DIVISION OF YOUTH AND FAMILY SERVICES v. L.A.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0128-07T40128-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

L.A.

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF K.S.A.H.,

A Minor.

______________________________

 

Submitted April 8, 2008 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-113-07.

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

Anne Milgram, Attorney General, attorney for respondent (Andrea Silkowitz, Deputy Attorney General, of counsel; Susan Brown-Peitz, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor K.S.A.H. (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

L.A. appeals from an order entered by the Family Part on June 20, 2007, terminating her parental rights to her minor son, K.S.A.H., and awarding guardianship of the child to the Division of Youth and Family Services (DYFS). We affirm.

K.S.A.H., born on November 8, 2005, is L.A.'s fourth child. At the time of K.S.A.H.'S birth his three siblings, ranging in age from two-and-a-half to eight-and-a-half years old, were in the care of their maternal great-grandmother, having been removed from L.A.'s care on an emergency basis on June 30, 2005. K.S.A.H. was removed from L.A.'s custody and placed in foster care on November 14, 2005. DYFS had explored the possibility of placing K.S.A.H. with his siblings; however, the maternal great-grandmother was caring for seven children and did not wish to take custody of K.S.A.H.

L.A. has a long history of involvement with DYFS, dating back to June 1998. She was unable to maintain stable housing for her three older children, and was compelled to move with them on at least six occasions between March 2002 and June 2005. DYFS provided services to L.A. and her three older children between 2002 and 2005.

During that time L.A. was, by her own admission, involved in chronic alcohol abuse. She was also charged with and convicted of arson, for which she received a three-year probationary term. The circumstances under which her three older children were removed from her care and custody in June 2005 involved a referral to DYFS from the Newark Police Department because L.A.'s two younger children, then four and two years old, were found home alone. The oldest of the three children, who was living with the paternal grandmother at the time, reported to DYFS that L.A. had left all three children home alone on other occasions. DYFS thereupon initiated abuse and neglect proceedings against L.A. on behalf of three older children.

Once the three older children had been placed in the care of their maternal great-grandmother, DYFS initiated reunification efforts by scheduling psychological and drug/alcohol abuse evaluations for L.A. DYFS also referred L.A. to parenting skills classes.

L.A. was diagnosed with alcohol dependence and was referred to an intensive outpatient program at St. Michael's Hospital in Newark. L.A.'s attendance in this program was interrupted due to complications of her pregnancy with K.S.A.H.

A psychological evaluation completed on August 4, 2005, concluded that L.A. had "impaired social competence and symptoms consistent with a major psychological disorder." The evaluator, Dr. Leslie Trott, opined that L.A. was not capable of independently parenting her children and recommended that she undergo a psychiatric evaluation.

Dr. Sonia Oquendo conducted a psychiatric evaluation of L.A. on November 30, 2005. Dr. Oquendo concluded that L.A. had "limited insight into her problems and . . . tends to minimize her alcohol consumption and its impact on her parenting skills and responsibilities." Dr. Oquendo recommended that reunification between L.A. and K.S.A.H. be conditioned upon L.A.'s compliance with all of DYFS's requirements, including treatment for alcohol abuse.

DYFS once again referred L.A. to the alcohol treatment program at St. Michael's Hospital. However, L.A. failed to return to St. Michael's for treatment. L.A. was referred to Final Stop Family Services for individual counseling, but was terminated within two months due to excessive absences and lack of compliance.

L.A. underwent another DYFS-referred psychiatric evaluation with Dr. Alexander Iofin in January 2006. Dr. Iofin opined that L.A. "has a significant amount of problems related to alcohol abuse" and "has a significant amount of maladaptive personality traits, . . . using deception and untruthfulness as the major defense mechanisms, based on review of her psychological profile." Dr. Iofin recommended that, as a prerequisite to reunification with her children, L.A. must have twelve months of documented abstinence from alcohol as well as stable housing and evidence of financial means to support the children and to meet her parental responsibilities.

