NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.V.

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3364-05T43364-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.V.,

Defendant-Appellant,

and

M.F.,

Defendant.

________________________

IN THE MATTER OF THE

GUARDIANSHIP OF:

M.F. and Q.F.

Minors.

_________________________________________________

 

Submitted September 26, 2006 - Decided November 3, 2006

Before Judges Payne and Lihotz.

On appeal from Superior Court of New

Jersey, Chancery Division-Family Part,

Ocean County, FG-15-49-05.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Tabakman,

Designated Counsel and on the brief).

Anne Milgram, Acting Attorney General,

attorney for respondent (Michael J. Haas,

Assistant Attorney General, of counsel,

Scott J. Kieserman, Deputy Attorney General,

on the brief).

Yvonne Smith Segars, Public Defender,

Law Guardian for minor children (Noel

Christian Devlin, Assistant Deputy

Public Defender, on the brief).

PER CURIAM

L.V., the mother of twin boys, M.F. and Q.F., appeals from an order of January 10, 2006 terminating her parental rights to the two children. The order also terminated the parental rights of the children's natural father, M.F., with whom L.V. cohabits. However, M.F. has not appealed. M.F. has been diagnosed as suffering from bipolar disorder, not otherwise specified (NOS), impulse control disorder, intermittent explosive disorder, and personality disorder trait NOS with borderline and antisocial personality features. Medical reports reveal that M.F. has been hospitalized at three separate psychiatric hospitals on approximately six occasions and, as the result of his aggressive and explosive episodes, has at times required the type of restraints reserved for extremely agitated patients. At the time of trial, M.F. was receiving no treatment for his bipolar and other psychological conditions, although he had been treated with psychotropic drugs in the past. M.F. has a criminal history, as well as a history of drug and alcohol abuse, and a history of documented physical abuse of L.V. and of a former partner, who obtained a restraining order against him.

In her appeal, L.V. argues that the State failed to prove by clear and convincing evidence that termination of her rights was appropriate, and that the court erred in finding the proofs adequate in that respect. We disagree and affirm.

I.

The children were born on March 17, 2004 and were placed by the court in the custody of the New Jersey Division of Youth and Family Services (DYFS) one week later. The two boys are presently in foster care and have remained with the same foster mother since their initial placement shortly after their birth. The foster mother seeks to adopt the children. No relatives have been identified as suitable potential caregivers.

A complaint for guardianship was filed on May 20, 2005, and trial commenced on October 12, 2005. At the trial, the State called as witnesses the three DYFS workers who had been assigned to the case, as well as psychologist Dr. Chester Sigafoos and the foster mother. It also offered into evidence the records maintained by DYFS with respect to the matter. Neither the mother nor the father offered any witnesses on their behalf.

Testimony at trial by Dr. Sigafoos disclosed that L.V. is mildly mentally retarded, with an I.Q. of 59. Additionally, L.V. suffers from post-traumatic stress disorder as the result of childhood abuse, including abandonment by her own mother, rapes by her father and uncle, and physical abuse by her aunt. This condition, Dr. Sigafoos testified, affects L.V.'s ability to handle stressful situations, including parenting. Additionally, Dr. Sigafoos found that L.V.'s childhood abuse had made it difficult for her to accurately assess her partners, to whom she returned despite their physical assaults. L.V. was diagnosed at the age of nine as suffering from depression, and she has attempted suicide. Presently, she is the recipient of disability benefits as the result of her psychological condition.
Following an interview, review of records and testing, Dr. Sigafoos diagnosed L.V. as continuing to suffer from a depressive disorder NOS, mild mental retardation, a dependent personality disorder, a schizoid personality trait that causes her to remain aloof, and an obsessive-compulsive trait that causes her manner of thinking to be very rigid, inflexible, and not accommodating to the emerging needs of growing children. Additionally, Dr. Sigafoos testified that the mother's low score on a global assessment of functioning indicated a need for psychotherapy and probably medication.

