NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.E.Q.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4975-04T44975-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

M.E.Q.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF D.M.,

A Minor.

__________________________________

 

Submitted: November 28, 2005 - Decided:

Before Judges Cuff and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket Nos. FL-04-140-05 and FN-04-100-05.

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

Peter C. Harvey, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Angela N. Domen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for D.M., a minor (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.E.Q., the biological mother of seven year old D.M., appeals from the April 22, 2005 order appointing M.H., the maternal grandmother, as the child's kinship legal guardian. We affirm.

D.M. was born April 5, 1998, to M.E.Q. and E.M., who returned to the Ukraine before D.M.'s birth. E.M. continues to reside in the Ukraine; he has never met his son. The Division of Youth and Family Services (DYFS) received eleven referrals concerning M.E.Q. and her children between December 1, 1988 and August 19, 2004. All of the referrals were unsubstantiated, except for the January 9, 2004 referral.

On that date, DYFS received a referral from D.M.'s school. The referant expressed concern that M.E.Q. may be mentally ill and D.M. was not receiving proper parenting. Specifically, D.M. had been sent home from school fifteen to twenty times because of head lice and he was chronically absent or late. M.E.Q.'s response to questions from the school raised concerns about her mental stability.

In response to the January 2004 referral, D.M. was placed with his maternal grandmother, M.H. Initially, because of M.E.Q.'s unpredictable behavior, M.H. requested that visits between the boy and his mother only occur through DYFS. Recently, visits have occurred at M.H.'s home. M.H. indicated that she is willing to care for D.M. until he reaches age eighteen, but she does not want to adopt him.

On August 19, 2004, DYFS filed a complaint seeking custody of D.M. An order to show cause was entered continuing the removal of the child and his placement with his maternal grandmother. Subsequent orders were entered by Judge Page directing M.E.Q. to receive and undergo psychotherapy. A fact-finding hearing commenced on January 21, 2005. At the conclusion of the hearing, Judge Page found that D.M. was an abused and neglected child and entered an order that kinship legal guardianship was an appropriate and acceptable permanency plan.

DYFS offered psychological and psychiatric evaluations as well as parenting classes to M.E.Q. Because M.E.Q. was uncooperative at the evaluation, the psychiatrist was unable to make a diagnosis. M.E.Q. was scheduled for a second psychiatric evaluation, but she failed to attend because it conflicted with her parenting class. M.E.Q. was terminated from the parenting program because she failed to attend two scheduled intake sessions. She did, however, eventually complete the parenting classes.

M.E.Q. was born November 19, 1965; she was thirty-nine at the time of the trial. The record reveals a long history of mental instability commencing with inpatient drug/alcohol treatment at the age of seventeen. She is the mother of two other children. Her first child, who is over eighteen years of age and not subject to this proceeding, was raised by his maternal grandmother. A third child was stillborn in 2000. The record suggests that the death of this child aggravated M.E.Q.'s mental instability. She has been diagnosed as paranoid but she refuses to acknowledge that she has a mental disorder which, in turn, interferes with appropriate treatment.

M.E.Q. currently lives with a friend. In exchange for housing, M.E.Q. cooks, cleans, does the laundry, and cares for the lawn. The house is currently being remodeled. Once it is finished, M.E.Q. reported that D.M. would have his own room. At trial, M.E.Q. was unemployed, but claimed to be attending Gloucester County Community College on a full-time basis to obtain a nursing degree.

The record reveals that M.E.Q. had been hospitalized shortly before the trial in the Behavioral Unit at John F. Kennedy Hospital where she was admitted for a delusional disorder. She was discharged in March 2005 and instructed to attend group therapy three times a week.

On March 29, 2005, DYFS filed a motion to amend the complaint to enable the maternal grandmother's application for kinship legal guardianship to proceed. Following a three-day trial, Judge Page found that the requirements for kinship legal guardianship had been met by clear and convincing evidence. In one order dated April 22, 2005, Judge Page appointed M.H. as D.M.'s kinship legal guardian and ordered supervised visitation for M.E.Q. A second order of the same date terminated the litigation.