L.A. underwent an updated psychological evaluation with Dr. Trott in March 2006. While Dr. Trott found L.A. to be somewhat more competent and productive than she had appeared in the first evaluation, the doctor nonetheless opined that L.A.'s "social and emotional functioning reveals that she is exceedingly deceptive and does not confront her own personal weaknesses and difficulties." Dr. Trott concluded: "She does not show evidence of sustaining the insight necessary to personally question her own weaknesses."

L.A. engaged in alcohol treatment at New Directions Behavioral Health Center, commencing on March 13, 2006, upon referral by DYFS. She tested positive for alcohol on May 20 and May 24, 2006. On June 6, 2006, New Directions informed DYFS that L.A. had admitted to continued alcohol use and she was recommended for inpatient treatment at the Straight and Narrow program. Despite a court order to attend Straight and Narrow, L.A. continued at New Directions. By September 2006, L.A.'s attendance at New Directions was sporadic. L.A. acknowledged that she had failed to attend the program, citing her work schedule and other stressors in her life, including court appearances, as the reason.

As of the time of trial, in June 2007, L.A. had been employed as a hair salon receptionist since November 2006; her weekly take-home pay was "about $200." She had been in her own apartment for a short time in 2006 until her rental assistance terminated causing her to move in with a friend. She moved two additional times between January 2007 and the time of trial. At trial she testified that she was renting a bedroom in a friend's home and she had an application pending for a two-bedroom apartment.

L.A. had visitation with K.S.A.H. after his placement in foster care. Initially she had bi-weekly visits at DYFS's office. In March 2007, she commenced weekly visits through the Reunity House program. On occasion, L.A. would visit K.S.A.H. with her three other children, sometimes at Reunity House and sometimes at the home of her great-grandmother.

The Reunity House clinician who supervised L.A.'s visits noted that the family enjoyed one another's company. The clinician further indicated that she would like to continue to work with L.A. to develop structure for the visits with her children and to help her find ways to meet all of her children's needs.

DYFS referred L.A. for another psychological evaluation, with Andrew Brown, Ph.D., on March 26, 2007. Dr. Brown opined that L.A. failed to demonstrate that she is ready to parent K.S.A.H., and noted that L.A. exhibited very poor insight. She evidenced a consistent pattern of "faking good," meaning that she appeared very defensive and in denial, and attempted to minimize her shortcomings and presented an unrealistic portrait of herself.

Dr. Brown concluded that, in light of L.A.'s poor insight, her prognosis for maintaining sobriety was poor. The doctor stated: "The potential for her to relapse is great because . . . she does not seem to have a clear handle on her behaviors, on her self-awareness."

Eric Kirschner, Ph.D., testified on behalf of L.A. Dr. Kirschner had conducted a psychological evaluation of L.A. on April 10, 2007. During the interview, L.A. denied having any psychological problems and stated further, "I don't have a problem with alcohol."

Dr. Kirschner noted that L.A. had "made some strides and some progress," but he expressed concerns regarding her parenting abilities:

[W]e [a]re talking about someone who has a history of utilizing poor judgment. We have someone who has a history of utilizing alcohol as a means of coping. With someone who has a history of using denial as a means of coping as well. Those are all the issues that can potentially interfere with a person's ability to adequately care for their child as far as meeting their needs in terms of protection and safety and nurturing and things of this sort.

Dr. Kirschner opined that L.A. needed to continue in her treatment program, remain alcohol free, and maintain employment and housing stability before beginning reunification efforts with K.S.A.H.

Both Dr. Brown and Dr. Kirschner conducted bonding evaluations of K.S.A.H. with L.A. as well as with the child's foster mother. K.S.A.H. was placed with his current foster mother in June 2006 at the age of seven months. The foster mother expressed the desire to adopt K.S.A.H. and was willing to allow continued contact between K.S.A.H. and his siblings.

Dr. Kirschner's bonding evaluation revealed that K.S.A.H. was not responsive to L.A.'s efforts to engage him in play and to be affectionate with him. The child exhibited no indication of emotional closeness to L.A. and no emotional distress when she left the room.

