. NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.P.Q.O.

 

.NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5905-04T45905-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.P.Q.O.,

Defendant-Appellant,

and

F.G.S.,

Defendant,

IN THE MATTER OF THE

GUARDIANSHIP OF D.P.F.O.,

A Minor.

 

Submitted: December 21, 2005 - Decided:

Before Judges Fall, Parker and Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FG-07-341-04.

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

Peter C. Harvey, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brett L. Carrick, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor child D.P.F.O. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship case, defendant K.P.Q.O. appeals from entry of an order of guardianship in the Family Part on May 18, 2005, terminating her parental rights to her daughter, D.P.F.O., and placing the child in the care and guardianship of plaintiff New Jersey Division of Youth and Family Services (DYFS) for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

K.P.Q.O., who was born on October 18, 1983, gave birth to D.P.F.O. on October 10, 2003, at UMDNJ University Hospital in Newark. The child's father was not named on the birth certificate.

DYFS has had a long history of involvement with K.P.Q.O., dating back to the birth of her son, O.C., Jr., on November 1, 2001. On November 2, 2001, DYFS received a referral from a social worker at the hospital expressing concern for that child's safety based on an alleged long history of suicidal behavior and depression of K.P.Q.O., and her failure to take prescribed medication. A DYFS caseworker met with K.P.Q.O. and the child's father, O.C., Sr., at the hospital on November 2; K.P.Q.O. denied current depression or suicidal ideation, but admitted to same in the past. K.P.Q.O. agreed to a case plan under which she would engage in mental health counseling, parenting classes, and a home assessment; the child was released into the care of his parents.

On April 4, 2002, DYFS received a referral from O.C., Sr. and his mother, contending that K.P.Q.O. had been neglecting O.C., Jr. due to her history of mental illness, depression and suicide attempts. K.P.Q.O. had left the residence of O.C., Sr. to live with her stepsister in Passaic. After an investigation, it was determined that K.P.Q.O. had returned to live with O.C., Sr. An inspection of that apartment disclosed garbage all over the floor, dirty plates in the bedroom and deplorable conditions. Thereafter, K.P.Q.O. took O.C., Jr. and went to reside with a friend. The DYFS caseworker recommended exploring relative placement based on many risk factors for the child; obtaining mental health records of K.P.Q.O.; and conducting a psychiatric evaluation of her. DYFS then initiated a child abuse and neglect action against K.P.Q.O. in the Family Part, seeking care and custody of O.C., Jr.

A court-ordered psychiatric examination of K.P.Q.O. was conducted by Dr. John Liccardo on May 7, 2002. In his report dated May 30, 2002, Dr. Liccardo diagnosed her as suffering from a major psychiatric illness, most likely a Schizo-affective Disorder that rendered her incapable of providing even minimally adequate parenting for O.C., Jr. on an independent basis. In a report dated July 10, 2003, Dr. Alexander Iofin, a psychiatrist, reviewed the extensive mental health history of K.P.Q.O., and rendered a diagnosis similar to that of Dr. Liccardo, also noting she had borderline intellectual functioning. Dr. Iofin recommended intensive outpatient psychiatric treatment, five days per week, and concluded that K.P.Q.O. would not be capable of caring for O.C., Jr. at any point in the future.

On July 22, 2003, while pregnant, K.P.Q.O tested positive for cocaine. A guardianship complaint was filed by DYFS in the Family Part against both K.P.Q.O. and O.C., Sr., seeking termination of their parental rights with respect to O.C., Jr. After a trial conducted on November 17, and November 18, 2003, the Family Part entered an order of guardianship on November 25, 2003, terminating the parental rights of both parents; both K.P.Q.O. and O.C., Sr. had defaulted in that case. By that time, K.P.Q.O. had given birth to D.P.F.O. approximately one month earlier.

On November 6, 2003, DYFS received a referral from a DYFS caseworker stating that K.P.Q.O. had called her and informed her that she had given birth to another child. The contacted DYFS worker expressed concern for the welfare of that child, given K.P.Q.O.'s mental health and substance abuse history. Numerous attempts by DYFS and the police over the next several weeks to locate K.P.Q.O. and the child were unsuccessful.

