NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. N.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6364-04T46364-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

N.F.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF Q.F., A.L. and K.F.,

Minors.

 

Submitted: March 27, 2006 - Decided April 12, 2006

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FG-07-159-04.

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

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Frantz Masse, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship action, defendant N.F. appeals from an order entered in the Family Part on June 14, 2005, terminating her parental rights to her three children, Q.F., A.L. and K.F., and placing those children in the care, custody and guardianship of the New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

N.F. is the mother of five children: Q.F., a male child born on June 26, 1994; A.L., a female child born on June 9, 1995; L.L., a male child born on July 2, 1996; C.F., a female child born on August 17, 1997; and K.F., a female child, born on October 6, 1999. R.L. is the father of Q.F. and A.L., and K.P. is the father of K.F.

The family has a long history with DYFS dating back to October 23, 1995, when the Division received a referral from a social worker at Muhlenberg Regional Medical Center in Plainfield, reporting that A.L. had been admitted to the hospital suffering from bronchitis, congestion and shortness of breath. An investigation by DYFS disclosed that the family had been residing with C.L., the paternal grandmother; that there was no electricity or heat in the premises; and that N.L. and her children resided in a bedroom that smelled of urine, with a mattress on the floor and a pit bull dog in a cage. DYFS opened a case for supervision. N.F. agreed to remove the dog from the premises and place the mattress on a bed frame. DYFS referred N.F. for parent-skills classes at Good Beginnings in Plainfield, which were to begin in October 1995.

On July 2, 1996, N.F. gave birth to L.L., her third child. On October 16, 1996, the Division received a referral from a social worker at Muhlenberg, reporting that Q.F. had been brought to the hospital after being physically abused by R.L., resulting in the child sustaining a bruise on his forehead and scratches on his face. An investigation disclosed that N.F. and R.L. had been separated; the abuse was substantiated.

At the time of that incident, N.F. and her three children were still residing with C.L. Upon inquiry by DYFS, C.L. reported that N.F. would leave for days and weeks at a time, with her whereabouts unknown.

On October 17, 1996, N.F. obtained a domestic violence restraining order against R.L. The Division referred N.F. to a battered women's shelter in Elizabeth. N.F. took Q.F. with her and began living at the shelter, leaving L.L. and A.L. with C.L.

On January 30, 1997, DYFS received a referral from a social worker that N.F. had brought L.L. to the emergency room of Elizabeth General Hospital because the child had an ear infection. The child was dirty, and N.F. appeared to be overwhelmed and depressed. By that time, N.F. had moved from the shelter into an apartment that she was sharing with an acquaintance, M.L. Sometime in January 1997, C.L. had sent L.L. and A.L. back to N.F. after she and N.F. had gotten into an argument.

A DYFS investigation determined that N.F. had no family resources to assist her with the care of the three children. DYFS provided financial assistance, and referrals for parent-skills training and homemaker services were implemented.

On April 1, 1997, the Division received a referral from Rich Clemento, the supervisor for Teaching Homemaker, stating that N.F. was homeless, was staying in a hotel, and had insufficient funds to feed her family. Clemento picked them up at the hotel and brought them to the Division's district office. The children were placed back with C.L., and N.F. returned to the shelter in Elizabeth.

At the request of DYFS, a psychological evaluation of N.F. was completed by Dr. Richard S. Klein on April 15, 1997. Dr. Klein found N.F. was suffering from depression, and felt she was not competent to parent children without direct supervision from a responsible adult. He recommended that N.F. undergo outpatient mental health treatment, and that she receive parent-skills training. N.F. failed to complete the parent-skills training, and the homemaker services were terminated after the three children were placed with C.L.

On August 17, 1997, N.F. gave birth to C.F., a female child. C.F., who was suffering from distress at birth, was placed in a therapeutic foster home, as N.F. was unable to care for her.

On September 25, 1997, DYFS again referred N.F. for parent-skills training. N.F., who had been homeless since February 1997, began living with relatives in Newark. N.F. failed to complete the eight-week Essex County Parenting Skills Program to which she had been referred.

On November 1, 1997, C.L. contacted N.F. and told her to pick up the three children, informing N.F. that she could no longer care for them because she was getting married. N.F. picked up the children, but on November 11, 1997, left them with a family friend and did not return. On November 13, 1997, Q.F., L.L. and A.L. were placed in foster care. On December 22, 1997, a child abuse and neglect action was filed by DYFS against N.F. in the Family Part under docket number FN-20-66-98W, and the court granted custody of the three children to the Division.