By contrast, Dr. Kirschner observed a positive emotional bond between K.S.A.H. and his foster mother. K.S.A.H. responded to his foster mother as his "secure base," and was verbal in his interactions with her. Dr. Kirschner found that there was a reciprocity of affection and caring between K.S.A.H. and his foster mother, thus suggesting a healthy and secure bond. Dr. Kirschner concluded, within a reasonable degree of psychological certainty, that severing the bond between K.S.A.H. and his foster mother would likely have a significant adverse impact on K.S.A.H. and result in the child's behavioral and emotional regression.

Dr. Brown's bonding evaluation resulted in similar observations and conclusions, with respect both to L.A. and to the foster mother. He observed L.A. pull K.S.A.H.'s arm inappropriately in an effort to keep him from running away; when K.S.A.H. engaged in play with L.A., he did so without speaking and ignored her repeated requests for hugs and kisses.

Dr. Brown observed K.S.A.H. to be very calm, verbally expressive, smiling and laughing, in the presence of his foster mother; K.S.A.H. cried at his separation from his foster mother. Dr. Brown opined that K.S.A.H. had "an internal working model for his personality development that is intimately tied with the foster parent. So literally his personality is developing in correlation . . . with his caretaker." Dr. Brown also opined that K.S.A.H. would suffer irreparable emotional trauma if he were removed from his foster mother's care; conversely, K.S.A.H. would not suffer psychological harm if L.A.'s parental rights were terminated.

At the conclusion of trial, Judge Glenn A. Grant rendered an opinion from the bench and a written decision. In his decision, Judge Grant thoroughly reviewed the trial evidence and found that DYFS had presented clear and convincing evidence with respect to each of the four statutory standards governing termination of parental rights. N.J.S.A. 30:4C-15.1(a)(1) to (4).

On appeal, L.A. raises the following arguments for our consideration:

POINT I

SUBSTANTIAL CREDIBLE EVIDENCE DID NOT EXIST TO SUPPORT THE COURT'S FINDINGS THAT THE "BEST INTEREST" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE

(A) THE COURT'S FINDINGS THAT DEFENDANT WAS UNABLE TO OR UNWILLING TO ELIMINATE THE HARM FACING THE CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS

(B) DYFS FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT UNILATERALLY CEASED ALL EFFORTS TO PROVIDE SERVICES TO THE DEFENDANT WITHOUT JUDICIAL APPROVAL OR ALTERNATIVES TO TERMINATION

(C) DEFENDANT IS ENTITLED TO A REVERSAL BECAUSE THE EVIDENCE WHICH WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD

Having thoroughly reviewed the record, we are convinced that L.A.'s arguments are without merit. Therefore, we affirm the termination of L.A.'s parental rights to K.S.A.H. substantially for the reasons stated by Judge Grant in his decision of June 18, 2007. R. 2:11-3(e)(1)(A). We add the following comments.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However,

[p]arental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard.

[Id. at 347.]

That standard requires that an individual's parental rights not be terminated unless DYFS establishes by clear and convincing evidence each of the following four statutory criteria:

(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 parent rights will not do

more harm than good.

[N.J.S.A. 30:4C-15.1(a)(1) to (4).]

These criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

In this appeal, L.A. argues that the judge erred by finding that DYFS met its evidentiary burden under the best interests standard for the termination of her parental rights to K.S.A.H. In weighing those contentions, we note that the scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

A trial court's findings of fact "'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)(quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because Family Part judges have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Judge Grant found that DYFS had proven by clear and convincing evidence that K.S.A.H.'s "safety, health or development has been or will continue to be endangered by the parental relationship" with L.A. N.J.S.A. 30:4C-15.1(a)(1). The inquiry under this first statutory standard is whether the State has "demonstrate[d] harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. The court must analyze "the ability of the parent[] to give [her] child[] care[.]" N.J. Div of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 607 (1986).

The record establishes L.A.'s long history of alcohol abuse, lack of appropriate housing and employment, as well as psychological issues that have placed K.S.A.H. at risk since the time of his birth. L.A. argues that she is being punished for her prior shortcomings. We agree with the trial judge's conclusion that this argument is without merit. As the trial judge found:

The conduct of [L.A.] led to her older children being in placement and two months later the removal of her youngest child. The Court finds the State acted appropriately to ensure the safety and well being of the children. It is well recognized that actual harm against one child is evidentiary with respect to the other children. In this case, [L.A.] has not only harmed her three oldest children but [K.S.A.H.] as well.

