NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4134-05T44134-05T4

NEW JERSEY DIVISION

OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

D.M.,

Defendant-Appellant,

IN THE MATTER OF THE

GUARDIANSHIP OF D.M.R.

AND L.A.R.,

Minors-Respondents.

 

Submitted November 29, 2006 - Decided December 26, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-100-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Michael J. Haas, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor respondents, D.M.R. and L.A.R. (Cynthia McCulloch DiLeo, Designated Counsel, on the brief).

PER CURIAM

Following a bench trial before Judge Melendez, defendant D.M. appeals from a judgment terminating her parental rights to her two sons, D.M.R., born April 18, 1995, and L.A.R., born February 23, 1997. On appeal, she raises the following arguments:

POINT I - THE JUDGMENT FOR GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE FOUR PRONGS OF THE "BEST INTERESTS" TEST BY CLEAR AND CONVINCING EVIDENCE.

(A) THE DIVISION'S EVIDENCE SHOWED ONLY "INADEQUATE PARENTING" ABILITY, NOT THE "UNAMBIGUOUS AND UNIVERSALLY CONDEMNED" HARM REQUIRED UNDER THE FIRST PRONG TO JUSTIFY TERMINATION OF PARENTAL RIGHTS.

(B) UNDER THE SECOND PRONG, THE DEFENDANT CAN BECOME PARENTALLY FIT IN TIME TO MEET THE NEEDS OF D.M.R. AND L.A.R.

(C) THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO REUNIFY THE DEFENDANT WITH D.M.R. AND L.A.R., AND FAILED TO CONSIDER KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.

(1) THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO OFFER SERVICES TO THE DEFENDANT BECAUSE IT WAS NOT COMMITTED TO THE SUCCESS OF ITS EFFORT.

(2) THE DIVISION FAILED TO CONSIDER KINSHIP LEGAL GUARDIANSHIP AS AN ALTERNATIVE TO TERMINATION OF PARENTAL RIGHTS.

(D) THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS INSTEAD OF THE STATUTORILY REQUIRED "BEST INTERESTS" TEST UNDER THE FOURTH PRONG.

We have reviewed the record in its entirety and find no merit to defendant's arguments. Consequently, we affirm.

The trial was held on October 3, 2005. The Division of Youth and Family Services (the Division) presented the testimony of Wildelea Ortiz, a Division caseworker, and Dr. Vivianne Rodriguez-Silverstein, a psychologist. Defendant testified, but presented no expert testimony.

Defendant's involvement with the Division began on July 27, 1995, when the Division substantiated a report that she failed to provide D.M.R., who experienced respiratory distress, with his nebulizer treatments. The children remained in their mother's custody until April 30, 1997, when the Division substantiated allegations that defendant had force-fed D.M.R. to the point where he began to choke. As a result, the children were removed from defendant's care and placed with their paternal grandparents. The following June, the children's father obtained a restraining order against defendant; in July, the paternal grandparents obtained a restraining order against her.

The Division administered a psychological assessment to defendant in October 1997. She was diagnosed with significant psychological problems and a "poor ability to learn parenting skills."

Ortiz testified that defendant was physically violent and abusive of her children. As a result, defendant's visitation with her children was suspended on more than one occasion. One example of this conduct occurred in July 1999, when a Division worker observed defendant curse at and slap D.M.R. in the hallway of the Division's office. On another occasion, in March 2002, the Division received a referral from the police. The children's paternal grandmother had reported that D.M.R. returned from a visit with his mother with scratches on his neck and face. The police officer reported that "he saw light scratches" on the child's neck and face, but no marks were visible when the Division worker investigated.

The following month, D.M.R. was admitted to the Castle Program in Camden, where he participated in individual, family, and group therapy for symptoms of depression and Attention Deficit Hyperactivity Disorder (ADHD). A therapist reported that defendant's visitation with D.M.R. should be terminated because D.M.R. had frequent nightmares about and expressed fear of his mother. Defendant was referred to parenting classes and therapy.