N.F. was again referred to parenting classes in March 1998, and was also referred to the Family Advocacy Support Team (FAST) program to aid in reunification of the children with her. However, again, N.F. did not complete the parenting classes. In May 1998, N.F. was arrested for drug-related charges and remained in the Union County Jail until May 14, 1998.

On January 20, 1999, the Division placed Q.F. and A.L. in the physical custody of their maternal grandfather, G.F.; placed L.L. with her maternal aunt, M.F.V.; and placed C.F. with her maternal aunt, G.B.

At the request of the Division, Dr. John J. Liccardo, a psychiatrist, performed an evaluation of N.F. on April 1, 1999. He concluded that N.F. was suffering from a mixed personality disorder, and had failed to make any significant changes in her life since her children had been in placement. He recommended that the children not be removed from their then-current placement with relatives.

On June 23, 1999, the Family Part issued an order terminating the child abuse and neglect litigation and continuing legal and physical custody of the children in their relative placements.

On October 6, 1999, N.F. gave birth to her fifth child, K.F., at Beth Israel Medical Center. On October 7, 1999, the Division received a referral from the hospital that N.F. had not received prenatal care, and that K.F. was suffering from respiratory distress. On October 18, 1999, N.F. signed a foster care placement agreement authorizing the Division to place K.F. in foster care. The child was placed with R.N., a family friend, on October 27, 1999.

In or about June 2002, G.F. moved back to Haiti and left Q.F. and A.L. in the care of N.F. Additionally, R.N. had returned K.F. to the care of N.F. During an unannounced visit to N.F.'s home on August 30, 2002, a DYFS caseworker found those three children were living with N.F. in deplorable conditions and she was about to be evicted.

On September 4, 2002, N.F. signed a foster care placement agreement, and Q.F., A.L. and K.F. were placed into foster care. Although the DYFS caseworker had offered to place N.F. and the three children in a shelter together, N.F. had refused.

At the request of DYFS, a psychological evaluation of N.F. was conducted by Dr. Karlaina Brooke on February 24, 2003. Dr. Brooke recommended that the children not be returned to N.F.'s care; that supervised visitation sessions occur; and that N.F. attend parent-skills training, which she had still not completed.

On March 20, 2003, the Division filed a child abuse and neglect complaint against N.F.; R.L. (the father of Q.F. and A.L.); J.B. (the putative father of K.F.); and G.F., seeking an order placing the care and custody of Q.F., A.L. and K.F. with the Division. An order was entered on that date granting DYFS custody of the three children.

Attempts to reunify the family were unsuccessful, and relative placements were ruled out. On December 8, 2003, the Division filed a guardianship complaint in the Family Part, seeking termination of N.F.'s parental rights. At that point the children had been in foster care since September 4, 2002. An amended complaint was filed on September 9, 2004, substituting K.P. for J.B. as the biological father of K.F.

The matter was tried before Judge R. Benjamin Cohen on May 31, 2005 and June 1, 2005. On June 14, 2005, Judge Cohen delivered an oral decision, terminating the parental rights of N.F. as to all three children, and signed an order placing the children in the care of the Division for all purposes, including placement for adoption.

At trial, the Division produced testimony from DYFS worker, Rumana Ahmad, who outlined the long history of the Division's involvement with the family. Dr. Gerard Figurelli, a psychologist, testified on behalf of N.F. Dr. Natalie M. Barone, a psychologist, was called as an expert witness by the Division.

Dr. Figurelli testified that he had performed a psychological evaluation of N.F. and a bonding evaluation of the relationship between N.F. and the three children, after two sessions conducted on January 18, 2005, and March 15, 2005. Dr. Figurelli had also evaluated N.F. on March 7, 2004.

Dr. Figurelli found no evidence or history of drug or alcohol abuse, but stated that she had evidenced "what are referred to as narcissistic traits in the overall organization and functioning of her personality." He explained that this causes her adult relationships to "be somewhat shallow in nature . . . and relatively transitory, not necessarily lasting relationships or relationships that are developed and have a basis for lasting significantly over time." However, Dr. Figurelli testified that there was no evidence of any Axis I psychological or psychiatric problems such as depression, anxiety or psychotic disorders.