After stating that his concern was "not just with [L.V.] by herself, but the relationship that she has with her partner because he has a much more disturbed state," the doctor testified that "at the present time she is not capable of being able to parent the children independently." As Dr. Sigafoos stated in his report:

The client has numerous psychopathological disorders and conditions that interfere with her ability to effectively parent her children, and pose a significant risk of harm to the children if untreated. Of particular concern is her ability to protect her [children] from dominating partners. The client's capacity for care and empathy ha[s] been impacted upon by her own abuse. The[] basic elements of a caretaker exist but are rendered mute when her submissive behavior gives in to the demands of others.

Although he recommended therapy, Dr. Sigafoos regarded L.V.'s prognosis as "poor" to "guarded" as the result of prior noncompliance with counseling and treatment. If treatment of L.V.'s conditions were to be successful, Dr. Sigafoos was of the opinion that the process would require one to two years.

An evaluation of the bonding between the foster mother and the twins disclosed a strong attachment. A similar evaluation of the bond between the twins and their natural parents revealed the twins to be comfortable in the parents' presence, but to exhibit little reaction to separation. On the basis of his observations, Dr. Sigafoos concluded:

The children are strongly attached to the foster parent and will suffer serious and enduring harm if not allowed to have a continued relationship with her. The clients do not have the capacity to help the children to recover from this loss.

Testimony by the three caseworkers established efforts by DYFS to facilitate supervised visitation between the twins and their natural parents. However, the parents' compliance with the visitation schedule was initially spotty, and after they had missed four visits in a row, the visits were suspended for a four-month period, but then were successfully resumed on a bi-weekly basis. Additionally, evidence established that DYFS offered a variety of services to L.V., including psychological, psychiatric and substance abuse evaluations, anger management and parenting classes, and mental health counseling in the family support program operated by Preferred Behavioral Health of New Jersey. L.V. also received counseling at The Center at Advanced Behavioral Care Services, but was discharged from its program because of her lack of cooperation with therapeutic goals. The Center's discharge summary discloses that L.V. claimed to be living with her children, failed to disclose her involvement with DYFS, stated that she had continually used cannabis and alcohol, refused to discuss her shortcomings in individual and group counseling, consistently cultivated inappropriate romantic relationships with program participants throughout treatment, slacked off in attendance, and responded negatively to staff direction. Attempts to arrange for L.V.'s entry into a program for battered woman operated by Providence House were resisted by L.V., and as a result, it does not appear that admission ever occurred.

II.

We affirm the conclusion of the Family Part judge that the evidence adduced by the State with respect to L.V. clearly and convincingly met the overlapping four prongs of the standard for termination of parental rights articulated in Division of Youth and Fam. Servs. v. A.W., 103 N.J. 591 (1986) and N.J.S.A. 30:4C-15.1a: namely, that (1) the children's health and development has been endangered by the parental relationship; (2) the parent is unable to eliminate the harm, and the delay of permanent placement will add to the harm; (3) DYFS has made diligent efforts to provide services to help the parent to correct the circumstances that led to the foster placement and considered alternatives to termination of parental rights; and (4) the termination of the parent's rights will not do more harm than good. We are bound to defer to the trial judge's findings and conclusions of fact that are supported by substantial evidence. Rova Farms Resorts v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (establishing the standard for review of factual findings and legal conclusions reached by a judge in a bench trial); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) (mandating that special appellate deference be accorded to family court factfinding); New Jersey Div. of Youth & Fam. Servs. v. P.P., 180 N.J. 494, 506 (2004)(imposing a clear and convincing burden of proof upon the State).

We reject the argument that the trial judge failed to evaluate L.V.'s fitness separately, and impermissibly lumped the parents together when determining that termination of the parents' rights was required. See New Jersey Div. of Youth & Fam. Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005). Rather, we find that the father's violent conduct and untreated mental illnesses were properly considered when evaluating L.V.'s fitness following a finding that L.V. was dependent upon the father and sought to excuse his conduct as a means of preserving the parties' relationship.

