DIVISION OF YOUTH AND FAMILY SERVICES v. S.D.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0025822582-04T4

A-2790-04T4

DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.D.,

Defendant-Appellant.

DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.S.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF I.P.E.S AND M.L.D.,

Minors.

 

Submitted September 27, 2005 - Decided February 15, 2006

Before Judges Axelrad and Francis.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-14-04 and FG-17-34-01.

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

Yvonne Smith Segars, Public Defender, attorney for appellant D.S. (Gladys Moriarty, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent D.Y.F.S. (Michael J. Haas, Assistant Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors I.P.E.S. and M.L.D. (Lisa C. Castaneda, Designated Counsel, on the brief).

PER CURIAM

In these consolidated appeals, S.D. and D.S., the biological mother and father of I.P.E.S. and M.L.D., appeal from a judgment of the Family Part terminating their parental rights to the children. They contend that the trial court's respective findings and conclusions were not supported by clear and convincing evidence that all of the four statutory criteria for termination of parental rights had been satisfied. N.J.S.A. 30:4C-15.1a. See N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

After considering the record and briefs in light of the applicable law, we are satisfied that the trial judge's findings and conclusions are firmly supported by substantial, credible evidence. Accordingly, we affirm substantially for the reasons set forth in Judge Johnson's comprehensive written decision of December 14, 2004. We make the following observations.

I

On December 11, 2003, the Division of Youth and Family Services (DYFS) filed a complaint for guardianship seeking a termination both of the rights of S.D. and of the children's father, D.S. A joint trial occurred on October 15, 19, and 22, 2004.

The record in this matter reveals that I.P.E.S. was born October 24, 2001 and M.L.D. was born June 12, 2003. S.D. has eight other children, all of whom have been the subject of DYFS referrals, however, none of the children are in her custody.

By way of history, in October 1988, DYFS became involved with the family in connection with S, based on a referral from the maternal grandmother alleging that S.D. had left S with her for three days without making provisions for food or diapers. DYFS made several attempts to assist S.D. in locating housing and provided her with housing at a motor lodge. On January 20, 1989, another referral was received indicating that S was not being fed properly because S.D. was giving her money to her boyfriend.

On August 19, 1989, S.D.'s second child, D, was born positive for cocaine. Although DYFS required S.D. to attend substance abuse treatment, she was discharged for failure to attend an intake evaluation.

On April 22, 1991, DYFS received another referral regarding the birth of S.D.'s third child, M, who weighed only five pounds and was positive for cocaine. S.D. had no prenatal care and admitted to cocaine and marijuana abuse throughout her pregnancy. M, born premature and hypotonic, suffered intrauterine growth retardation and tremors. M was placed with the maternal grandmother, who had custody of S.D.'s other two children. S.D. agreed at the time to seek drug rehabilitation.

On September 8, 1992, DYFS received a referral involving S.D.'s fourth child R. At birth, R tested positive for cocaine and was small for her gestational age. S.D. admitted that she had consumed sixteen beers "every weekend throughout her pregnancy, did coke two to three times a week, smoked one pack of cigarettes a day, and did not have prenatal care." S.D. indicated that she was living with D.S. at the time. D.S. denied paternity and declined to become involved. R was also placed with the maternal grandmother.

On December 9, 1993, the hospital notified DYFS that S.D. had given birth to her fifth child De and that S.D. tested positive for opiates, which were prescribed for pain. S.D. stated that she planned to live with D.S. and take care of the baby. The maternal grandmother filed for and obtained custody of De as well.

On November 12, 1995, S.D. gave birth to her sixth child J while she was incarcerated in state prison. On January 3, 1996, the next referral occurred regarding J based on S.D. having removed the child from her uncle where the child had been placed while S.D. was incarcerated. The allegation was that she had removed the child without adequate clothing. Based on S.D. not having appropriate housing, the child was returned to her aunt and uncle, where he has remained.

On September 8, 1997, there was another referral regarding S.D.'s unborn child. Having gone to the hospital resulting from a kidney infection, S.D. tested positive for cocaine, had no prenatal care, and refused an ultrasound. After reporting to the DYFS office, she was referred for prenatal care, which she attended and, ultimately, submitted to the ultrasound. This seventh child, Dr was born February 17, 1998 and placed with the maternal grandmother.

On October 18, 2000, a referral was received based on S.D. having given birth to her eighth child Je, who tested positive for cocaine and for whom S.D. had received no prenatal care. Je was born with tremors, a heart murmur, seizures, required an apnea monitor, phenobarbitol, and early intervention. The maternal grandmother was unwilling to take this child, and he was placed in foster care.

