NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.M. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-0432-05T40432-05T4

A-0531-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M. and O.S.,

Defendants-Appellants,

IN THE MATTER OF THE GUARDIANSHIP

OF M.S., Y.S.M., A.D.S.M.,

Minors.

 

Submitted: April 24, 2006 - Decided June 2, 2006

Before Judges Fall, Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket Number FG-20-91-03.

Yvonne Smith Segars, Public Defender, attorney for appellant M.M. in A-0432-05T4 (William J. Sweeney, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant in A-0531-05T4 (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent in both appeals (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann A. Huber, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minors in both appeals (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

PER CURIAM

In these consolidated guardianship appeals, defendants M.M. and O.S. appeal from an order entered on August 12, 2005, as amended by an order issued on August 18, 2005, terminating their parental rights to their children M.S., Y.S.M. and A.D.S.M. pursuant to N.J.S.A. 30:4C-15.1a, and placing those children in the care, custody and guardianship of plaintiff New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes, including placement for adoption.

M.M. gave birth to three children fathered by O.S., as follows: M.S., a female child born on November 11, 1995; Y.S.M., a female child born on June 7, 1997; and A.D.S.M., a male child born on June 10, 1998.

A.D.S.M. has been in foster placement care since February 10, 2002, after being removed on an emergency basis due to an incident of neglect. M.S. and Y.S.M. were placed in foster care pursuant to an order entered on February 22, 2002, in a child abuse and neglect action, docket number FN-20-126-02F, instituted against M.M. and O.S. The subject complaint for guardianship, docket number FG-20-91-03F, was filed by DYFS against M.M. and O.S. on April 29, 2003.

The Division has been involved with this family since September 14, 2001, when it received a referral from the school of M.S. and Y.S.M. stating that M.M. had been repeatedly failing to pick up the children from school; on that day, the children were in school until 6:00 p.m., and M.M. was found in her home staring out the window, stating she could not handle the children anymore. M.M. admitted to a history of seizure and psychiatric problems and was taking medication. O.S., who was to pick up the children from school, admitted he had forgotten. Neglect was substantiated by the Division; the children remained in the home.

On January 28, 2002, the Elizabeth Police Department made a referral to the Division after A.D.S.M., then age four, was found wandering alone on the streets of Elizabeth, one block from Routes 1 and 9, at 6:30 p.m. It took almost six hours before the parents reported to the police that the child was missing. Neglect was substantiated by the Division, which effected an emergency removal and placement of the child in foster care pursuant to N.J.S.A. 9:6-8.29.

On January 29, 2002, a child abuse and neglect complaint pursuant to N.J.S.A. 9:6-8.21 to -8.73 was filed in the Family Part under docket number FN-20-126-02F, resulting in issuance of an order on that date, placing A.D.S.M. in the care and custody of DYFS, and scheduling a hearing for February 14, 2002, concerning the care, custody and placement of all three children. On January 29, 2002, M.M. and O.S. signed an in-home case plan agreement as to M.S. and Y.S.M., agreeing to properly care for and supervise those children at all times.

An investigation by DYFS disclosed that M.S. and Y.S.M. had poor school attendance and that Y.S.M. had been exhibiting speech problems and anti-social behavior at school. At the February 14, 2002 return date, the parties entered into a stipulation, memorialized by a court order issued on that date, under which it was stipulated by M.M. and O.S. that neglect had occurred. M.M. and O.S. waived their right to a fact-finding hearing, and the matter was scheduled for a review on March 14, 2002.

On February 19, 2002, M.M. and O.S. signed a voluntary case plan with respect to M.S. and A.D.S.M., under which they agreed that O.S. would be the primary caretaker for the children due to M.M.'s inability to provide adequate care, and that he would not leave the children alone with M.M.; A.D.S.M. remained in foster care placement. M.M. and O.S. acknowledged that failure to comply with that agreement would result in removal of M.S. and Y.S.M. from the home.

However, on February 22, 2002, the Family Part issued an order placing M.S. and Y.S.M. in the care and custody of DYFS after it was determined that O.S. had been leaving the children alone with M.M., and was not returning home at night to care for them; M.S. and Y.S.M. were placed in foster care. The court also ordered an immediate psychiatric evaluation of M.M. On that date, M.M. was transported by a DYFS caseworker to Trinitas Hospital, where she was examined and hospitalized due to her psychiatric problems; she remained hospitalized until March 13, 2002.

On March 14, 2002, a review hearing was conducted in the Family Part, resulting in issuance of an order continuing the custody of all three children with the Division; requiring paternity testing; directing further evaluations of the parents and children; and scheduling a fact-finding hearing.

A fact-finding hearing was conducted in the Family Part on May 8, 2002. On May 14, 2002, the court issued an order finding that M.M. and O.S. had committed acts of neglect; custody was continued with the Division, and the children remained in foster care.

