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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3209-05T43209-05T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

T.C.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF K.D. AND A.R.C.,

Minors.

________________________________________________________________

 

Submitted September 12, 2006 - Decided October 4, 2006

Before Judges Lisa and Grall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-24-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Helen Godby, Assistant Deputy Public Defender and Ruth Harrigan, Designated Counsel, of counsel and on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Laura McManamy, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors K.D. and A.R.C. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, T.C., appeals from a judgment of guardianship terminating her parental rights to her daughters, K.D., who was born on August 10, 2003, and A.R.C., who was born on March 6, 2005. Defendant argues on appeal that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing the third and fourth prongs of the best interests of the child test. In particular, defendant argues that DYFS failed to satisfy the reasonable efforts standard because it unilaterally ceased all efforts to provide services to her without judicial approval and that DYFS failed to prove that termination of parental rights would not do more harm than good. Defendant also argues that the order adding A.R.C. to the guardianship action, which was already pending with respect to K.D. when A.R.C. was born, violated her due process rights. We reject these arguments and affirm.

Defendant was twenty-nine years old when she gave birth to K.D. She has never been married. G.D. is the father of K.D. and A.R.C. G.D. has six other children by three other women. He and defendant did not enjoy a stable or lasting relationship. He has an alcohol abuse problem. He has left the State and disavowed any interest in either of the children. His parental rights were also terminated in this proceeding by default, and he has not appealed. Thus, any hope of family reunification would involve only defendant and the children.

The Division received its initial referral when defendant was pregnant with K.D., as a result of her failure to comply with prenatal care requirements. Medical personnel at Southern Ocean County Hospital reported to the Division a concern that defendant lacked the understanding to parent her unborn child. A psychological consult, administered by Dr. R. DeNatale on July 16, 2003, indicated that defendant's insight and judgment were poor and that she had limited insights into caring for her own needs or anticipating the needs of her baby. DeNatale recommended that defendant be evaluated for benefits by the Department of Developmental Disabilities (DDD).

During her pregnancy and at the time of K.D.'s birth, defendant had been employed since 2000 on a full-time basis by Walmart. She was living with G.D. and members of his family. When K.D. was born, the Division urged a temporary voluntary placement because of concern about defendant's ability to parent the child. Defendant and G.D. resisted, and the child was released to their custody, with Division supervision. On October 3, 2003, Dr. Feldman, a pediatrician, notified the Division that he diagnosed K.D. with failure to thrive. K.D. had gained only one-and-one-half pounds since birth. The child was admitted to Jersey Shore University Medical Center. Testing revealed no medical cause for the lack of adequate weight gain, and upon initiating a proper feeding schedule, K.D. gained significant weight. Thus, the failure to thrive was occasioned by inadequate feeding while in defendant's care. It was further determined that K.D. suffered from hypothyroidism and exhibited other symptoms, all of which, combined with the failure to thrive, resulted in classification of K.D. as medically fragile.

Based upon these events, neglect was substantiated. Defendant and G.D. consented to a temporary placement in foster care. Placement was achieved in a "medical foster home." K.D. has remained in the same foster home ever since, and the foster parents wish to adopt her.

The Division began providing services. Defendant was referred for parenting classes and provided supervised visitation arrangements through Preferred Children's Services. The Division also referred both parents to Dr. Robert J. Puglia for psychological evaluations. Puglia conducted a psychological evaluation of defendant over several dates between October and December 2003. Puglia determined that defendant was cognitively impaired, with an IQ of 77, rendering her borderline mentally retarded and with borderline ability for intellectual functioning. In his December 30, 2003 report, he concluded that defendant possessed "limited intellectual ability and therefore may exhibit poor judgment with regard to the needs and day-to-day care of her child, [K.D.]." He advised against reunification. Puglia recommended that before reunification could be considered defendant should complete a parental skills training course, including training specifically meeting K.D.'s special needs. He also recommended supervised visitation.

Over the ensuing months, defendant did not regularly attend or complete the parenting skills program. Although she attended some supervised visits, and although for a period of several months from December 2003 to February 2004 the foster mother canceled a number of supervised visits, defendant ultimately failed to attend many of the supervised visits that were available to her. It is of particular note that in the months leading up to A.R.C.'s birth, defendant repeatedly canceled visits with K.D., and defendant later told a Division caseworker that she was attempting to hide her pregnancy from the Division. Eventually, Preferred Children's Services terminated the visitation program due to defendant's pattern of non-attendance.

