors.

_________________________________________________________

 

Submitted October 25, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-11-53-04.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent, Division of Youth and Family Services (Patrick DeAlmeida, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

PER CURIAM

Defendant M.S., the biological mother of C.A.G. and J.N.S., appeals from the judgment of guardianship entered on March 22, 2005, terminating the parental rights of M.S. and the two biological fathers of the minor children C.A.G. (born January 12, 1997) and J.N.S. (born September 7, 2001). The two fathers are not involved in this appeal. The two children currently reside with their foster parents, Mr. and Mrs. C., who have evidenced a desire to adopt the children and to care for them permanently.

On October 14, 2005, M.S. was found guilty of aggravated manslaughter in the death of her son, D.S., the twin of J.N.S. The jury also found M.S. guilty of two counts of endangering the welfare of D.S. and J.N.S. Although C.A.G. appears to have escaped any physical brutality, he has experienced significant psychological injuries as a result of his observation of domestic violence within the home and as a result of the physical abuse inflicted upon his twin brothers. J.N.S. and, before his death, D.S. each sustained multiple fractures and bruises from injuries that were described as non-accidental.

In her brief on appeal, M.S. raises the following arguments:

POINT I: SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WERE AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT A FINDING THAT THE APPELLANT WAS UNWILLING OR WAS UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO M.S.

D. THE COURT'S FINDINGS THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

We reject these arguments and affirm the order of termination of parental rights of M.S. and committing the minors, C.A.G. and J.N.S., to the guardianship of the Division of Youth and Family Services (the Division or DYFS).

Natural parents have a fundamental liberty interest to raise, care for and maintain custody of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The State through its parens patriae power in acting to protect a child from serious harm, either physically or emotionally, can terminate one's parental rights, either partly or entirely. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

"When the child's biological parents resist the termination of their parental rights, the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. Our inquiry, however, is not to focus on the natural parents' adequacy and fitness, but instead whether the parents can provide the nurture and affection the child requires without any ensuing harm to the child. New Jersey Div. of Youth & Family Services v. A.W., 103 N.J. 591, 607 (1986).

It is not enough to terminate parental rights through a mere "showing that a child would be better off with an adoptive parent rather than with the biological parent." In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999) (citations omitted). Generally, parents who have maintained a relationship with their children will not have their rights terminated. Ibid. "Conversely, when an adoptive parent has provided the child with a permanent home, courts often protect the child from interference by a biological parent with whom the child has no relationship." Ibid. (citing E.E.B. v. D.A., 89 N.J. 595, (1982); Sorentino v. Family and Children's Society of Elizabeth, 74 N.J. 313 (1977)).

The burden of proof is placed on the moving party, who is seeking to have the parental rights terminated, "to demonstrate by clear and convincing evidence" that "serious and lasting harm to the child" will continue unless parental ties are severed. J.C., supra, 129 N.J. at 10 (citing Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17)). The best interests of the child standard is implemented to balance the rights of the natural parents with the State's responsibility as parens patriae. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The standard requires that the following criteria be met by clear and convincing evidence in order to terminate parental rights:

(1) The child's health and development have 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. Such harm may include evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division 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.

[N.J.S.A. 30:4C-15.1(a).]

These four criteria overlap one another in order to "provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348 (1999).

A determination of whether a parent is fit or unfit is "extremely fact sensitive" requiring "particularized evidence" addressing "the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). The standard of review of a trial court's findings and conclusions is one of deference to the court's evaluations of credibility and its "feel of the case" given the court's opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). The court's findings will not be overturned unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

In this case, Judge Strelecki reached her decision after a thorough and comprehensive review of the evidence in light of the applicable law. Defendant's assertions that the court's findings and conclusions lack evidential support fail. The court's decision was consistent with the evidence and is entitled to deference.

As to the first prong, we are satisfied that the children's health and development have been and would continue to be endangered in M.S.'s care. M.S.'s children have been severely harmed physically on multiple occasions, concluding with the death of D.S. Further, the children were injured by witnessing the relationship between M.S. and her husband, which was filled with verbal abuse perpetrated upon M.S. by her husband.

On March 6, 2002, a fact finding hearing took place and M.S. stipulated that, while in her custody, D.S. suffered two parietal skull fractures, a fracture of the right femoral diaphysis, fractures of the right tenth rib and left seventh, eighth, ninth and tenth ribs and J.N.S. suffered a left linear skull fracture and fractures of the left sixth and seventh ribs.

M.S. stated that on October 12, 2001, she accidentally dropped J.N.S. on his head and fell on top of D.S. M.S. did not immediately seek medical attention for the children since she felt they appeared fine. Six days later, on October 18, 2001, M.S. finally took D.S. to the hospital. Dr. Hodgson, a pediatrician, specializing in Child Protection, testified on behalf of the Division. According to Dr. Hodgson, whom the trial judge found credible, D.S.'s injuries occurred on multiple occasions. Further, D.S.'s injuries were inconsistent with M.S.'s explanation.

On March 14, 2003, J.N.S.'s pediatrician discovered a hematoma under his tongue. On March 25, 2003, J.N.S. had to be taken to the hospital for bruises to his right thigh, right femur, left eye region, and left shoulder. M.S.'s explanation was that J.N.S. fell. Dr. Hodgson testified that J.N.S.'s injuries were inconsistent with a fall.

