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

 

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1832-05T41832-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.M.E.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF F.E.,

A Minor.

_______________________________________

 

Submitted May 9, 2006 - Decided May 24, 2006

Before Judges Axelrad and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-109-04.

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

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of Counsel; Scott J. Kieserman, Deputy Attorney General, on the brief).

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

PER CURIAM

Following a four-day guardianship trial in October 2005 the Family Part terminated the parental rights of M.M.E. and R.E. as to their biological daughter F.E. The child has resided with the same foster family since four days after her birth in March 2004. The child's mother, M.M.E., appeals, contending that the trial proofs were insufficient to satisfy the statutory criteria for the termination. We affirm.

F.E. was classified at birth as medically fragile. She weighed four-and-a-half pounds and had signs of fetal alcohol syndrome, most likely related to her mother M.M.E.'s substance abuse. She has a malformation of her skull, which requires her to wear a protective cranial helmet. She has had to use an apnea monitor for her breathing. F.E. also has developmental delays, necessitating speech and motor skills therapy. She has sucking problems and difficulty gaining weight. Her foster parents received special training to attend to her needs and have been approved as special home services providers.

F.E. was removed from her mother's care shortly after birth because of M.M.E.'s long history of mental illness (specifically, bipolar disease), substance abuse (mainly cocaine), past child neglect, and domestic violence encounters with her then-husband R.E.

DYFS has been involved with M.M.E. since 1999, having to remove her older children from her care on several occasions. One older child, a son born March 1990, resides with M.M.E.'s brother, who has custody pursuant to a kinship legal guardianship. M.M.E.'s second child, a boy born in April 1992, resides with his biological father. A third child, who was fathered by R.E., died of medical complications in October 2002 at five months of age. Although investigators found marijuana in the marital home, no abuse or neglect of the deceased child was substantiated.

M.M.E. attributes much of her past inability to serve as a responsible parent to the atmosphere of domestic violence in her household with R.E. which led to M.M.E. and R.E. each being arrested on separate occasions on criminal domestic violence complaints. A Temporary Restraining Order against M.M.E. resulting from a domestic incident with R.E. in late January 2004 was subsequently dismissed in December 2004. The trial judge recognized M.M.E.'s efforts to eliminate such violence from her life, noting that M.M.E. obtained a Final Restraining Order (FRO) against R.E. in December 2004 and her divorce complaint was pending at the time of this guardianship trial.

However, the trial court also appropriately recognized that M.M.E.'s serious psychological disorder and persistent relapses into substance abuse have rendered her unable to provide a safe and responsible home for F.E. Although M.M.E. has received treatment for these conditions, she has been nevertheless unable to attain the ability on a sustained basis to perform the duties of a responsible parent. A psychological evaluation of M.M.E. performed in August 2004 by Robert F. Puglia, Ph.D., a psychologist, noted that although M.M.E. professed a willingness to improve her capacity to function as a parent, she had not at that time stabilized sufficiently in terms of her emotional disabilities and substance abuse behaviors. The psychologist recommended that M.M.E. participate in ongoing substance abuse and psychiatric counseling and treatment for a period of six to twelve months before any efforts to reunify her with F.E. were attempted.

Subsequently, M.M.E. did pursue substance abuse treatment and other counseling, but unfortunately she continued to relapse in her use of drugs and remained psychologically unstable. A psychiatric evaluation conducted by Dr. Alexander Iofin in December 2004 opined that because of her past history of relapses and non-compliance with medications and treatment modalities, M.M.E. continued to have "a statistically high probability of showing the same pattern of behavior in the future." This risk manifested in March 2005, when M.M.E. tested positive for cocaine. M.M.E. again tested positive for marijuana in July 2005, only a month before the guardianship trial began.

A third evaluation of M.M.E. was performed by Andrea Lynn Sollitto, M.D. in July 2005, in conjunction with bonding evaluations of F.E. with M.M.E. and with her foster parents. Dr. Sollitto testified at trial as the State's expert. Among other things, Dr. Sollitto offered the following pertinent findings:

[M.M.E.] exhibits poor judgment. She has a poor prognosis for staying clean. I agreed with Dr. Brook [a prior mental health evaluator] and Dr. Iofin's reports that she's not capable of safely parenting a child because of the statistical probability of her relapse is very high. It appeared to me that she did not benefit from services and her attendance at therapy and parenting classes does not guarantee that she's going to be able to effectively and safely execute her parenting responsibilities. She tends to be very erratic and impulsive, according to her test responses. And her personality profile can best be described as one in which she lacks insight, shows poor judgment, puts her own needs and pleasures first, is rather hedonistic in that sense, and is indifferent to the welfare of others.

Dr. Sollitto also warned about M.M.E.'s disinclination to seek appropriate assistance:

Furthermore, [M.M.E.] cannot be depended on to report problems should they exist[s] outside of counselor's watch and she would not be likely to seek or benefit from help were it to be given.

