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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1836-05T41836-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.M.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF B.L.M.,

A Minor.

_______________________________________

 

Submitted May 16, 2006 - Decided June 8, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-17-7-05.

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

Zulima V. Farber, Attorney General, 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 (James A. Louis, Deputy Public Defender).

PER CURIAM

Following a guardianship trial in September 2005, the Family Part granted the Division of Youth and Family Services' (DYFS') application to terminate the parental rights of appellant C.M., and of her estranged husband L.M. (who defaulted at trial), to B.L.M., a thirteen-year-old boy they had adopted about six months after his birth in 1993.

C.M. raises the following issues on appeal:

POINT I

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD BELOW SUPPORTING THE TRIAL COURT'S CONCLUSION THAT DYFS HAD PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT THE BEST INTERESTS OF THE MINOR CHILD NECESSITATED THE TERMINATION OF C.M.'S PARENTAL RIGHTS.

A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND WOULD CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH C.M.

B. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT C.M. WAS UNWILLING OR UNABLE TO ELIMINATE THE ALLEGED HARM TO THE CHILD.

C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT DYFS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO C.M.

D. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE TERMINATION OF C.M.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S REQUEST TO ADJOURN THE PROCEEDINGS SO THAT C.M., RECENTLY RELEASED FROM A MENTAL HEALTH FACILITY, COULD ASSIST IN DEFENDING AGAINST DYFS' ALLEGATIONS.

POINT III

THE TRIAL COURT ERRED IN NOT SUFFICIENTLY CONSIDERING KINSHIP LEGAL GUARDIANSHIP.

We affirm.

I.

B.L.M., who was born on January 6, 1993, suffers from fetal alcohol syndrome and Attention Deficit Hyperactivity Disorder (ADHD), for which he receives medication. He resided with his adoptive mother, C.M., from June 1993 through March 2003. C.M. has four prior children, all of whom are emancipated.

The Division began its involvement with C.M., who has a long history of mental disorders, and B.L.M. in October 2002 after receiving a report from the family physician expressing concerns about C.M.'s ability to care for her son and to manage his behavior. Thereafter, the record indicates, among other things, that C.M. had inflicted corporal punishment on B.L.M. numerous times, and had kept him home from school an excessive number of days. The record also indicates that C.M. had withheld B.L.M.'s medication for ADHD, had fabricated stories that B.L.M. was hurting her, and had called the school and the police repeatedly with exaggerated claims about B.L.M.

On March 13, 2003, B.L.M. was removed from C.M.'s home, with her consent. Since that time, for the two and a half years preceding the guardianship trial, B.L.M. has resided with a paternal aunt and uncle. The aunt and uncle both wish to adopt B.L.M. They do not desire a kinship guardianship. The aunt and uncle have permitted B.L.M. to see C.M. intermittently since he left her residence.

As the proofs at trial confirmed, C.M. suffers from long-standing psychiatric illnesses that include depression, a significant anxiety disorder and other conditions. She was released from Ancora State Hospital, where she had been admitted for mental health treatment, shortly before the trial commenced. Her mental illnesses have caused her to engage in repeated aberrant behaviors with respect to B.L.M., including an incident in which she gave B.L.M. a bag filled with dog feces at Halloween, in what she perceived to be a mere "practical joke."

C.M. claims to suffer from multiple sclerosis (MS) and at times uses a wheelchair. However, no such diagnosis of MS was presented at trial.

The trial witnesses consisted of the DYFS case worker who had investigated the circumstances leading to B.L.M.'s removal from C.M.'s custody, B.L.M.'s paternal aunt who has cared for him since March 2003, and two mental health professionals, Dr. Chester Sigafoos, the State's expert psychologist, and Dr. Jesse Whitehead, the defense's expert psychologist. C.M. did not testify nor offer any fact witnesses.

The DYFS case worker recounted a multitude of problems with B.L.M.'s care while he was in the custody of C.M. She described the Division's repeated efforts to arrange services for C.M., including counseling, parenting classes, medication monitoring, and supervised visitation. The case worker described how C.M. sometimes would become, among other things, "inappropriate" and "very angry" in her dealings with DYFS staff. The worker also described an incident in which an acquaintance of C.M., accompanied by C.M., accosted her in an extremely aggressive fashion after a court proceeding.

The paternal aunt testified about how she came to be custodian of her nephew B.L.M. The aunt and her husband were B.L.M.'s godparents, and spent time with him regularly before B.L.M. was placed with them in March 2003. She explained how she initially transported B.L.M. to the same school that he had been attending while living with his mother, and how she thereafter enrolled him in a different school in the fall of 2003, where he was placed in a "mainstream" program with additional resources. The aunt reported that B.L.M.'s academic progress had dramatically improved after moving into her home, and that in sixth grade he had made the honor roll and had excellent attendance. The aunt further testified that B.L.M. has continued therapy, albeit reluctantly, and that he has stopped wetting his bed and having nightmares. She also asserted that she and her husband have been willing to have C.M. visit her son, and that, even if the court permitted them to adopt, they would voluntarily continue to let B.L.M. visit with his mother and to refer to her as "mommy."

