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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2301-05T42301-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

T.M.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF M.H-M., Ma.H-M., and D.J., JR.,

Minors.

 
_______________________________________________________

Submitted June 6, 2006 - Decided June 23, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex

County, FG-07-212-05.

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 (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Lisa J. Rusciano,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minors M.H-M., Ma.H-M.,

and D.J., Jr. (Phyllis G. Warren, Assistant

Deputy Public Defender, on the brief).

PER CURIAM

Defendant T.M. appeals from an order of guardianship terminating her parental rights to her three children: M.H-M. (fictitiously Michael), born July 14, 1999; Ma.H-M. (fictitiously Mandy), born December 20, 2000; and D.J., Jr. (fictitiously Dennis), born June 12, 2003. Following a trial on October 24, 27, November 1 and November 3, 2005, the trial court rendered an oral decision on November 17, 2005. Defendant contends that the trial court erred when it concluded that the Division of Youth and Family Services (DYFS or Division) had proven by clear and convincing evidence that termination of her parental rights was in the best interest of her children.

On appeal, defendant raises the following issues:

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 CHILDREN NECESSITATED THE TERMINATION OF T.M.'S PARENTAL RIGHTS

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

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

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

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

After reviewing the record and applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by substantial credible evidence, and its conclusions predicated on those findings are legally sound. We affirm substantially for the reasons stated by Judge Cohen in his comprehensive fifty-two-page oral decision on November 17, 2005.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(1) The child's safety, health or development has 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 resource family 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 requirements are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. The considerations involved in determining parental fitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

The trial court heard testimony from two psychologists. Dr. Andrew P. Brown, III, testified as an expert witness for DYFS, and Dr. Albert R. Griffith testified as an expert for T.M. The trial court noted that the findings and conclusions of the two expert witnesses were remarkably similar.

Dr. Brown evaluated defendant on two separate occasions. In his initial evaluation on May 25, 2004, Dr. Brown stated:

[T.M.] impresses as an immature parent with "Borderline" intellectual functioning who appears to manifest a considerable potential to endanger the welfare of her children. [T.M.] lacks insight into her behavior and she seems to have little concept of her role as a responsible [and] obligatory parent. It is possible that poor cognitive development compromises her capacity to gain or establish insight and this feasibility should be further examined via neuropsychological assessment.

1) There is a crucial need for [T.M.] to take a course in parenting skills in order to educate her with regard to what constitutes child endangerment.

2) It is advised that [T.M.] be scheduled for a drug and alcohol evaluation and that at least three random urine samples be obtained to help rule out the presence of substance abuse.

3) It is advised that [T.M.] attend brief-term individual psychotherapy to address her family history.

4) A neuropsychological evaluation may determine [T.M.'s] cognitive capacity to engage in appropriate parenting.

5) Without intervention, [T.M.'s] mal-adaptive response pattern will continue to evolve and she will persist in displaying inappropriate and poor parental judgment.

6) While placement is at the discretion of the [c]ourt, this Examiner advises that reunification not be considered until [T.M.] exhibits compliance with all recommendations contained herein.

In his second evaluation on May 13, 2005, Dr. Brown stated that "[f]amily reunification is not advised at this time as [T.M.] has yet to complete any of the [c]ourt ordered/Division directives regarding parenting services." During the trial, Dr. Brown's testimony included the following:

[DEPUTY ATTORNEY GENERAL:] But would you say you hinge reunification on [T.M.'s] willingness to comply with services?

A. Oh, absolutely. Absolutely. Yes.

Q. Assume that there is evidence in the record that [T.M.] had previously been terminated for non-compliance from one parenting skills program and that she has not attended her present parenting skills program since August of 2005 and that this program is considering terminating her as well. How would that affect your opinion, Doctor?

A. Well, it makes me consider at this point, I would advise that the Division pursue steps toward termination because . . . what's in the best of the children is stability. They can't keep hanging like this not knowing whether they're going to be with Mommy or foster parents or being in the system. I mean, this is just ongoing. And she's had a -- I think an incredible amount of time to comply to attend, to quote unquote get her act together and she's not doing it. So the focus now I think -- not to say it hasn't always been on her children, but I think there was a considerable amount of focus on [T.M.]. [T.M.], this is what you need to do in order to parent. And at this point, she is showing and displaying over and over again that it's just for whatever reason it's not happening, she's not doing it so the shift now I think -- the focus is being shifted from [T.M.] to, all right, what about the children, what's in the best interest of her children.

. . . .

Q. How does [T.M.'s] failure to visit consistently speak to her motivation to be reunified with her children?

A. It suggests that she's not serious.

Q. Doctor, considering that [T.M.] has refused to comply with services for over a year, the parenting skills, the anger management, the individual therapy, is there anything that would indicate to you that [T.M.] would be compliant with future services?

A. No.

Q. Doctor, considering that [T.M.] has been offered all of those services in the past and then was charged with and convicted of endangering the welfare of a minor, is there any likelihood that she would benefit from these services if she was to participate in them?

A. There's no indication at this point, no.

Q. Doctor, in light of [T.M.'s] continued non-compliance, what is your ultimate conclusion with regard to [T.M.'s] ability to parent?