When A.R.C. was born on March 6, 2005, the hospital notified the Division. Because defendant had avoided contact with the Division during her pregnancy, this was the Division's first notice of another child. On March 10, 2005, the Division filed a verified complaint seeking custody of A.R.C. By this time, defendant was no longer living with G.D. and his family. She had no permanent residence. And, based upon her history of non-compliance with services offered by the Division with respect to K.D., the Division believed A.R.C.'s well-being would be endangered if released in defendant's custody. A.R.C. was temporarily placed in a foster home, and the Division amended the termination action involving K.D. to include A.R.C. During this time, defendant was represented by counsel and was on notice of the request to amend. She did not object. At no time during the trial court proceedings did defendant dispute the propriety of adding A.R.C. to the termination proceeding almost immediately after A.R.C.'s birth.

A.R.C. has remained in the custody of the same foster family since her release from the hospital. Defendant has had virtually no contact with her, although she participated in a few sporadic supervised visits with A.R.C. before the visitation program was terminated due to defendant's non-attendance. A.R.C.'s foster parents are the only parents she has ever known. According to the DYFS caseworker, A.R.C. is doing well with the foster family, and the foster parents wish to adopt her.

At the request of the Division, Dr. Margaret S. Beekman conducted a bonding evaluation between K.D. and her foster mother. Beekman concluded that K.D. was strongly and securely bonded to her foster mother, who she sees as her psychological parent. Beekman concluded that "[f]rom a bonding perspective, permanent placement is recommended for [K.D.] with her foster mother as the least harmful alternative." Beekman's efforts to conduct a bonding evaluation between K.D. and defendant were frustrated because defendant failed to attend several scheduled sessions for that purpose.

Beekman described that, because of K.D.'s history of failure to thrive, developmental delays and removal from primary caretakers, she is at increased risk for psychological, educational and social deficits. She has received the needed stable and nurturing environment in her foster home to ameliorate these potential problems. K.D. has been consistently provided with the special services she requires, including physical and speech therapy.

At the Division's request, Dr. Andrea Lynn Sollitto, performed a bonding evaluation between K.D. and defendant on July 11, 2005. Sollitto noted that "[K.D.] seemed to be bonded to her foster mother as noted at separation in the waiting room." Sollitto concluded that "[t]he background information and this evaluator's observations indicate [defendant] is intellectually limited, has poor judgment, and could not safely care for a child. . . . To return her to her mother's care would subject her to further risk of physical neglect and psychological harm." Sollito attempted to conduct a psychological evaluation of defendant on the same day, however, it was terminated. Sollitto contends it was terminated because defendant was unable to read and understand the directions and the evaluation would require a verbal one-on-one process, which would take much longer and as a result needed to be rescheduled. Defendant disputed the reason, stating that it was terminated because of transportation and scheduling issues. Regardless of the reason for termination on that date, defendant failed to attend the several rescheduled appointments, as a result of which the evaluation was never conducted.

Trial was held on December 22, 2005. The Division presented the testimony of a caseworker, Beekman and Sollitto. Defendant testified in her own behalf. Judge Strelecki also received substantial documentary evidence, including DYFS records and reports issued by Puglia, Beekman and Sollitto.

At the time of trial, defendant was living with her uncle. She was unemployed. Her asserted plan for reunification was that she had a boyfriend who was going to help her get her children back. She was not living with the boyfriend. She acknowledged that this was the same boyfriend she had mentioned to Sollitto several months earlier during the bonding evaluation. In her report and trial testimony, Sollitto explained that when she interviewed defendant in July 2005, defendant told her she had just met this boyfriend one week earlier and that he was going to help her get her daughters back. Defendant told Sollitto that everything with her new boyfriend was "good" because "he took (her) out to dinner and everything."

At the conclusion of the trial, Judge Strelecki placed her findings on the record. She concluded that the Division proved by clear and convincing evidence all four prongs of the best interests test and entered an order terminating defendant's parental rights to both children.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interest standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

T.C. does not challenge the judge's findings regarding the first and second prongs. She challenges the findings on the third and fourth prongs. The crux of her argument on the third prong is that "DYFS never formulated a concrete plan for reunification" and "the services given were not tailored to defendant's needs."

We are satisfied from our review of the record that the Division provided adequate services as recommended by medical and mental health professionals. These included parenting classes and supervised visitation, but defendant failed to comply. On appeal, defendant focuses on the Division's failure to refer her to DDD, as had been recommended early on in the proceedings. She argues that because of her limited cognitive abilities these services were essential to assist her in developing a reunification plan. Judge Strelecki addressed the issue, noting that although defendant was recommended for vocational training and rehabilitative programs at DDD, "the problem with that was she didn't comply with the initial services that were offered. So, it never got to the point where the vocational training came in as an asset for her in order to be able to care for these children." The judge was also satisfied that the Division provided ample evidence that it made reasonable efforts in seeking alternatives to termination. Several individuals were evaluated for possible placement, but all were found to be unacceptable.