During a psychiatric examination in June 2002, the evaluating doctor transported defendant to the emergency room because she was suicidal. Defendant reported hallucinations and hearing voices. She was diagnosed with "major depression with psychotic features."

That September, defendant was terminated from her parenting group for lack of attendance. Although she regained weekly visitation rights in November, her children displayed behavioral problems after visits with her.

Defendant was referred to counseling in 2003, but attended few sessions. By that September, both children were taking medication for ADHD and exhibited behavioral problems. They did not want to see their mother. They did, though, interact well with their grandparents who want to adopt them; the children view their grandparents as their parents, calling them "Mom and Pop."

In September 2005, Dr. Rodriguez-Silverstein evaluated defendant, the children and their grandparents. The psychologist opined that defendant was unlikely to seek treatment for her psychological problems. Defendant had a tendency to be "distant and shallow" in terms of interpersonal relationships. Her level of anxiety was permanent, which resulted in her stress becoming "unmanageable" and causing her to become "paralyzed or . . . completely [dysfunctional] or [in need of] psychiatric intervention." The doctor believed that defendant's condition would place the children at risk if they were in her care because their hyperactivity disorder would cause her substantial stress. Defendant was diagnosed with "anxiety, anxiety-related disorders, and paranoia."

Dr. Rodriguez-Silverstein opined that defendant would not likely be able to parent the children. The psychologist said, "it's been close to eight years since the involvement with the Division and the children being removed from her custody, nothing has changed and it doesn't seem . . . that anything different will happen."

The psychologist also evaluated the children to assess whether she should conduct a bonding evaluation between the children and their mother. She found that "both [children] had a very negative and even scary perception[] of [defendant]. Mentioning defendant to D.M.R. caused him to react with a "very intense withdrawal." When asked about his mother, D.M.R. moved to the edge of the sofa and ceased eye contact. Asked if he remembered his mother, he responded, "I remember her[,] she used to hit me a lot when I was little," and he would feel "mad really mad" if she were to visit. L.A.R. said, "never say [defendant's name] to me and my brother she bad."

Dr. Rodriguez-Silverstein concluded that a bonding evaluation with the children and their mother should not be scheduled, but she did conduct a bonding evaluation with the children and their paternal grandparents. D.M.R. was particularly bonded with his grandfather. The psychologist found it significant that D.M.R., who was normally withdrawn and introverted, was openly affectionate with his grandfather. She concluded that the children were bonded and felt safe and protected with their paternal grandparents, and they would be "at risk of considerable psychological problems if they were to be removed from the grandparents' home."

In her report, the psychologist noted that if D.M.R. was removed from his grandparents' care, he would be in danger because of his traumatic memories of his mother. She based this opinion on D.M.R.'s strong emotional reaction to just the mention of his mother's name. The doctor wrote that L.A.R., only a few months old at the time of his separation from his mother, was not bonded with defendant and had little memory of her, and what perception he did have was negative. The psychologist testified that permanency was very important to the children who "really need to have this whole issue resolved. . . . [N]ot having their permanent status resolved is a continued source of stress and adds to their already existing psychological problems." She observed that being removed from their paternal grandparents would cause the children serious and enduring harm because "they're very close and feel safe with their grandparents and these are children that their sense of safety has been threatened. They've had experiences that make them feel insecure, so maintaining[,] . . . that bond is crucial, it's very important."

Defendant testified at trial. Though she now lives in a small apartment, she intended to obtain more adequate housing were she to have her children returned to her. She stated that her income consists of $600 per month in disability payments for her asthma condition and that she has been collecting disability since she was "a little girl." She last held a job in 1997.

Defendant remembered completing two parenting classes, and admitted to failing to take the initiative in pursuing Division programs that could help her. She did not remember being given information by a Division worker about therapy. She denied ever hitting her children, and said that it was their grandmother who hit them; she also claimed that their father injured the children with "shoes, belt and stick." She denied threatening D.R. or his family, but claimed it was they who threatened her. She did not remember having psychological evaluations or recall being suicidal. She testified that she was familiar with ADHD and that she would be able to manage her children's condition.