By contrast, Dr. Sollitto observed that F.E. had bonded with her foster parents, and that "they were very much a family, a psychological family unit." Dr. Sollitto also opined that if F.E. were removed from her foster household, "there would be some psychological trauma in separation," because "these are the only people [F.E.'s] known." As an illustration, Dr. Sollitto noted that F.E. exhibited particular closeness with her foster father and her foster siblings during the evaluation session. On the other hand, Dr. Sollitto perceived that there was "no real sense of recognition" by F.E. that M.M.E. was her mother, and it was like she was "with someone she barely knew, a stranger."

At the time of trial M.M.E. was unemployed and had recently moved in with a male companion. She conceded that, as of the time of trial, that she was not yet in a position to accept custody of her daughter.

The trial court found no suitable relatives or third parties to assist M.M.E. as a caretaker. A cousin who stepped forward at the last minute was ruled out by DYFS because of domestic violence in her household. A neighbor identified by M.M.E. was also ruled out because of a prior arrest. Neither of the men caring for M.M.E.'s two sons volunteered to raise F.E.

The defense case at trial largely consisted of the testimony of M.M.E. and her social worker, Dennis Sharkey. M.M.E. insisted that she would gain the ability to raise her daughter, although she acknowledged that she tested positive for marijuana even after her in-patient treatment in early 2005. The social worker, who had treated M.M.E. for anxiety and depression related to her marriage and death of her third child, stated that he felt M.M.E.'s progress with her treatment was positive, although he conceded on cross-examination that M.M.E. had not kept him abreast of the extent of her recent illicit drug use.

Based on these proofs and other evidence in the record, Judge Strelecki concluded that all four criteria for termination codified at N.J.S.A. 30:4C-15.1a; see also N.J. Div. of Youth & Fam. Services v. A.W., 103 N.J. 591, 604-11 (1986); were amply satisfied here. We sustain those conclusions, substantially for the reasons recited in Judge Strelecki's thoughtful oral opinion and mindful of our deferential standard of review of facts determined by the Family Part. See Cesare v. Cesare, 151 N.J. 394, 413 (1998). We add only a few additional comments.

We recognize that the rights of M.M.E. as a biological parent are of constitutional dimension. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). We are also mindful, on the other hand, of the court's equally important responsibility to safeguard the welfare of children and, where feasible, to achieve permanency for children as soon as possible when their biological parents continue to be unable to raise them responsibly. In re Guardianship of J.P., 180 N.J. 494, 505 (2004) (citing In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). With these difficult and competitive concerns in mind, we are convinced that Judge Strelecki's determination to terminate M.M.E.'s parental rights was adequately supported by substantial credible evidence and consistent with the statutory criteria.

Each prong of the statute was demonstrated by the trial record. M.M.E., due to her bipolar disease and recurring substance abuse, has endangered F.E.'s health and development and, for that matter, that of her two older children. N.J.S.A. 30:4C-15.1a(1). Based on the successive evaluations of the mental health professionals, M.M.E. remains unable to eliminate that harm and to provide a safe and stable home for her daughter. N.J.S.A. 30:4C-15.1a(2). Although appellant's counsel denigrates the opinions of Dr. Sollitto as unworthy of credence, we defer to the trial judge's assessment of that expert's opinions and the numerous clinical grounds she offered to support them. The trial court also had an ample basis for determining that DYFS has made diligent efforts to provide counseling, visitation opportunities and other services. The record also shows that the trial court considered, and appropriately rejected, alternative caretakers. N.J.S.A. 30:4C-15.1a(3). Lastly, we are satisfied that the trial judge carefully weighed the benefits and harms of termination, and discerned ample proof that such termination will not do more harm than good, particularly given the strong bonds F.E. has forged with her foster family, her numerous special needs, and the continued risks of harm to her posed by her mother's psychological instability and drug use. N.J.S.A. 30:4C-15.1a(4).

We do express one reservation about the chronology before us, a point that was emphasized by M.M.E.'s counsel before the trial judge and on this appeal. The record, including a corroborating "home movie" videotape, shows that DYFS permitted the foster mother and father on numerous occasions to transport F.E. to her visits with M.M.E., and often remained in the room or in the immediate vicinity. We also note the record indicates that the actual status of the foster mother and father as foster parents was not immediately disclosed to M.M.E., and that M.M.E. may have reasonably believed that the foster mother was either a nurse or a neutral third party. We deem such less-than-forthright conduct and physical presence of the foster parents during the mother's visitation time inappropriate. DYFS advises that the foster parents were designated to transport F.E. to her visits with her biological mother because of the requisite special training associated with F.E.'s cranial helmet and apnea monitor, which made transportation of F.E. by the usual personnel infeasible. That staffing problem does not justify placing the foster parents in a position to interfere with the biological parent's own time with her child. Although we are fully satisfied that these ill-conceived visitation arrangements do not invalidate the strong statutory basis for termination patent from this record, we caution the agency not to repeat such indiscretions in the future.

 
Affirmed.

The judgment against R.E., who has had no relationship with his daughter since her birth, was entered by default, and R.E. has not appealed that determination.

(continued)

(continued)

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A-1832-05T4

May 24, 2006