The third prong requires that the Division make "reasonable efforts" to provide necessary services. Whether the efforts are deemed reasonable does not depend upon their success, but their adequacy in light of all of the attendant circumstances. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). We are satisfied from our review of the record that the services provided here were reasonable under all of the circumstances. Referral to DDD would have clearly been appropriate in this case. It was recommended by a psychologist engaged by the Division, and it was ordered in an interim order in the proceedings. The issue we must decide, narrowly focused, is whether the Division's failure to pursue this service for defendant resulted in a deficiency in the clear and convincing proof required under the third prong.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Applying this deferential standard, we find no error in the trial judge's finding that the Division's failure to pursue a DDD referral was justified in light of defendant's persistent pattern on non-compliance with those services that were offered. The record supports the judge's finding that the Division made reasonable efforts to provide appropriate services in the context of this case.

Defendant's argument with respect to the fourth prong lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The unrefuted psychological evidence clearly established that K.D. is psychologically bonded to her foster parents and has no such bond with defendant. A.R.C. has never lived with defendant. She has lived with her foster family since birth and has had virtually no contact with defendant. Her foster parents are the only parents she has ever known. The unrefuted evidence in the record is that she is doing well in their care and they wish to adopt.

The evidence of defendant's cognitive deficits, as well as her lack of stable living arrangements, lack of employment and lack of any prospects for a realistic reunification plan, make it clear that she is unable to parent either of these children. There is no basis upon which to believe that this will change in the reasonably foreseeable future. The children are entitled to permanency without undue delay. This can be achieved by termination of parental rights, followed by adoption. Termination will not do more harm than good.

Finally, we address defendant's due process argument. She argues that the addition of A.R.C. to the guardianship action, immediately after A.R.C.'s birth deprived defendant of due process because it "was equivalent to a finding of default against defendant as to her parental rights of A.R.C. and stripped her of all procedural safeguards. Additionally, the ruling deprived her of any opportunity to receive services for reunification with this child."

Initially, we note that defendant never raised this issue in the trial court. As we have previously mentioned, while represented by counsel, defendant made no objection to the motion to amend the pending complaint to include A.R.C., and at no time through the conclusion of the trial court proceedings did she assert a deprivation of any rights by virtue of that amendment. Thus, the issue is not properly before us. Generally, an appellate court will decline to consider an issue not presented to the trial court unless it involves jurisdiction or is a matter of great public interest. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Although the issue is not properly before us, we note that, substantively, defendant's argument lacks merit. By the time A.R.C. was born, defendant had experienced ongoing supervision by DYFS for more than one-and-one-half years, during which she was non-compliant. Indeed, the record supports a conclusion that she attempted to hide her pregnancy with A.R.C. from the Division. Based upon the nature of the harm to her first child, it was reasonable for the Division to be concerned that the same harm might befall the second child as a result of defendant's unaddressed deficiencies. Indeed, the situation was probably worse than when K.D. was born because the father and his family were no longer available to potentially provide assistance to defendant. At the time of A.R.C.'s birth, the Division was still endeavoring to provide services to defendant which would have been beneficial with respect to both of her children. Thus, the addition of A.R.C. to the guardianship complaint did not in any way deprive defendant of the availability of services. Nor did it preclude her from contesting termination.

We find unpersuasive defendant's reliance on N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525 (App. Div. 2006). The circumstances here are quite different. There was no per se disqualification from parenthood imposed as a result of an earlier termination. Indeed, at the time the complaint was amended, there was no previous termination. And, as stated, the Division continued in its efforts to provide services. There was also no rush to judgment. The history of defendant's non-compliance with services and her failure to adequately address her inability to parent were applicable to both children. That history was well established by the time of trial. Also the mother in S.A. completed anger management, life skills and parenting classes, was attending Alcoholics and Narcotics Anonymous, demonstrated a realistic potential for rehabilitation and elimination of the problems which inhibited her parenting ability and had a realistic prospect for reunification. This is unlike the defendant in this case, who was persistently non-compliant with services, had no prospects to ameliorate the problems inhibiting her parenting ability and had no realistic plan or prospect for reunification. Furthermore, unlike S.A., the trial here consisted of substantial evidence supporting the termination of both children.

 
Affirmed.

(continued)

(continued)

17

A-3209-05T4

RECORD IMPOUNDED

October 4, 2006