In terms of bonding, Dr. Figurelli observed interaction between N.F. and the children, and then interviewed the children individually. He stated that "the children were actively interacting with each other and with their mother, that . . . [N.F.] accurately recognized and identified the needs that the children presented for guidance and direction of their behavior as well as for limit setting, and the children responded to such." Dr. Figurelli concluded that there "was a significantly bonded relationship between [N.F.] and the children."

Dr. Figurelli stated there was a significant sibling attachment among the three children, noting that the Division's permanency plan called for the continued separation of the children because Q.F. was to be adopted by his paternal aunt and uncle, and A.L. and K.F. were to be separately placed for adoption. Dr. Figurelli concluded that if that sibling attachment were to be severed "it would represent a significant disruption in their sense of family."

On cross-examination, when confronted with the fact that N.F. had been convicted of a drug offense and had been incarcerated, Dr. Figurelli stated that N.F. had told him that she had no criminal history of arrests or convictions. When informed that N.F. had been involved in psychotherapy and had been treated with psychotropic medication, Dr. Figurelli stated N.F. had denied any history of psychotherapy or medication. Dr. Figurelli also stated he was unaware that N.F. had any history of violent confrontations. When asked whether these facts would have affected his conclusions, Dr. Figurelli testified he would have made further inquiry into those areas to determine the significance of that additional information.

Dr. Barone testified that she had conducted a psychological evaluation of N.F., as well as a bonding assessment of N.F. and the children on June 21, 2004, and had further evaluated N.F. during a session conducted in April 2005. Dr. Barone stated that

[N.F.] is quite skilled at presenting herself as the victim. During my first evaluation she . . . really did pull me in where I was believing that perhaps this lady really did fall through the cracks of the system and she was deprived of services. It wasn't until I did some research and requested additional documents that I discovered that the reality of the situation was actually just the opposite. [N.F.] was offered numerous types of services over the years. She was disappearing . . . for six months at a time, she wasn't visiting with the children, her visits with the children to date remain inconsistent. She was essentially non-compliant with services, the same services she claimed to never have received.

Also, her presentation during both evaluations was really marked by a refusal to acknowledge any responsibility for the removal of her children. She tends to project blame primarily onto the Division and essentially lacks insight into her own role in her children being placed into the foster care system.

She also contradicted herself constantly throughout the interviews. And as I had already mentioned, she does have a talent for projecting blame and painting herself in the best possible light. It isn't until she's really like placed under scrutiny and the details of the case are closely examined when her deceptiveness become[s] apparent.

Most notably, Dr. Barone felt N.F.'s refusal to engage in treatment was "significant because it speaks to her refusal to improve the circumstances that ultimately led to the removal of her children."

Dr. Barone testified further that the psychological testing of N.F. had "suggested the presence of a delusional disorder involving persecutory beliefs." Dr. Barone expressed concern with N.F.'s ability to parent because "[h]er plans for future care of the children really revolved around a theme of depending on others to care for them[,]" and that "she has a tendency to place her own needs before those of others, even her own children." Dr. Barone concluded that N.F. does not have the capacity "to manage her own life on top of parenting these children 24/7[.]"

In explaining the results of the bonding evaluations, Dr. Barone stated, in pertinent part:

Well, to set the stage, you know, we should mention that [N.F.'s] presentation during both bonding evaluations was quite withdrawn and detached. She very rarely initiated conversation or play[ed] with the children, there was virtually no exchange of affection, and even eye contact was minimal. The children, especially [A.L.], appeared starved for [N.F.'s] attention. [A.L.] was clingy, she was attention-seeking, there was a very desperate quality of [A.L.'s] attempts at contact with her birth mother, almost as if she was anticipating an unpredictable abandonment by [N.F.] And [A.L.] as well as the other two children became discouraged and frustrated by their mother's apathetic disposition.

[Q.F.] was relatively isolated and withdrawn during both sessions. He appeared uncomfortable, reluctant to connect with [N.F.]

[K.F.], during the first session, was very ambivalent in that she appeared interested in her birth mother at some times and disinterested at other times.

The second bonding session was remarkable for the mixed messages that [N.F.] sent to these children. She focused primarily on [K.F.] while practically ignoring [A.L.] and [Q.F.] I mean it was literally painful to watch the disappointment on the faces of these children as [N.F.] kind of disregarded their presence and doted over [K.F.] One can really sense that these children are emotionally drained.