Judge Melendez concluded that by "more than clear and convincing" evidence "beyond all reasonable doubt" all four prongs of the best interest test established in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), as codified in N.J.S.A. 30:4C-15.1(a), had been met. She found that defendant has "serious emotional problems" and is "overwhelmed by anxiety and paranoia and completely distorts and denies the events that precipitated the removal of her children." Defendant exhibits significant psychological depressive and impulsive behavior problems and placing the children in her care would place them in danger. The judge found that defendant has made no "substantial progress in coming to terms with her depression and anxiety," she "does not have a stable job or appropriate housing," and she has been unemployed since 1997, with her only source of income being social security disability benefits. The court observed that defendant had not seen the children since 2003, when her parenting time was suspended. The judge accepted the expert's opinion that defendant would have "significant difficulty parenting the children," and if the children were to be removed from their grandparents' home, they "would be at risk of psychological problems."

The judge found that the children bonded with their paternal grandparents and had essentially no relationship with their mother. And, while the Division had made reasonable efforts to provide services to defendant, the services were unavailing. The judge also found that defendant had physically abused D.M.R.

Our review of a trial court's decision in a termination of parental rights case calls for us to determine whether the decision was based on clear and convincing evidence supported by the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). The "court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotations omitted).

Where the State seeks to terminate parental rights, it must surmount the strong presumption in favor of parental rights by clear and convincing evidence by meeting the four-pronged test articulated by the Court in A.W., supra, 103 N.J. at 604-10, and later codified in N.J.S.A. 30:4C-15.1. Under the statute, the Division may terminate parental rights where it is shown that:

(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;
 
(3) The division has made diligent 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].

We begin with whether the children's health and development have been or will continue to be endangered by their relationship with their mother. Defendant complains that her parental rights were terminated because she is poor, which in itself is not a harm, N.J. Div. of Youth and Family Servs. v. B.W., 157 N.J. Super. 301, 306 (Cty. Ct. 1977), and that the trial court failed to identify the harm that the children sustained as a result of her psychological problems. We disagree. The evidence overwhelmingly shows that the children's health and development will be endangered by a relationship with her.

Dr. Rodriguez-Silverstein testified that persons with defendant's level of anxiety become paralyzed or dysfunctional in stressful situations, and individuals with her level of treatment rejection will not seek help when they need it, and defendant does need help. The court referred to the psychologist's assessment that defendant suffered from an enduring anxiety condition that rendered her "unable to function at all." The judge recognized that defendant was unable to provide for her children adequately because she did not "accept [her own] limitations and emotional problems and is not taking any steps towards treatment."

Defendant is not simply economically disadvantaged; she is incapable of nurturing her children. Her psychological problems, and her inability to come to grips with them, are at the root of her inability to parent.

The trial judge found ample evidence of harm to the children, both physical and emotional. The Division verified that defendant force-fed D.M.R. when he was two years old. She failed to medicate him for a respiratory condition. He returned from a visit with his mother with scratches on his face. The children exhibited strong negative emotional reactions to their mother, to the point that D.M.R. became physically withdrawn. The judge found, and the evidence supports, that defendant's anxiety coupled with the children's special needs due to their ADHD would put them in danger if placed in defendant's care. The judge found clear evidence of past and potential future harm to the children.

Next, we turn to whether defendant is unwilling or unable to eliminate the harm. She has been unable for at least eight years to rectify her situation. Her psychological condition renders her unable to perceive that problems exist, and she is therefore unwilling to seek help. As the Division's expert explained, defendant has

prolonged emotional problems and issues and . . . doesn't want to deal with [them] or . . . do the . . . things that could change or make a difference. . . . She does not feel that she needs any services, . . . [the] number one barrier towards doing anything or improving anything is the willingness of the person. You can't force a person to deal with difficulties if they don't want to or they don't . . . have the awareness or the acceptance that they need to.

Defendant did not present any expert testimony to contradict this assessment of her parenting capability.

The trial court found that defendant suffered from

serious emotional problems. . . . She does not accept responsibility for her situation and is not receptive to any kind of treatment. Most importantly, nothing has changed during the 8 years in which [defendant] has been involved with the Division.