The referral involving I.P.E.S. was received on July 20, 2001 indicating that S.D. was six or seven months pregnant and was using cocaine. The referent was D.S. On October 19, 2001, there was another referral regarding I.P.E.S. The hospital reported that S.D. had awakened from "sleeping off alcohol" and tested positive for cocaine. Although she required hospitalization, she had signed herself out against medical advice. I.P.E.S was born on October 24, 2001. I.P.E.S. suffers from intrauterine growth retardation, tremors, seizures and possible cerebral palsy. He takes seizure medication and has to wear a helmet due to the flattening of his head. He also wears a heart monitor for his high heart rate. At that time, S.D. executed an informed consent for placement of I.P.E.S. into foster care. D.S., the named father, was present when S.D. executed the informed consent and was queried as to whether he wanted to participate in the placement process. He declined. I.P.E.S. was placed in foster care.

A final referral was received on June 13, 2003 at M.L.D.'s birth. The hospital indicated that the baby had been transferred to A.I. Dupont hospital, and had been diagnosed with occipital encephalocele and had a "poor prognosis" based on the presence of a "large fatty mass on the back of his head." S.D. had been aware of the tumor prior to the birth of M.L.D., and had been referred to a perinatologist, but did not follow through with the referral. It is against this factual backdrop that we consider the contentions of S.D. and D.S. regarding the termination of their parental rights to I.P.E.S. and M.L.D.

II

The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. and M.P., 308 N.J. Super. 376, 382 (App. Div. 1998), vacated, 163 N.J. 158 (2000) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)). "The State as parens patriae, may act to protect children from serious physical and emotional harm." Id. at 382. We recently recognized the principle that "[a] child cannot be held prisoner of the rights of others, even his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N. J. Div. of Youth and Family Servs. v. C.S. and J.G., 367 N.J. Super. 76, 111 (App. Div. 2004), certif. denied, 180 N.J. 456 (2004). A trial court must not focus solely upon parental rights without properly weighing and considering the rights of the child independent of said child's biological parents. Id. at 118.

The court's function when a biological parent challenges the termination of their parental rights is to decide whether a parent has the capacity to eliminate any harm the child may have already suffered, and whether the parent can care for the child without inflicting any further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The court must balance fundamental parental rights and the State's parens patriae responsibility in determining what is in the best interests of the child, the applicable standard. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Parental rights may be terminated when:

(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-15.1a. See also A.W., supra, 103 N.J. at 604-11.]

These tests are overlapping. They are designed to identify and assess what may be necessary to promote and protect the best interests of the child. 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 address the specific circumstances" of the individual case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). Our examination of the record discloses that all four prongs of the test have been met by clear and convincing evidence.

"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 the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth and Family Servs. v. D.M.B, 375 N.J. Super. 141, 144 (App. Div. 2005), certif. denied, 183 N.J. 586 (2005) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). We are not to disturb the judge's findings of fact unless they are "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend he interests of justice.'" Cesare, supra, at 412 (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that the best interests of the children require termination of S.D.'s and D.S.'s parental rights.

Regarding the first factor, whether the children's safety, health, and development has been or will continue to be endangered by the parental relationship, Judge Johnson found that both S.D. and D.S. had a long, "sad and tragic" history of proving that they were unable to properly care for their children.

Judge Johnson concluded in his written opinion:

It is clear that S.D. is [sic] has been a danger to all of her children's safety, health and development, but she has been especially harmful to the two most recently born children, the subject matter of this guardianship action. Based on her 15 year failure to correct the problems that have led to all of her children being removed from her custody, it is clear that I.S. and M.L.D. will continue to be endangered by their parental relationship with S.D. She has significantly harmed these two children and will continue to harm the children for the foreseeable future.

Regarding the first factor and D.S., Judge Johnson found:

D.S. continues to be engaged in an ongoing unhealthful and detrimental relationship with S.D. S.D. suffers from a serious drug addiction which D.S., with his substantial income and acceptance of her continued drug use, D.S. financially supports and enables. This court finds from D.S.' testimony that he provided the funding for some of the drugs that S.D. ingested during her pregnancies with both children.

. . . As the experts state, D.S. is not prepared to raise these children in anyway and so their development has also been harmed by that.

. . . .

These children have been harmed by their father's persistent failure to perform any parenting functions. . . He is unable to perform the day-to-day functions required to be an adequate parent to these high needs children . . . [He] has allowed and both directly and indirectly (by his financial support of their mother's addiction) caused the children to be neglected and to languish for all of their lives in foster care while he spends his relatively ample resources on maintaining an ongoing and enabling relationship with their drug addicted mother instead of concentrating on a return of and raising of his children.