On November 10, 2003, DYFS filed a child abuse and neglect complaint in the Family Part, Essex County, Docket Number FN-07-317-04, resulting in the court issuing an order on November 13, 2003, vesting custody of D.P.F.O. with DYFS. An order continuing custody of D.P.F.O. with DYFS was entered on December 18, 2003, directing DYFS to continue to seek the whereabouts of the child.

On January 7, 2004, K.P.Q.O. and D.P.F.O. were located at Lincoln Medical Center in Bronx, New York. D.P.F.O. had a severe rash, upper respiratory problems, and was filthy. DYFS effected an emergency removal of the child from the care of K.P.Q.O., and placed D.P.F.O. into foster care in accordance with the orders of November 13, 2003 and December 18, 2003.

On February 26, 2004, the Family Part entered an order finding that DYFS was not required to provide reasonable efforts to prevent placement of D.P.F.O. on the basis that the parental rights of K.P.Q.O. had been involuntarily terminated with respect to O.C., Jr. See N.J.S.A. 30:4C-11.2a(3) (providing that DYFS shall not be required to provide reasonable efforts to prevent placement where the rights of the parent to another of that parent's children has been involuntarily terminated).

Supervised visitation sessions were arranged for K.P.Q.O. with D.P.F.O. during the pendency of the case. However, of eight scheduled visits, K.P.Q.O. only attended three.

On June 8, 2004, DYFS filed a complaint for guardianship of D.P.F.O., seeking an order terminating the parental rights of K.P.Q.O. F.G.S. and A.M.F. were named as defendants on the basis of information indicating that one of them might be the biological father of D.P.F.O.

Paternity testing completed on November 9, 2004, disclosed that F.G.S. was the biological father of D.P.F.O. The record reflects that F.G.S. has an extensive criminal history, and had pled guilty on December 5, 2003 before a federal magistrate to a charge that he had reentered the United States after having been deported. He was incarcerated pending deportation to the Dominican Republic.

The issues in the guardianship complaint were tried in the Family Part before Judge Glenn A. Grant on April 25, April 26, and May 16, 2005. At that time, F.G.S. was in the Dominican Republic, but was represented by counsel and participated in a portion of the hearing by telephone.

Migna Rosa, a DYFS caseworker with the Adoption Resource Center, testified to her involvement with K.P.Q.O. during the guardianship case involving O.C., Jr. Rosa stated that she became aware that K.P.Q.O. was pregnant on June 17, 2003. Thereafter, Rosa discovered that K.P.Q.O. had been missing appointments for her prenatal care. Rosa testified that a July 22, 2003 urine screen disclosed that K.P.Q.O. had been using cocaine, which K.P.Q.O. admitted. Rosa stated further that, upon inquiry, K.P.Q.O. identified A.M.F. as the child's father, but later named F.G.S. as D.P.F.O.'s father.

Prior to the guardianship trial involving O.C., Jr., K.P.Q.O. had contacted Rosa and informed her of D.P.F.O.'s birth. Rosa referred K.P.Q.O. to a clinic for medical care for herself and D.P.F.O., and reminded K.P.Q.O. of the upcoming trial. However, K.P.Q.O. failed to appear at trial, and when Rosa attempted to contact K.P.Q.O. at her apartment to check on the child, she was gone. DYFS then initiated a child abuse and neglect action and obtained custody of D.P.F.O.

Rosa testified that D.P.F.O. was located on January 7, 2004 in a hospital in New York, where the child was being treated for a rash on her legs and arms and a respiratory infection. Rosa stated the child was also dirty and hungry. Rosa explained that the DYFS permanency plan for D.P.F.O. was foster parent adoption, noting that no reasonable alternatives to adoption had been advanced.

Laura Ryan, a DYFS caseworker, was assigned to D.P.F.O.'s case from April 28, 2004, until February 25, 2005. Ryan testified that K.P.Q.O. was living in the Bronx, New York, and supervised visitation sessions with D.P.F.O. were arranged by her, including providing K.P.Q.O. with some money and a mass transit pass. However, K.P.Q.O. moved without informing Ryan, and commencement of those sessions was delayed. Through F.G.S., Ryan discovered that K.P.Q.O. had moved into a shelter, but could not be contacted there by telephone.