When asked whether the children would suffer harm if N.F.'s parental rights to them were terminated, Dr. Barone stated in relevant part:

I believe the children would suffer short-term harm, but in some respects even that wouldn't be intense because they don't see her regularly. The children's recovery in part depends on how soon the Division finds a home for them. These children want a mommy and they're holding onto this fantasy of reunification because from their perspective [N.F.] is the only hope that they have. But once they find permanency I believe that [N.F.] really will become a distant memory.

On June 14, 2005, Judge Cohen delivered an oral decision and entered an order for guardianship, terminating N.F.'s parental rights to all three children. The judge noted that Q.F. and A.L. "have not been in [N.F.'s] custody and care since November 1997, the last seven and a half years, except for those short few months in 2002 when her father left the country and returned them to her. [K.F.] has not been in [N.F.'s] care since September 4th of 2002, approaching three years[,]" and that N.F. "has visited her children only very sporadically." The judge also found that the Division had offered and provided numerous services to N.F. over the years in an attempt to correct the conditions that had led to their placement, yet N.F. "has utterly failed to cooperate with the many Division services in any meaningful way, failing to complete parenting classes, failing to complete therapy, failing to consistently visit all for this period of many years."

Judge Cohen also stated that N.F. had failed to plan for the permanency needs of the children and "has not demonstrated her fitness even minimally adequately to parent for her children according to the Division's psychologist[,]" and concluded that "the children need permanency and after years in foster care they need it now."

Judge Cohen credited Dr. Barone's findings and testimony, and largely discounted the opinion offered by Dr. Figurelli, noting that Dr. Figurelli had not reviewed Dr. Barone's report, nor conducted a bonding evaluation between the maternal aunt and Q.F. The judge also noted that relevant and significant information had not been disclosed to Dr. Figurelli by N.F. The judge concluded:

The court finds that number one, [N.F.] has demonstrated over a period of many years that she is not able to comply with the above recommendations, that is get a safe stable home, get a job sufficient to adequately support your children and arrange for and plan for alternate day care if you're working or have to be out of the home for any reasons. She's had years to do that and hasn't done any of it. But even so, even if she were to do that, the court does not accept, in fact rejects as unsupported and against the overwhelming weight of the evidence the fact that even if [N.F.] were able to do those things which she hasn't done over the years that she would be able to provide adequate parenting care for the children. To the contrary - - the court notes that due unfortunately to her psychological and cognitive make-up, [N.F.] is not able and will never be able to adequately parent these children even minimally.

The judge then reviewed in detail each criteria set forth in N.J.S.A. 30:4C-15.1a, and concluded that the Division had proven by clear and convincing evidence that the best interests of the children dictated that N.F.'s parental rights be terminated.

On appeal, N.F. 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 PROVEN 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. of Am., 65 N.J. 474, 484 (1974).

Applying these principles, we are satisfied that the evidence overwhelmingly supports the findings and conclusions of Judge Cohen, and we affirm substantially for the reasons articulated in his oral decision delivered on June 14, 2005. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result he reached. Clearly, the evidence supported the conclusion that the health and well-being of the children had been harmed and endangered by their parental relationship with N.F. The record discloses that the Division had provided numerous, reasonable and ample opportunities to N.F. over a period of several years in an attempt to eliminate the harm she had created. However, N.F. failed to avail herself of those opportunities and clearly is either unwilling or unable to eliminate the conditions that have endangered the health and development of these children. Moreover, as properly noted by Judge Cohen, the need of these children for permanency was the paramount consideration.

Finally, the judge's conclusion that the termination of N.F.'s parental rights will not do more harm than good is fully supported by the credible evidence in the record. It is evident and clear that there was no realistic likelihood that N.F. would be capable of properly caring for these children in the future. As far back as April 1997, Dr. Klein found that N.F. was not competent to parent children without the help of a responsible adult. In 1999, Dr. Liccardo found that N.F. had failed to make significant improvements, and it was unlikely that she would improve in the foreseeable future to the point of being able to provide minimally-adequate parenting for the children. In 2003, Dr. Brooke found that N.F. neither had the parenting skills nor the resources to care for the children appropriately. Finally, eight years after N.F.'s first psychological evaluation, Dr. Barone found that continued contact between the children and N.F. would be detrimental to their growth and development. The evidence supporting the judge's decision was both compelling and overwhelming.

 
Affirmed.

R.L. and K.P. defaulted and did not participate in the guardianship trial; their parental rights were also terminated, and they have not appealed.

(continued)

(continued)

22

A-6364-04T4

RECORD IMPOUNDED

April 12, 2006