As to the second prong, whether the parent is willing 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 in permanent placement will add to the harm, the judge noted that S.D. had fifteen years of services to assist her in eliminating the harm facing the children. The court recognized that without a job and income she is unable to provide a safe and stable home for the children. Judge Johnson meticulously chronicled the plethora of services offered to S.D., concluding that S.D. had significantly harmed M.L.D. and I.P.E.S., and would continue to do so for the foreseeable future. The court made similar findings with respect to the application of the second prong to D.S. While the trial court concluded that D.S. had the financial ability to provide a safe and stable home for the children, his ongoing relationship with S.D. would jeopardize the children.

As to the third prong, whether reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home, the judge detailed all of the programs and services that were offered both to S.D. and D.S., in which they either failed to participate or complete. The judge found that the maternal grandmother had taken six of S.D.'s children and no other family members existed with whom to place these high-needs, fragile children. Furthermore, the court found that there were no family members of D.S. available. The court determined that the relationship between S.D. and D.S. was "unhealthy" based on S.D.'s compulsive drug use and the inability of D.S. to terminate his relationship with S.D.

As to the final prong, termination of parental rights will not do more harm than good, the judge concluded that there was no testimony that the children would, in any way, be harmed by termination of their "limited relationship with their mother and father." The children, especially I.P.E.S., the court correctly determined, are securely bonded with their foster parents and would be harmed if separated from them. The evidence is overwhelming as to the detrimental impact of S.D. on the children. D.S., the court concluded based on the credible evidence, would not be able to raise these children at any time in the foreseeable future based on his "multitude of personal and psychological issues." D.S. is "distant from the children and does not understand their idiosyncrasies."

The expert testimony clearly supported the court's findings. On June 27, 2002, S.D., while incarcerated, was evaluated by Dr. Barry Kardos who concluded that S.D. was operating within the borderline range, that a dependence on alcohol and illicit drugs appeared throughout her personality protocols, and that it would be unwise to place two medically fragile children in her care. After evaluating D.S. on October 8, 2002, he concluded that D.S. does not possess the personality and emotional ability to raise the children, "especially children with the significant problems suffered by I.P.E.S. and M.L.D." Dr. Roger Barr evaluated D.S. on February 25, 2003 and March 3, 2003. He concluded that the "expectations of D.S. are unrealistic" and "his expectations regarding the behavior of children derive from a distant, apathetic, aloof, and passive manner of interpersonal relating."

Dr. Barr concluded that "the ideal child for D.S. would almost be required to raise him or herself."

Dr. Linda Jeffrey evaluated D.S. on June 29, 2004. D.S. indicated to Dr. Jeffrey that he had been incarcerated for domestic violence. She also indicated that D.S. did not feel responsible for his children that had been placed under the care of DYFS, nor did he feel responsible for his children with S.D. who were born drug-exposed. Dr. Jeffrey concluded that D.S. was not prepared to provide safe parenting. S.D. was also evaluated on June 29, 2004 by Dr. Linda Jeffrey. S.D. was unable to provide the birthdates of her children or to answer any questions about I.P.E.S., as she had no visitation with him, and, thus, did not know the child. In summary, Dr. Jeffrey concluded that S.D. displayed a mixed personality, had not achieved drug recovery, was unemployed, did not complete a G.E.D. program and, hence, the children could not be safely placed in her custody.

Dr. Kardos conducted a bonding evaluation on October 23, 2002 to ascertain whether emotional attachments existed between I.P.E.S. and his foster mother. Dr. Kardos noted that I.P.E.S. smiled back at the foster mother, foster mother exhibited knowledge of his overall development, and interacted with the child in a developmentally appropriate manner. Dr. Kardos concluded that I.P.E.S. had a secure, affectionate bond with his foster mother and would likely experience significant loss and separation distress if he were removed from the home.

A bonding evaluation was conducted by Dr. Jeffrey on July 23, 2004 to assess the attachment of I.P.E.S. to S.D. and D.S. During the evaluation, S.D. was unable to correctly rock I.P.E.S. to sleep, reported that I.P.E.S. had no health problems, but was addicted at birth, and did not feel that the child required any special care. During the evaluation, D.S. referred to I.P.E.S. as being "bad," notably when the child became sleepy. When asked about the child's care needs, D.S. responded, "seems like a healthy child to me." Dr. Jeffrey observed that I.P.E.S. did not display any attachment behaviors toward S.D., nor did he display any spontaneous affection toward D.S. Dr. Jeffrey concluded that I.P.E.S. did not relate to either S.D. or D.S. as a parental figure.

Due to M.L.D.'s significant physical handicaps no bonding evaluations were performed.

 
We are satisfied that termination of parental rights will serve to advance the children's best interests. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330 (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial, credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution.

Affirmed.

(continued)

(continued)

16

A-2582-04T4

RECORD IMPOUNDED

February 15, 2006