Additional evaluation, treatment, parenting-skills and supervised-visitation services were provided by the Division to the parents and children over the next approximately eleven months, with periodic compliance hearings being conducted by the Family Part. However, conditions did not improve. M.M. continued to struggle with her psychiatric condition, had failed to complete recommended parenting-skills classes and had not maintained a regular visitation schedule with the children. O.S. had also failed to follow through on the Division's referrals for counseling and training, and failed to visit with the children on a regular basis. Possible relative placements were investigated and ruled out by the Division.

On January 23, 2003, the Family Part conducted a permanency hearing, and adopted the Division's plan of termination of parental rights and select home adoption.

The Division then filed a guardianship complaint against M.M. and O.S. on April 29, 2003, seeking termination of their parental rights. The issues in the guardianship complaint were tried non-jury before Judge William A. Daniel over a period of sixteen days between September 20, 2004 and May 31, 2005.

Dr. Guillermo Gallegos, a clinical psychologist, testified concerning his evaluation of both parents; D.C., the paternal grandmother; and J.P., M.M.'s paramour. Dr. Gallegos stated that testing of O.S. disclosed that he was within the borderline range of intellectual functioning, between the mental retardation and low-average ranges. Dr. Gallegos found that O.S. exhibited signs of emotional instability and mood fluctuations. Dr. Gallegos stated O.S.'s judgment was poor and he had very limited insight as to his own motives and behavior. Dr. Gallegos concluded that O.S. lacked the cognitive or personality characteristics necessary to provide the children with adequate parenting. Dr. Gallegos also found that there was not a strong bond on the part of the children toward their father. Dr. Gallegos opined that given the special needs of these children, O.S. would not be capable of providing the type of parenting, constant monitoring and guidance that they will require. Dr. Gallegos explained that the children have significant behavioral and developmental difficulties that O.S. would not be able to properly address due to his own personality and intellectual limitations.

With respect to M.M., Dr. Gallegos testified that her testing disclosed that her intellectual functioning was in the borderline range, between mild retardation and low average, and that she presented a number of deficits in her ability to function independently and in her decision-making process. Dr. Gallegos explained that these conditions significantly interfered with her ability to properly parent these children, noting that "[t]he children present a challenge to any parent[.]" Dr. Gallegos found that although M.S. was "possibly bonded" to M.M., Y.S.M. and A.D.S.M. were not.

Dr. Gallegos also conducted an evaluation of D.C., the paternal grandmother, as a potential caretaker of the children. Dr. Gallegos stated that D.C. also tested as borderline, between mild retardation and low average, in her intellectual functioning. Dr. Gallegos concluded that because of various personality problems, D.C. was not equipped to properly parent these children, nor had she advanced a realistic parenting plan.

Dr. Gallegos testified that M.M.'s paramour, J.P., would not be a proper parental figure for the children because of the nature of the relationship between him and M.M., noting that M.M. had informed him that "she was not in love with [J.P.]" and that although he had been helpful to her "she still had feelings for [O.S.]" Dr. Gallegos stated he did not believe that J.P. was committed to the children, and "that other than having established a relationship with the children's mother, he has no investment in the children especially when these children will present difficulties as they grow up."

The behavioral and developmental problems of these children are thoroughly documented in the record on appeal. A psychological evaluation of A.D.S.M. conducted by Dr. Caryn D. Phillips disclosed that he had been exhibiting tantrums, poor social skills, aggression and developmental delays. In her report dated July 29, 2003, Dr. Phillips explained that A.D.S.M. "needs a therapeutic milieu, speech and language intervention, and behavior modification[]" to reduce his anxiety and frustration and to teach him coping skills to help him interact more smoothly at home and in peer situations. A.D.S.M. was also evaluated on September 10, 2003, by a neurologist, Dr. Zeenat Malik, who recommended that the child "continue with the therapeutic learning center[,]" that his medication management continue, and that he needed to be in a special education setting. Subsequent child study team evaluations confirmed those findings.

Psychological evaluations of M.S. diagnosed her as suffering from moderate mental retardation, with a mixed receptive-expressive language disorder, requiring a special education setting. She also required life-skills training; speech therapy; and an occupational therapy evaluation to address visual-motor weaknesses. Psychological evaluations of Y.S.M. diagnosed her as suffering from the same disorders as M.S., with similar needs and recommended treatment.

On August 12, 2005, Judge Daniel delivered a comprehensive oral decision, finding that the Division had established by clear and convincing evidence each prong of the four-prong "best interests" statutory test set forth in N.J.S.A. 30:4C-15.1a. In reaching his conclusions, the judge credited the testimony of Dr. Gallegos, noting that the doctor's "opinions were unrebutted."

In making his findings the judge concluded that

safety, health and development of the children have been endangered by the parental relationship, and would continue to be so endangered if it were to continue. The judge recited in detail and made findings concerning the incidents that had led to removal of the children from the home, noting that the children had been placed in danger. The judge also discussed at length the limitations of M.M. and O.S., and concluded that "the parents in this case are either unwilling or unable to eliminate the harm facing these children or they're unable or unwilling to provide a safe and stable home for the children."