. . . .

Since the children were placed with the paternal grandparents, [defendant] has made no substantial progress in coming to terms with her depression and anxiety. She denies that she ever abused or neglected her children. She insists that the children's father was the one force feeding [D.M.R.]. . . . She continues to deny her responsibility for her present situation. She also feels that her participation in the services offered by the Division that she can recall was enough for her to regain custody. For instance, she told Dr. Silverstein that she completed the parenting course and feels that she has done what is necessary to get her children back.

Defendant lacks a clear plan for caring for her children. Though she expressed a desire to have them back, her plans for getting a job and caring for her children are vague, and do not address her underlying psychological issues. As the judge found, defendant's circumstances have not changed in eight years. It is clear from her inability to even remember, acknowledge, or take responsibility for, her existing problems that she is very unlikely to change.

The next question is whether the Division has made diligent efforts to provide services to defendant. The judge concluded that it has, and we agree.

The Division provided defendant with parenting classes in 1997 and 2003. In neither instance did defendant follow through. The Division also referred her for individual counseling in 2003. Defendant told Dr. Rodriguez-Silverstein that she did not need counseling because it would not help her get her children back, when, in fact, undergoing counseling was precisely what the Division recommended if she wanted her children returned.

The Division did not seek to terminate her parenting rights for eight years, but instead attempted to work with defendant. Judge Melendez found that "from the time of the last referral for counseling to the present, [defendant] has not made any attempts to attend any parenting education classes, therapy, parenting, go to counseling or to obtain psychological treatment." The record supports those findings.

That brings us to whether termination of parental rights will not do more harm than good. In determining that the children's best interests would be served by remaining with their grandparents, the judge weighed heavily that D.M.R. and L.A.R. are bonded with their grandparents, while they are not bonded with their mother. The focus under the fourth prong of the A.W. test is permanency for the child. A.W., supra, 103 N.J. at 610. "If one thing is clear, it is that the child deeply needs association with a nurturing adult. Since it seems generally agreed that permanence in itself is an important part of that nurture, a court must carefully weigh that aspect of the child's life." Ibid.

According to Dr. Rodriguez-Silverstein, the children's unresolved status was a continued source of stress for them and their sense of safety is threatened around defendant. The psychologist testified that the children have a "scary and negative" perception of their mother. D.M.R. physically withdrew at the mention of her name, and L.A.R. said "never say [my mother's name] to me or my brother."

In contrast, the children respond to their grandparents as if they were the parents. The children have been in their care for almost their entire lives. The judge found, they "will suffer serious and enduring harm if removed from their [grandparents] care." Permanence and security for the children weighed heavily in the decision not to remove them from their grandparents. The fourth prong of the A.W. test has clearly and convincingly been met.

Finally, we turn to defendant's argument that the Division should have offered kinship legal guardianship as an alternative to termination of her parental rights. The Kinship Legal Guardian Act, N.J.S.A. 3B:12A-1 to -7, was intended to "address[] the needs of children and caregivers in long-term kinship relationships" where "relatives, including grandparents, find themselves providing care on a long-term basis to these children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver's own child or sibling who is the parent." N.J.S.A. 3B:12A-1(b), (d).

Unlike termination of parental rights, kinship legal guardianship does not sever the parent's legal relationship to the child. N.J.S.A. 3B:12A-4a(5). Nonetheless, for a kinship legal guardianship to be considered, adoption of the child must be neither feasible nor likely. P.P., supra, 180 N.J. at 509. Here, defendant has not established that adoption is neither feasible nor likely. Indeed, the paternal grandparents want to adopt the children, who have bonded with them. Thus, no basis exists for a kinship legal guardianship.

We affirm substantially for the reasons expressed by Judge Melendez in her decision from the bench on October 28, 2005, as memorialized in her judgment of guardianship entered on that date.

Affirmed.

 

The children's father, D.R., voluntarily surrendered his parental rights on March 24, 2005.

(continued)

(continued)

18

A-4134-05T4

RECORD IMPOUNDED

December 26, 2006