Both mental health experts confirmed the psychological problems that beset C.M., although they reached slightly differing conclusions. Dr. Sigafoos, the State's expert, diagnosed C.M. with numerous psychopathological disorders. His report, which was introduced into evidence and substantially replicated in his trial testimony, concluded that C.M.'s disorders are difficult to treat because of her "lack of insight, lack of motivation, and lack of commitment to change." He noted that when B.L.M. told his mother that he had made the honor roll at school, she "showed no interest." He opined that reunification would present a "high" risk of harm to the child, in that C.M. "is not cognizant of the safety needs of the child" and "unstable." By contrast, in his bonding evaluation of the paternal aunt and uncle, Dr. Sigafoos found that B.L.M. was "strongly attached" to them, and would be apt to suffer "serious and enduring harm if not allowed to have a continued relationship with [them]."

The defense expert, Dr. Whitehead, agreed that C.M., although of average or high intelligence, had numerous psychiatric problems. He particularly noted C.M.'s tendencies toward depression, and that her condition had worsened from 2003 to 2005, which he in part attributed to her failure to sustain her regimen of medications. Dr. Whitehead expressed "real concerns about her being suicidal," and that her "anxiety disorder was noticeably more significant." Nevertheless, Dr. Whitehead opined that C.M. was not a danger to her son, and that, with appropriate future treatment, she had "the ability to be a positive and very supportive parent." His own bonding assessment indicated that B.L.M. and C.M. still love one another, while also acknowledging that B.L.M. had bonded positively with his aunt and uncle. Dr. Whitehead recommended that a kinship legal guardianship be considered because that would enable B.L.M. to continue to have assured contact with his mother.

After considering this testimony and the other proofs, the trial judge rendered an oral opinion, finding that DYFS had proven, by clear and convincing evidence, all four of the requisite factors for the termination of parental rights as set forth in N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-610 (1986), and as codified in N.J.S.A. 30:4C-15.1.

II.

Our scope of review of the Family Part's factual findings is limited. In reviewing the factual findings and conclusions of a trial court, we are obliged to give due regard to the trial judge's credibility determinations and the judge's "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). Additionally, "[b]ecause of the family court's special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding," and the conclusions that flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13. Applying this standard, we are satisfied that there is clear and convincing evidence in the record before us to sustain the termination of C.M.'s parental rights. We thus affirm the judgment of termination, substantially for the reasons expressed in Judge Strelecki's oral opinion of September 27, 2005.

In particular, we find ample support in the record that B.L.M.'s "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). Until B.L.M. was removed from his mother's care in March 2003, he was not attending school regularly, was deprived of his medication, and had been the object of rather bizarre and inconsistent conduct by his mother.

Further, the testimony of both mental health experts, Dr Sigafoos and Dr. Whitehead, reflected that C.M. to date has been "unwilling or unable to eliminate the harm facing the child," and cannot presently provide him with "a safe and stable home." N.J.S.A. 30:4C-15.1(a)(2). As Dr. Whitehead acknowledged, C.M.'s instability has worsened, rather than improved, since B.L.M. was removed from her household in March 2003. The trial judge also had sound reason to credit Dr. Sigafoos' testimony in finding that "the delay of permanent placement will add to the harm" to this child, particularly in light of the harm Dr. Sigafoos anticipates if B.L.M. were now separated from his aunt and uncle. Ibid.

Third, the record amply supports Judge Strelecki's finding that DYFS has made "reasonable efforts to provide services" to C.M., who at times exhibited hostility and inconsistency in her dealings with the Division. N.J.S.A. 30:4C-15.1(a)(3).

We also agree with Judge Strelecki that DYFS adequately "considered alternatives to termination of parental rights." On this point, C.M.'s counsel argues that the trial judge failed to consider kinship legal guardianship by the aunt and uncle, under N.J.S.A. 3B:12A-1 et. seq. as an alternative to termination. Judge Strelecki appropriately rejected that argument, in light of the unambiguous position of the aunt and uncle that they do not wish to serve as kinship guardians but only wish to adopt. See N.J. Div. of Youth and Fam. Services v. P.P., 180 N.J. 494, 507-11 (2004). We note that their position in this regard is not unreasonable, in light of their desire to have autonomy in continuing to raise B.L.M. without interference from C.M., who the adoptive parents nevertheless intend to allow continued visitation with her son on a purely voluntary basis.

Fourth, we are satisfied that the proofs are more than sufficient to sustain Judge Strelecki's finding that termination of C.M.'s parental rights "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The record indicates that B.L.M. has made dramatic improvements in his school work, his health and his overall well-being during the more than two years that he has been under the care of his aunt and uncle. By contrast, his mother continues to be plagued by mental illness, which creates substantial risks that the child's continued progress will be jeopardized if he were returned to his mother's care.

Finally, we perceive no abuse of discretion in Judge Strelecki's practical decision to deny a last-minute request by defense counsel to adjourn the guardianship trial based on C.M.'s recent discharge from hospitalization. Defense counsel should have anticipated the need to prepare C.M. for the proceeding, and to apprise the court of a request for postponement before the day of trial itself. On a related point raised by the defense, we see no necessity for the trial court to have appointed a guardian ad litem in this case, and are satisfied that this teenager's best interests were appropriately taken into account by Judge Strelecki through the detailed testimony of the witnesses describing B.L.M.'s progress since March 2003 and his respective interactions with his aunt, uncle, and mother.

Affirmed.

 

(continued)

(continued)

11

A-1836-05T4

RECORD IMPOUNDED

June 8, 2006