The judge found significant the fact that M.M. and O.S. still cannot adequately parent the children "despite all of the services provided by the Division, inclusive of treatment and evaluations, and parenting time sessions[,]" and stated that "this court is not going to allow or wait until more severe harm comes to these children before I conclude these parents are unable to adequately parent them." The judge explained:

Our . . . Supreme Court has told us in [In re Guardianship of K.H.O., 161 N.J. 337 (1999)] that the court need not wait until actual harm occurs before removal of the child is warranted.

Now, I've concluded actual harm occurred in this case, but . . . the court is not required to wait until more severe harm occurs, such as physical harm. These children were not physically harmed by their parents. This is not a case of physical child abuse. This is a case of neglect. It's a case of parents being unable to ensure the safety of these children, a stable home for these children.

Now, I want to focus in on [M.M.] at this point. I am concluding . . . although she may want to eliminate the harm, she is unable to progress to the point where she is stable enough to care for these children[.]

* * * *

[O.S.], at this time, is unfit to regain the custody of his children and I say that based on what I heard from Dr. Gallegos during this trial and based on the other medical provider reports, including those of Dr. Oquendo, Dr. Kleinplatz as well.

He may want to. I'm sure he wants to, but . . . I'm concluding he doesn't have the ability to eliminate the harm. He doesn't have the stability to eliminate the harm. His plans have been deemed unacceptable [by DYFS] and this court agrees that they are unacceptable.

In addressing the issue of whether the delay of permanent placement of these children would add to the harm, the judge stated in pertinent part:

Now I've considered the fact that this is a select home adoption case. I'm concluding that the delay of permanent placement will add to the harm of these children. These children . . . have now been in foster care for three years and they need permanency. The caretakers of the children have written to the court indicating . . . make a decision, judge. Permanency must be --- whatever it is, it has to be arrived at.

Judge Daniel outlined the extensive services provided to this family by the Division in an effort to assist the parents in correcting the circumstances that led to removal of the children from their care, and found they were reasonable, although not successful.

The judge also concurred with the opinion of Dr. Gallegos that the termination of their parental rights would not do more harm than good. In reaching that conclusion, the judge emphasized that the parents will not "for as long as this court can perceive, be able to provide adequate stable housing for these children and ensure their safety." The judge also stated that "for as long as this court can foresee, [their parents] will not be able to provide a permanent, safe, stable relationship for these children ensuring their safety[,]" finding that "[t]he fact that services were provided to them and they have not yet progressed to that point, leads this court to make that conclusion." The judge determined that the select home adoption permanency plan advanced by the Division would provide the children with the type of stability and services they require, particularly in light of their special needs.

In considering the fact that M.M. and O.S., themselves have special needs, the judge stated:

[T]he statute . . . speaks to the best interest of any child, not the presence or absence of culpable fault on the parent's part and the fact that parents may be morally blameless is not sufficient to tip the scales in their favor. I have to remain focused on the fact that the safety, health, and well-being of these children are of paramount concern to this court and that's what I did when arriving at this decision.

* * * *

So, for me to not allow termination of parental rights to occur, would, at this point, stand as a roadblock to adoption and permanency and this court will not allow that to occur[.] . . .

The judge also found that potential relative caretakers had been properly ruled out, that kinship legal guardianship was not an appropriate alternative, and that adoption was the appropriate form of permanency in this case.

On appeal, M.M. and O.S. argue that entry of the order for guardianship constituted reversible error because the Division failed to establish by clear and convincing evidence the requisite elements contained in N.J.S.A. 30:4C-15.1a(1) through (4).

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. K.H.O., supra, 161 N.J. at 346 (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid. The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(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 standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings 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. of Am., 65 N.J. 474, 484 (1974).

Applying these principles in the light of the written arguments advanced by the parties, we are satisfied that the evidence overwhelmingly supports the findings and conclusions of Judge Daniel in his comprehensive and thoughtful oral opinion delivered on August 12, 2005.

We would be remiss if we did not recognize the tragic circumstances of this case. As Judge Daniel has noted, not only do these children have significant special needs that require diligent, competent parenting to provide them with a realistic opportunity for appropriate intellectual and emotional development, both M.M. and O.S. have similar special needs, needs that have precluded them from providing their children with the quality of parenting they require in order to prevent the continued endangerment of their health, safety, welfare and development. Clearly, the termination of the parental rights of M.M. and O.S. will not do more harm than good; indeed, it will provide these children with an opportunity to achieve permanency in an environment conducive to their health, safety and proper development, clearly an opportunity that their parents were deprived of, and one they cannot extend to their children. The evidence clearly and convincingly supports the conclusion of the trial judge that the goal of permanency in a safe environment cannot not be achieved by maintaining the parental relationship with M.M. and O.S.

Affirmed.

 

In rendering his decision, the trial judge noted that the relationship between M.M. and J.P. had ended.

(continued)

(continued)

19

A-0432-05T4

RECORD IMPOUNDED

June 2, 2006