In his April 20, 2005 oral opinion, Judge Page commenced his opinion by stating that DYFS had satisfied the burden of proof. He stated:

I am satisfied by more than clear and convincing evidence, and frankly there is no reasonable doubt at this time, that the best interests of D[.M.], and all the standards of the statute require that guardianship be awarded to his grandmother [M.H.].

Judge Page proceeded to find that M.E.Q. suffered from a "severe active mental illness in the nature of paranoia with delusional behavior." He noted that she had been hospitalized recently and discharged just before the commencement of trial. He found that she was unfit to parent her son and that her refusal to cooperate with evaluations indicated that she would not be fit to parent in the foreseeable future. Ultimately, Judge Page found that M.E.Q.'s mental state interfered with her ability to provide her son with an education and clean surroundings.

Judge Page found that the strongest evidence of M.E.Q.'s inability to care for her son was provided by her testimony. He characterized M.E.Q.'s testimony as disjointed, rambling and evidential of the paranoia that afflicts her. Indeed, at trial she asserted that she is terrorized by a crime ring involved in prostitution, drug dealing, escort services, counterfeiting and money laundering. She claims her phone is tapped and her e-mail is compromised. She requested that the FBI relocate her. Notably, throughout his April 20, 2005 opinion, M.E.Q. interrupted the judge and attempted to contradict his findings. Ultimately, M.E.Q. was removed from the courtroom because her conduct interfered with the delivery of the opinion.

Judge Page found that M.E.Q. had received notice of the proceedings. He also found that the father of the child had received adequate notice. He found that the father left the country before D.M.'s birth and has never seen the child. He concluded that the father has abandoned D.M.

The judge then found that the best interests of the child were advanced by placement with his maternal grandmother. Judge Page found that the maternal grandmother was a suitable guardian for her grandson. She was committed to raising her grandson until he was an adult and there was no disqualification, such as a criminal history. At the time of trial, D.M. had resided with his maternal grandparents for fifteen months. During that time, D.M. overcame the turmoil of his early life and began to thrive. The child reported through his legal guardian that he was happy with his grandparents. The boy noted that he would like to visit his mother but when "she gets well." The judge ordered supervised visitation between the child and M.E.Q.

The judge found that DYFS exercised reasonable efforts to promote unification of mother and son. He found that M.E.Q. eventually attended parenting class, but she failed to cooperate with the required psychiatric evaluation which, in turn, frustrated the ability to provide psychiatric services to her. Therefore, Judge Page granted the order designating M.H. as D.M.'s kinship legal guardian.

On appeal, M.E.Q. argues that the record does not contain substantial credible evidence to support the trial judge's findings that the statutory criteria for kinship legal guardianship were established by clear and convincing evidence. Specifically, M.E.Q. contends that DYFS did not make reasonable efforts to reunify her with her son. She also contends that the procedure was fundamentally unfair because the father received inadequate notice of the proceeding, the record presented by DYFS was inadequate, and the maternal grandmother was not adequately apprised of the obligations of kinship legal guardianship. We disagree.

Although parents have a constitutionally-protected right to have relationships with their children, this right is not absolutely free from governmental intrusion. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 600 (1986). Because the State is responsible for monitoring child welfare, parental rights may be limited when doing so is in the best interests of the child. K.H.O., supra, 161 N.J. at 347.

One such limitation on parental rights is the implementation of a kinship legal guardianship. N.J.S.A. 3B:12A-6d states:

The court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:

(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;

(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;

(3) in cases in which the division is involved with the child as provided in subsection a. of section 8 of P.L.2001, c. 250 (C.30:4C-85), (a) the division exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and

(4) awarding kinship legal guardianship is in the child's best interests.

[N.J.S.A. 3B:12A-6d(1) to (4).]