In May 2003, it was discovered at D.S.'s school that he had blood in his ear. M.S. claims not to have known about the presence of blood nor of any injury that could have caused it.

On June 4, 2003, D.S. had difficulty breathing and had multiple areas of significant trauma to his body. D.S. was rushed to the hospital in cardiac arrest. As a result, D.S. died.

C.A.G., while at the hospital, stated that M.S. routinely hit the twins when they were bad. Also, C.A.G. stated that M.S. and her husband have beaten the twins with a belt. J.N.S. was then examined and the medical staff discovered a large area of bruising on the right side of his face with purulent drainage, an old healing scar on his chest and forearm, a fresh linear parallel abrasion on the left flank and multiple bruises on his right foot. Dr. Hodgson testified that J.N.S. had "significant fresh older injuries on his body, strongly suggestive of non-accidental, abusive injuries." We agree with the trial court that C.A.G., while not harmed physically, was traumatized severely from witnessing such horrifying events.

Dr. Hodgson testified that D.S. was killed by repeated forceful blows by an adult to his chest. The doctor hypothesized that the blows could have been kicks, punches or objects. She detailed in her testimony that D.S. was "covered stem to stern, externally and internally, with signs of blunt force trauma."

On June 9, 2003, the Medical Examiner determined D.S.'s death was the result of a homicide. M.S. was charged with and convicted of aggravated manslaughter of D.S. As of the date of this opinion, M.S. awaits her sentencing hearing.

Thus, the evidence amply supports the trial court determination that the requirements governing the first prong of the best interest standard were met. Over the course of two years, M.S. committed or tolerated brutal acts of abuse upon her twin sons that were witnessed by her other son, C.A.G. M.S. has clearly endangered the health and development of J.N.S. and C.A.G.

As to prong two, M.S. has not been able to provide a stable and harm free environment for her children. She continued to live with her abusive husband. The children have been hurt both emotionally and physically while in her sole care. M.S. failed to provide the children with the necessary medical care they needed when they were injured.

Separating the children from their foster parents would cause serious and enduring emotional or psychological harm to the youngsters. They have been subjected to and witnessed continuing physical and mental abuse of each other and their mother in the past. Dr. Rachel Modiano, a psychologist, testified on behalf of the Division. C.A.G. described to Dr. Modiano that his mother would hit the twins and she has been convicted for causing D.S.'s death. C.A.G. was traumatized and learned the only way to escape such forceful beatings was always to be a "good boy." According to Dr. Modiano, C.A.G. wants to remain with Mr. and Mrs. C. C.A.G. described his current home "as happy and hopeful" as opposed to the "dark, scary and hurtful" home he had previously known.

According to Dr. Modiano, J.N.S. was severely traumatized by his mistreatment and abuse in his prior home. J.N.S. regressed and would not express himself through speech. These characteristics have come full circle after J.N.S. moved into Mr. and Mrs. C.'s home. Dr. Modiano expressed that J.N.S. is a different child now than when he was first placed in the foster home. J.N.S. has made great strides in his cognitive growth and language skills and is doing well overall.

Dr. Modiano's evaluations and observations demonstrated that the children have bonded with their foster parents, Mr. and Mrs. C. The foster home is the home they are most familiar and feel most comfortable. In her expert opinion, the children are thriving and their individual needs are both understood and accommodated by Mr. and Mrs. C. This led to Dr. Modiano's conclusion that "removing the children at this time would cause them emotional distress and likely lead to regression in their functioning." Thus, prong two is clearly and convincingly satisfied.

As to prong three, the Division made considerable effort to provide M.S. with the ability to raise her children. The Division referred M.S. to Family Growth for independent psychotherapy and to CHS' Intensive Supervision Program for parenting instruction and counseling. In addition, the Division arranged for M.S. to receive therapy at her home and it funded the children's day care. Therefore, we agree with the trial court that the Division "made a diligent and reasonable effort to provide services to help these parents correct the circumstances which led to the children's placement outside the home."

Further, there are no alternate caretakers available to the children. M.S. identified the maternal grandparents; however, M.S. has previously asserted that she was sexually abused by her father. O.S., a paternal relative, in North Carolina was also recommended, but North Carolina Interstate rejected that possibility because of the presence of undocumented aliens in O.S.'s home. Consequently, we agree with the trial court that it serves no purpose to look further for alternative placement since the two remaining children "are now back with the only home they knew which was a home that was safe, nurturing, loving, caring, and that is with the foster couple who now have them."

As to prong four, the children would not be harmed if M.S.'s parental rights were terminated. M.S. has now been convicted of the death of one of her children and endangering the welfare of that deceased child and J.N.S. Though M.S. has not been sentenced yet for these crimes, it is likely that she will receive a custodial term that would render her unavailable to discharge the duties of a parent. The foster parents have made it clear that they would like to adopt the children and continue to satisfy the children's physical and emotional needs. It is reported that both children have thrived in the loving and patient care of the foster parents. Thus, it appears the foster parents are currently providing and will continue to provide needed stability in a loving and caring environment for the two children. We are satisfied, as was the trial court, that the termination of M.S.'s parental rights will not do more harm than good.

 
Affirmed.

(continued)

(continued)

13

A-4537-04T4

RECORD IMPOUNDED

December 13, 2005