Ryan stated that the only plan presented by K.P.Q.O. for the care of D.P.F.O. was that she wanted the child to go to the Dominican Republic to reside there with F.G.S.'s relatives. Initially, K.P.Q.O. had proposed R.Y., who she identified as the child's godmother, as a possible placement for D.P.F.O. However, Ryan explained that R.Y. had been investigated and ruled out because she had help secrete the child from DYFS after the child's birth. Ryan stated that F.G.S.'s relatives were ruled out because they were strangers to the child, and by that time a bonding evaluation by Dr. Leslie J. Williams, a clinical psychologist, revealed that D.P.F.O had bonded with her foster parent.

Ryan testified that between June 2, 2004 and September 9, 2004, there were numerous failed visits by K.P.Q.O., and then the visits were suspended by the trial court because of acting out by the child. Ryan noted that K.P.Q.O. also missed a scheduled appointment for a psychiatric evaluation.

Ryan visited D.P.F.O. in her foster home and described it as a nice home in a gated community, where D.P.F.O. had her own room, with good interaction noted between D.P.F.O. and her foster parent.

Dr. Williams testified to the results of her bonding evaluation conducted on December 28, 2004. Dr. Williams stated that D.P.F.O. had been placed with her foster parent when she was only three months old, and had become very attached to the foster parent and was thriving in his care. Dr. Williams noted that D.P.F.O. referred to her foster parent as "dada," and viewed her foster parent as her psychological parent and the person who met her physical and emotional needs. Dr. Williams stated that D.P.F.O. was in the process of forming a positive bond with her foster parent. Although Dr. Williams could not conclude that there was a permanent bond because of the young age of D.P.F.O., she testified that if separated from the foster parent D.P.F.O. "would suffer a sense of loss, sadness, and confusion[.]"

Dr. Alexander Iofin, a psychiatrist, performed an evaluation of K.P.Q.O. on March 10, 2005, issuing a report dated April 6, 2005. Dr. Iofin had also examined K.P.Q.O. in 2003. Dr. Iofin diagnosed her as suffering, on Axis I, from a Schizoaffective Disorder, Depressed Type; a Post Traumatic Stress Disorder due to being a victim of sexual abuse; and a cocaine abuser, in remission. On Axis II, Dr. Iofin diagnosed K.P.Q.O. as suffering from Provisional Borderline Intellectual Functioning. Dr. Iofin felt that K.P.Q.O. should be receiving ongoing treatment for her Axis I afflictions; he also recommended that a psychological evaluation be conducted.

Dr. Iofin stated that K.P.Q.O. will require lifetime treatment, and D.P.F.O. would be at risk if she failed to maintain a treatment and medication regimen.

No witnesses were produced by defendants. Judge Grant issued a written decision in this matter dated May 16, 2005, finding that DYFS had proven by clear and convincing evidence the four prongs contained in N.J.S.A. 30:4C-15.1(a), and had established that the termination of the parental rights of K.P.Q.O. and F.G.S. served the best interests of D.P.F.O. An order of guardianship was entered on May 18, 2005, terminating their parental rights and placing the child in the care and custody of DYFS for all purposes, including placement for adoption.

On appeal, K.P.Q.O. presents the following argument for our consideration:

POINT I

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST SUPPORTING THE COURT'S FINDINGS THE "BEST INTERESTS" TEST WAS PROVED BY CLEAR AND CONVINCING EVIDENCE.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid.

The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(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 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 standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. 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 addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

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 its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

 
After analyzing the record in the light of these principles and the written arguments advanced by the parties, we conclude that the issues presented by K.P.Q.O. are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons articulated by Judge Grant in his comprehensive written decision dated May 16, 2005.

Affirmed.

The order also terminated the parental rights of the child's biological father, F.G.S.; he has not appealed.

This history is relevant since "proof of the abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child of . . . the parent[.]" N.J.S.A. 9:6-8.46a(1).

(continued)

(continued)

15

A-5905-04T4

RECORD IMPOUNDED

January 4, 2006