NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1762-05T41762-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.B.,

Defendant-Appellant,

___________________________

IN THE MATTER OF THE

GUARDIANSHIP OF

M.C.S.,

a Minor.

___________________________

 

Submitted June 6, 2006 - Decided June 22, 2006

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Chancery Division, Family

Part, Mercer County, FG-11-09-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General,

attorney for the respondent (Patrick DeAlmeida, Assistant Attorney General,

of counsel; Leila Lawrence, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian, attorney for the minor

(Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, B.B., appeals from a trial court order, entered after a three-day trial, terminating her parental rights to her daughter, M.C.S. We affirm.

I

At the trial, the Division of Youth and Family Services (DYFS) presented undisputed testimony that M.C.S. was taken from B.B. on June 17, 2003, after DYFS found the child living in filthy conditions in an overcrowded house with a dozen dogs. The child was sleeping on a mattress strewn with dog feces. Her mother, B.B., had been feeding her cake and milk instead of proper meals, and the child, who was then six years old, weighed 135-140 pounds.

After the first day of hearing on May 31, 2005, Judge Strelecki was not satisfied that DYFS had proven that it had made sufficient efforts to place the child with family members, and she directed DYFS to provide further information as to whether J.P., the child's paternal grandmother, would be a possible alternative placement. When the trial resumed on August 1, 2005, DYFS presented detailed testimony from a social worker, Kimberly Stolow, concerning her efforts to identify relatives who might be willing to care for the child. All of the relatives she contacted were either not willing to care for the child or were ruled out for health reasons. She specifically testified that when she telephoned J.P., who lived in California, J.P told her that she had health problems and also appeared to have memory problems. J.P. did not respond to the social worker's request for medical information, nor did she confirm in writing that she was interested in caring for the child. Stolow also testified on September 15, 2005, that in a telephone conversation with J.P, "[s]he had actually stated to me that she couldn't take [M.C.S.] but that there [were] a lot of family members that could."

Stolow also testified that throughout the year following the child's placement in foster care, DYFS provided services to B.B. to assist her in finding housing and employment, as well as parenting classes. Nonetheless, B.B. was unable to maintain employment, and her behavior became erratic, leading Stolow to conclude that she had ceased taking her psychiatric medication. B.B. was also unable to understand the severity of her daughter's weight problem or the proper way to deal with it. She did not support the child's efforts to lose weight, and persisted in over-feeding her at visits, even hiding candy in gifts that she gave the child. Stolow testified that in September 2004, the agency abandoned its efforts at reunification

due to [B.B.'s] inability to maintain stability in her life and inability to control her behavior.

She just could not accept responsibility and did not prove that she understands the nutritional needs of her daughter

Tracy Shehab, a court-appointed special advocate (CASA) worker, testified that she had observed numerous visits between B.B. and M.C.S., and that she had observed B.B.'s inappropriate behavior during these visits. She described one visit in which Shehab took M.C.S. to the restroom during the visit:

I, as I always do, helped walk [M.C.S.] to the restroom and [B.B.] was a little upset about that and sort of took [M.C.S.] herself and tossed [M.C.S.] in the restroom and started ranting and raving in the hallway at the Division office. . . . It . . . actually became so disruptive that a security guard had to come around the corner and stop her behavior, pull her away.

In reading the transcript of the hearing, we also noted that despite prior admonitions from the judge, [B.B.] repeatedly interrupted Ms. Shehab's testimony with hostile comments.

Dr. Lee, a psychologist, testified based on his evaluation of B.B. that she suffered from bi-polar disorder and possibly attention deficit disorder, and she "continued to present [as] generally less mature than expected for her chronological age . . . very egocentric and self-absorbed, having poor social and interpersonal boundaries, a propensity to unstable relationship[s] and activity." Based on his psychological evaluation of B.B. he concluded that she was not able to function as "an independent care giver or parent to a minor child," and that "[o]verall her mental status . . . remained unstable to the point where that would expose a child to unsafe and potentially dangerous situations." He further testified on cross-examination that even if she obtained stable housing and employment, those would only be "a small piece of the puzzle" in terms of her ability to function as a parent.

Dr. Lee also conducted a bonding evaluation with B.B. and the child. He observed that B.B.

presented as generally rather disorganized and oftentimes impulsive [and] hostile. . . Observations of the child's interaction with the birth mother . . . were not particularly positive or affectionate.

He testified that the child appeared to be "rather ambivalent and seemingly anxious about this contact with the birth mother." He concluded that there was little likelihood of significant psychological harm to the child if her relationship with her mother were terminated. By contrast he observed a much more positive interaction between the child and her foster parent. He concluded that there was "some bond" with the foster parent but that "it was somewhat equivocal" whether interruption of that relationship would result in significant harm to the child. He did note the "dramatic improvement in terms of [the child's] mental status and overall functioning" since she had been with the foster parent, as well as the child's strong need for permanency.

Defendant presented testimony from J.P., who described the difficulty she had in communicating with DYFS and expressed her interest in caring for the child at her home in California, with the assistance of other relatives. She contended that she had sent DYFS the medical information they requested, but she admitted on cross-examination that she had not provided the information when it was requested in 2003. She also admitted that another California relative, Denise McGowan, had not responded to inquiries from DYFS. J.P. testified that she had arthritis, a pacemaker, and had quadruple heart bypass surgery. Based on her testimony and the judge's observation of her physical condition, Judge Strelecki concluded that the grandmother was physically unable to care for the child.

B.B. testified on her own behalf. She began by admitting that she had not taken her psychiatric medication. ("Well, to be very honest with you, Judge Strelecki, I never took the medication.") Our review of the transcript also reveals that her testimony was rambling, disjointed, and non-responsive to the questions she was asked. She did state that she would prefer to have the child placed with her current foster parent than with J.P. ("I'm happy where [M.C.S.] is, but I still don't want to lose rights to her.")

There was no dispute in the record that M.C.S. has thrived in foster care, and her foster mother wants to adopt her.

In a cogent and thorough forty page oral opinion issued October 11, 2005, Judge Strelecki concluded that B.B. was incapable of parenting her daughter and that it was in the child's best interests to terminate parental rights.

II

On this appeal, B.B. raises the following contentions:

POINT I: THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C- 15 AND 30:4C-15.1.

POINT II: THE TERMINATION OF ALL PARENTAL RIGHTS UNDER THE CIRCUMSTANCES OF THIS CASE, WITHOUT A FAIR AND ADEQUATE CONSIDERATION OF LESS SEVERE RELIEF, WAS PUNITIVE AND UNREASONABLE.

POINT III: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

Having thoroughly reviewed the record, we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

The record leaves us with no doubt that DYFS proved by clear and convincing evidence that termination of parental rights is in the child's best interests. In re Guardianship of K.H.O., 161 N.J. 337 (1999). We defer to the judge's factual conclusions based on her observation of the witnesses, including her determination that J.P. would not be an appropriate guardian. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Judge Strelecki's determination is supported by substantial credible evidence, and we affirm substantially for the reasons stated in her opinion. Ibid.; R. 2:11-3(e)(1)(A).

Affirmed.

 

(continued)

(continued)

8

A-1762-05T4

RECORD IMPOUNDED

June 22, 2006