Judge Grant additionally found that DYFS had established by clear and convincing evidence that L.A. 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." N.J.S.A. 30:4C-15.1 (a)(2). The record supports this finding.

In his decision, the trial judge noted that L.A. "may have successfully addressed her alcohol issues." However, she "has not answered questions with respect to her psychological functioning." The trial judge "adopt[ed] and accept[ed] the almost uniform opinion of the mental health experts that [L.A.] suffers from a personality disorder." The Court found L.A.'s failure to engage consistently in therapeutic treatment to be of significance as well.

The trial judge's finding that K.S.A.H. "is emotionally and psychologically connected to his foster parent" is well supported in the record, through the testimony of Drs. Brown and Kirschner. The Court noted that Dr. Kirschner, although called as a defense witness, nonetheless opined to a reasonable degree of psychological certainty that the child will suffer irreparable harm if he is removed from his foster family. Dr. Brown testified to L.A.'s lack of insight and personality disorders, particularly her use of denial as a defense mechanism, all of which negatively impact upon her ability to parent.

Regarding L.A.'s failure to attend certain therapy sessions, the trial judge found her explanations to be not credible. The judge found L.A. "inconsistent in her testimony as to whether work or obligations to attend court led her to stop attending same. While the Court did not find her testimony to be truthful or credible, the significant fact is she has failed to complete therapy." In sum, the trial judge found: "Dr. Kirschner and Dr. Brown both agree that permanent and enduring harm will be suffered by [K.S.A.H.] if removed. There is no credible evidence which refutes these conclusions. He is bonded to the foster mother and harm will occur if removed."

Judge Grant also found that the evidence clearly and convincingly established DYFS's reasonable efforts to assist L.A. in addressing the circumstances that led to the placement of K.S.A.H. in foster care. N.J.S.A. 30:4C-15.1(a)(3). In his decision, the judge enumerated the services provided to L.A. by DYFS:

The evidence reveals that even prior to [K.S.A.H.]'s birth and his involvement with this litigation, DYFS has consistently made reasonable efforts to provide services to the defendant mother in an attempt to reunite [K.S.A.H.] with his parents. Prior to the Division filing its Amended Verified Complaint in November 2005, the Agency was working with [L.A.] in order to be reunited with her three oldest children.

. . . .

In addition [L.A.] was referred to Wise Women Parenting Classes on September 27, 2005. The evidence reveals she did not attend any of the classes . . . after the birth of her son. Shortly after [K.S.A.H.]'s birth, she was offered bi-weekly visitation.

The Division wrote a letter in January 2006 to Essex County Welfare on [L.A.]'s behalf indicating the goal of reunification and her need for rental assistance. The defendant mother was offered multiple mental health evaluations during the pendency of the . . . action.

. . . .

The Division's efforts to assist [L.A.] also included referrals for counseling and therapeutic interventions. [L.A.] attempts to explain her reason for not completing therapy because of her loss of Medicaid or obligation to attend court. Such testimony is simply not credible or believable. It is recognized that [L.A.] was required to attend court only once every three or four months. She acknowledged that no one informed her that she was required to cease therapy because she lost Medicaid. In fact, [DYFS] according to [L.A.'s] own testimony, was willing to work with her to continue to provide services.

The Division also supplied visitation, assessment of relatives, transportation assistance. Counsel for defendant mother argues that visitation should have been more than bi-weekly in order for a bond to be developed with her son. Counsel also argues because the State did not set up individual therapy, the State failed to meet this prong. This Court disagrees. Given the lack of compliance by [L.A.] with respect to counseling and the recommended substance abuse treatment, the delay in expanding visitation was solely due to her behavior. The examination of the State's efforts in its entirety clearly show[s] the overwhelming failure to access services was due to defendant's part.