A. Her prognosis is poor.

In reaching its decision, the trial court carefully considered all of the evidence adduced at trial including the testimony of Dr. Brown and Dr. Griffith. The court noted that Dr. Griffith basically agreed with Dr. Brown, but Dr. Griffith "felt that T.M. should be given one more chance to see if she could resume custody of her children." The court ultimately concluded, however, that T.M.'s prognosis for a successful reunification with her children was poor because of her history of noncompliance.

After setting forth extensive findings of fact, the trial court made the following determinations:

The [c]ourt is compelled to conclude that the health, safety, and welfare of [Michael] and [Mandy] and [Dennis] would continue to be endangered if they were returned to [T.M.'s] care and custody . . . . Dr. Brown, and . . . Dr. Griffith were in complete agreement on this point.

Moreover, the [c]ourt concludes from the credible expert opinions of Dr. Brown that the prognosis for [T.M.'s] parenting ability improving to the point where she could adequately parent these two children is poor. The prognosis for a successful reunification is also poor. The children particularly [Michael] and [Mandy] could not handle another failed reunification [with T.M.].

[T.M.] does not appear to be motivated to do what she needs to do to get her children back. She is not able to provide the permanency her children need; nor will she be able to provide that permanency in the foreseeable future despite all of [DYFS'] many efforts outlined above, [T.M.] remains unfit to parent these children.

As to the second prong of the standard, the [c]ourt concludes that [DYFS] has established by clear and convincing evidence that [T.M.] . . . [is] unwilling or unable to eliminate the harm to [Michael] and [Mandy] and [Dennis] or [is] unwilling or unable to provide a safe, stable home for them and that further delay will add to that harm. . . .

This [is] based on all the same findings of fact above and all the same conclusions of law set forth above in the first prong. In addition, the [c]ourt notes that [T.M.] has . . . in the last one and a half year[s] consistently and flagrantly failed to complete any of the things necessary to be reunited with her three children, even when ordered by the [c]ourt, over and over again . . . and even knowing that if she did not comply . . . and if she did not prepare and concretely plan for the children, she risked having her parental rights terminated even with all of that, [T.M.] did not complete a single one of the requirements of [DYFS], [that] Dr. Brown, and . . . Dr. Griffith said were necessary prerequisites for her to get her children back.

As to the third prong the [c]ourt concludes that [DYFS] has established by clear and convincing evidence that it has made reasonable efforts to help [T.M.], [and] correct the circumstances that led to the placement of [Michael] and [Mandy] and [Dennis] outside the home. . . .

This too is based on all of the findings and facts and conclusions of law set forth above. . . .

Moreover, the [c]ourt has . . . considered all of the alternatives to termination of parental rights including but not limited to long term foster care and kinship legal guardianship and it has concluded that none of the other options are appropriate or feasible . . . .

With regard to the fourth prong, the [c]ourt concludes that [DYFS] has established by clear and convincing evidence that termination of parental rights would not do more harm than good. Number one, again based on all of the findings of fact and conclusions of law noted above, number two, the [c]ourt concludes from the . . . opinions of Dr. Brown and Dr. Griffith that [Michael] and [Mandy] and [Dennis] are bonded with . . . [T.M.].

. . . [Michael] and [Mandy] are not bonded with their current foster parents. . . . The [c]ourt concludes that . . . [Dennis's] current foster mother has become a psychological parent and the termination of parental rights regarding [T.M.] would not result in severe and enduring harm to [Dennis].

The [c]ourt concludes that while [Michael] and [Mandy] are bonded to [T.M.], the termination of parental rights will unfortunately cause them harm. . . . [But] is necessary . . . for all of the reasons noted above and she is unfit to parent these children and will not become fit to do so within the foreseeable future.

[T.M.] cannot now or in the foreseeable future provide her children with adequate parenting with a safe, stable home, with consistency, . . . and permanency that the[y] need. The risk of another failed reunification would be devastating especially for [Mandy] and [Michael]. Given . . . the well documented history right up to the very present, [T.M.'s] obstinate refusal to comply with court ordered services, to cooperate with the many services offered by [DYFS], to meaningfully plan for the children, this [c]ourt unfortunately is compelled to conclude that any further delay in providing the permanency and stability that these three children need would not only be fruitless, but would also be harmful to the children.

. . . .

[T]he [c]ourt is compelled to conclude that there is clear and convincing evidence that the termination of parental rights here are required and accordingly, I am going to [now] order that the parental rights of the defendant . . . are terminated.

Our review of the trial court's decision is limited. Judge Cohen's oral decision sets forth detailed factual findings and a detailed application of the appropriate legal standards to the facts he found, as required by In re Guardianship of K.H.O., supra, 161 N.J. at 347. We must defer to the factual findings of the trial court unless those findings are so manifestly unsupported by, or inconsistent with, the competent relevant, and reasonable credible evidence as to offend the interests of justice. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The record fully supports Judge Cohen's conclusion by clear and convincing evidence that the best interests of the children require termination of T.M.'s parental rights.

Affirmed.

 

(continued)

(continued)

12

A-2301-05T4

RECORD IMPOUNDED

June 23, 2006