Although found in the provision for termination of parental rights, N.J.S.A. 30:4C-15.1c defines "reasonable efforts" as the agency's attempts to help the parent remedy the problem that led to the child's placement. Examples include helping the parent develop a plan for services, providing services to further the reunification of the family, informing the parent of the child's health and progress, and facilitating visits. Id. at (1) to (4). We conclude that it is proper to measure the efforts undertaken by DYFS in this case by this standard. Unlike a termination of parental rights, a kinship legal guardianship is not necessarily a permanent arrangement. It can be vacated by the court if the judge finds that the parent is no longer incapacitated and termination of the guardianship is in the child's best interests. N.J.S.A. 3B:12A-6f. Certainly, if reasonable efforts, as defined in relation to parental termination, are satisfied, then the use of the same standard for kinship legal guardianship should satisfy the statutory standard.

In the present case, DYFS arranged for a psychiatric evaluation with Dr. Krefetz on February 25, 2004, but because of M.E.Q.'s failure to cooperate, the doctor could neither diagnose M.E.Q. nor make a recommendation about her capacity to parent. A second, court-ordered psychiatric evaluation was arranged for November 30, 2004, but M.E.Q. failed to attend. She later informed DYFS that the reason for missing this second evaluation was a scheduling conflict, a parenting class at the same time. DYFS did not attempt to reschedule the evaluation. Psychotherapy could not be provided until M.E.Q. completed the psychiatric evaluations. She did not complete a psychological evaluation with Dr. Crawford until November 1 and 2, 2004.

M.E.Q. was also scheduled to attend sessions at Horizon Counseling Center, but failed to keep appointments scheduled for September 16, October 14, and October 21, 2004. Because of her failure to attend the sessions, M.E.Q. was also terminated from the parenting classes in which she was originally enrolled. She did, however, eventually complete the parenting classes.

Judge Page found that M.E.Q.'s failure to cooperate with the evaluations prevented the diagnosis needed for the provision of appropriate counseling. The judge highlighted the psychiatrist's report as evidence of M.E.Q.'s uncooperative nature. Specifically, the psychiatrist wrote that re-evaluation was needed because he could not make any conclusions about her capacity to parent because M.E.Q. was uncooperative. In reference to the psychologist's report, the judge found that when anyone is close to diagnosing M.E.Q.'s problems, she avoids treatment and fails to provide the needed information. Additionally, he found that M.E.Q. fails to recognize that she has a problem. The record demonstrates that the lack of psychotherapy was attributable to M.E.Q.'s failure to cooperate and participate in the services provided.

We also reject M.E.Q.'s argument that inadequate notice to the father of D.M. precludes the entry of an order for kinship legal guardianship. The record reflects that M.E.Q. frustrated many attempts to identify D.M.'s father. It is undisputed that he left this country and returned to the Ukraine before the birth of his son and that he has never seen his son or provided any financial support for his son.

The agency's efforts to provide notice to the father must be measured by the information provided to it by the only person in possession of the relevant information. The record also reflects that once M.E.Q. provided the agency with the father's contact information that it acted with alacrity to provide notice to him of the proceeding. We also question the standing of M.E.Q. to raise the issue of the adequacy of notice to the father. See State v. Norfleet, 67 N.J. 268, 276 n.7 (1975) (generally an individual will only be permitted to seek judicial vindication of his own rights). Moreover, in the face of a record that demonstrates that the father has abandoned his parental responsibilities to his son, see In re Guardianship of D.M.H., 161 N.J. 356, 376-77 (1999) (detailing the statutory and case law standard of abandonment), we discern no purpose to inserting a procedural barrier that frustrates the ability of the court to enter relief to alleviate the harm caused by the custodial parent and to foster the best interests of the child.

In short, we are satisfied that the facts as found by Judge Page are well-supported by the trial record and that DYFS established the statutory criteria for kinship legal guardianship by clear and convincing evidence. We affirm the order designating M.H. as D.M.'s kinship legal guardian substantially for the reasons expressed by Judge Page in his April 20 and April 21, 2005 oral opinions.

 
Affirmed.

The following day, on April 21, 2005, Judge Page rendered a supplemental oral opinion in which he made specific reference to the testimony of the various witnesses.

M.E.Q. was allowed to return to the courtroom before the conclusion of Judge Page's oral opinion.

(continued)

(continued)

13

A-4975-04T4

RECORD IMPOUNDED

December 15, 2005