The trial judge also rejected L.A.'s argument that DYFS should have provided her with expanded overnight visitation with K.S.A.H. in order to have a gradual transition towards reunification. The judge found this plan inappropriate for several reasons including: (1) the unanimous expert testimony that K.S.A.H. is bonded to his current foster parent and would suffer irreparable harm if removed; (2) the prognosis for L.A.'s successful reunification was "decidedly limited"; (3) "assuming placement of [K.S.A.H.] with his mother is possible it is unlikely defendant mother would be able to effectively address the multiple stressors placed on her family"; and (4) L.A. still has her "own treatment needs, her need for employment and housing, [and] her need to address her psychological issues[.]"

Judge Grant also found that DYFS had established by clear and convincing evidence that the termination of L.A.'s parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1 (a)(4). The judge noted that K.S.A.H. has been in his current placement for over a year and has developed a strong bond with his foster mother. By comparison, his bond with L.A. is "not as strong[.]" The judge found:

Both experts agree any attempt to remove the child from his caregiver would cause irreparable harm. Dr. Kirschner testified that he did not believe [L.A.] had the ability to mitigate the harm to [K.S.A.H.] if removed from his foster parent. Dr. Brown described how separating [K.S.A.H.] from his foster parent would render him susceptible to anxiety and adjustment disorders. Both experts noted the potential for regression and the potential negative impact on his future development.

The Court adopts and accepts the findings of both experts with respect to the bond between [K.S.A.H.] and the foster parent. Evidence of a lack of a mutual bond [with L.A.] was observed by both experts. Dr. Brown's observation of how [L.A.] asked the child to kiss her fourteen (14) times before he finally did so. The child was described as drifting in and out of states of stress. His attempts to leave the room while in the evaluation with his mother are not indicative of mutual affection or evidence of a supportive relationship.

The Court is persuaded by the experts' opinions that to place the child with [L.A.] would cause permanent and enduring harm. While the biological mother may wish for reunification, all of the experts found it would not be in [K.S.A.H.]'s best interest to be reunited with his mother.

[L.A.] also appears to be not fit to parent her child and the foster parent has demonstrated the ability to care for his needs. First, as previously noted, this Court has accepted the findings of all of the experts . . . that [L.A.] has personality disorders which would put [K.S.A.H.] at risk. The Court adopts and accepts the findings of these experts. That is, [L.A.]'s lack of insight and deceptiveness are both demonstrative personality disorders which render her unable to parent.

Second, [L.A.]'s lack of a support system, including housing and employment stability, are further evidence that she does not have the ability to meet the needs of [the child]. [K.S.A.H.] has been in this safe and stable home for over a year. He has become a member of the foster family. Here, the bond was evidenced by both experts who conducted evaluations and the bond continues to grow every day.

. . . .

This Court concludes, therefore, that no harm would befall [K.S.A.H.] from the termination of his relationship with either of his parents. For all of the reasons previously set forth, this Court is persuaded by both experts that removing the child from his foster care and placing him with [L.A.] would cause significant harm to [K.S.A.H.]

We are satisfied that the record fully supports the judge's findings. Although the court recognized the possibility that L.A. "may, one day, rise to the level of stability that would serve the child's interest in the future[,]" nonetheless the court properly concluded that K.S.A.H. "needs a parent now. Time for him is a precious commodity and is of the essence." This comports with our Supreme Court's view of this issue. "Recognizing the natural tendency to want to continue working with parents to restore the family unit, we have cautioned that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357. Where, as here, "it is shown that the bond with [the] foster parent[] is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1(a)(4) that termination of parental rights will not do more harm than good to the child." Id. at 363.

Based on the foregoing, we conclude the trial judge's decision terminating L.A.'s parental rights to K.S.A.H. is firmly "supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 412.

Affirmed.

 

That order also terminated the parental rights of K.S.A.H.'s father, T.H., who has not appealed.

L.A. does not challenge the trial judge's findings on the first statutory standard. However, we discuss those findings because they bear upon the judge's findings with respect to the second standard.

(continued)

(continued)

21

A-0128-07T4

RECORD IMPOUNDED

June 13, 2008