We agree with the trial judge that evidence of L.V.'s impaired intellectual functioning, her reliance upon the twins' natural father (an unsuitable parent), her emotional instability, and her inability to cope with the needs of growing boys and to provide minimally adequate care for them was sufficient to establish that the boys would be endangered by reunification and the establishment of a parental relationship with her, thereby satisfying the first prong of the standard for termination of parental rights. In particular, evidence suggests that L.V.'s dependent personality traits and tolerance of abuse create a danger for the children, who if reunited with their mother, would be exposed directly or indirectly to their father's abuse and violence, the existence of which L.V. has consistently attempted to deny. The evidence also supports the conclusion that L.V. cannot provide for the twins' daily needs as the result of her own mental illness and diminished mental functioning.

In connection with the second and third prong, we note that in this case DYFS offered significant services to L.V. in an effort to achieve a goal of reunification. Although we recognize that L.V. was compliant in attending anger management and parenting classes and, after initial problems, regularly attended supervised visitation sessions, we find it significant that she did not cooperate with attempts to arrange substance abuse, psychological and psychiatric evaluations. Further, she was not compliant with the counseling that was recommended as the result of the evaluations that eventually occurred, and gave no evidence of any sustained effort to overcome the psychological conditions that rendered her unfit as a parent. Moreover, we find to be unchallenged the opinion of Dr. Sigafoos that, even if compliance were achieved, any measurable progress by L.V. through counseling would require a period of one to two years. As the trial judge recognized, under current law, a child's best interest has been recognized as requiring permanency of placement, and for that reason, the emphasis has shifted away from the protracted efforts to obtain reunification that would be required in this case for L.V. ever to obtain custody of her twin boys. New Jersey Div. of Youth & Fam. Servs. v. C.S. 367 N.J. Super. 76, 111 (App. Div), certif. denied, 180 N.J. 456 (2004). Moreover, even with counseling, it does not appear reasonably foreseeable that L.V. can cease to jeopardize the physical and mental health of her two sons. A.W., supra, 103 N.J. at 607; see also In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Evidence that the termination of the parental rights of L.V. and the projected adoption of the twins by their foster mother would not do more harm than good, required by the standard's fourth prong, is provided by the uncontroverted opinion of Dr. Sigafoos, who noted the close bond established between the boys and the only caregiver they have known, and testified to the harm that would befall the children if this bond were to be severed. Separation anxiety, feelings of abandonment and a resumption of the gastrointestinal problems from which the twins previously suffered have been posited as likely to arise if the present foster parent relationship were severed.

In summary, our detailed analysis of the record does not reveal the bias toward termination and adoption on the part of DYFS that L.V. posits, or the unquestioning bias toward the State's position on the part of the trial judge that L.V. also suggests. Rather, the record reflects the solid evidential foundation for the court's order that is required in matters of this sort. P.P., supra, 180 N.J. 505-07.

The order terminating the parental rights of L.V. is therefore affirmed.

 

A report by psychologist Edward G. Kardell, Psy.D., dated March 2, 2005, upon which L.V. heavily relies on appeal, indicates that L.V. attended eight individual counseling sessions and nine sessions that combined individual therapy with family sessions that included the children's father. Dr. Kardell was of the opinion that reunification was a workable goal. However, he was not called as a witness at trial by L.V., and his opinion was therefore not subject to cross-examination. A review of program reports indicates that L.V. downplayed the events leading to the removal of the children, misrepresented the length of time she had custody of them by reporting that she had been overwhelmed by their care, and denied that she had suffered physical abuse inflicted by the children's father. The trial judge did not rely on this report in reaching her conclusions.

(continued)

(continued)

12

A-3364-05T4

RECORD IMPOUNDED

November 3, 2006

 


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