NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.G and M.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3551-07T43551-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.G.,

Defendant-Appellant,

and

M.S.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF

L.S. and D.G.,

Minors.

______________________________________________

 

Submitted October 16, 2008 - Decided

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-185-07.

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

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors L.S. and D.G. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, we consider defendant M.G.'s contention that the trial judge erred in terminating her parental rights to her two children -- L.S., a daughter, born on June 19, 2002, and D.G., a son, born on January 22, 2006. The judge found that plaintiff Division of Youth and Family Services met its burden of proof by clear and convincing evidence on all four prongs set forth in N.J.S.A. 30:4C-15.1. We defer to the judge's findings because they are supported by credible evidence and, therefore, affirm.

The record reveals, and the trial judge found, that the Division first became involved with defendant and her children in early 2006, when a daycare facility reported to the Division that L.S. had a recurring problem with head lice and had been playing with dolls in a sexualized manner. The daycare center suggested that defendant had been overwhelmed following the birth of her second child.

The Division promptly investigated, and determined that defendant provided a safe and sufficient home, that there were no marks or bruises on either child, and that the children appeared clean, in good health, and appropriately dressed. Defendant complied with the Division's requests for urine screens, which proved negative for any substance abuse. She also complied with the Division's request that she take her daughter to the doctor regarding the lice problem. Having taken those steps, the Division closed its case.

Soon thereafter, however, defendant was hospitalized for five days for postpartum depression. She acknowledged having thoughts of hurting herself. In addition, on March 22, 2006, the Division received a referral from local police, who had responded to a call from defendant's maternal grandmother that defendant was threatening to hurt herself and her children. The police forcibly entered defendant's home because she did not voluntarily permit their entry, and found defendant feeding her son, while her daughter slept. Neither child nor defendant was injured. Defendant agreed to go to a hospital by ambulance for treatment, and there admitted having made statements about wanting to hurt herself and her children. Defendant was admitted and then referred to Mt. Carmel Guild for treatment, where she remained hospitalized for five days. She was treated with antipsychotic and antidepressant medication.

On April 14, 2006, defendant was admitted to Hackensack University Medical Center's psychiatric unit for suicidal ideation and auditory hallucinations. She was released that day, but received a full psychiatric evaluation five days later at Mt. Carmel Guild. At that time, Dr. Angel Hernandez diagnosed defendant with major depressive disorder, single episode, with psychotic features and postpartum onset. Dr. Hernandez noted defendant's cognitive deficits but ruled out psychotic disorders; he strongly encouraged defendant to enroll in the partial hospitalization plan at Mt. Carmel Guild. Though reluctant, defendant agreed and enrolled on April 20, 2006. This program required defendant's participation five days per week; defendant continued to take medications prescribed for her condition.

Although defendant claimed during her participation in this program that she did not remember making threats to herself or her children, she agreed, on April 24, 2006, with the Division's request for a stipulation that she not see her children without supervision. Despite that stipulation, the Division received a telephone call from defendant's maternal aunt, the caretaker of D.G., that she allowed defendant to take her son without supervision and that they had not returned. Defendant's maternal grandmother, who was the caretaker of L.S., had also permitted defendant, without supervision, to bring her daughter to daycare. These referrals prompted the Division's emergency removal of the children.

An action was commenced on April 26, 2006. At that time, a Family Part judge transferred legal and physical custody of the children to the Division, and provided defendant with liberal supervised visitation. The Division placed the children with defendant's maternal cousin, where they have since resided. Testimony from a Division representative revealed that defendant initially visited the children every day, but visitation later became sporadic, even though the Division provided defendant with a bus pass and a visitation schedule.

The Division also engaged a service to clean defendant's home, but had difficulties contacting defendant to set up a schedule. In addition, the Division obtained little cooperation from defendant in attempting to assist her acquisition of welfare benefits. Defendant did, however, express an interest in attending parenting classes. She was referred to the Puerto Rican Family Institute's Rainbow Program for parenting skills training, which she completed in June 2006.

On June 20, 2006, the Division contacted Mt. Carmel Guild to discuss defendant's employability. Defendant's therapist indicated that employment was not then an option, because defendant was disconnected and would be unable to function in a work setting. The therapist also indicated that defendant did not seem to be absorbing anything from the program, and that the team at Mt. Carmel Guild was not certain whether this was a reflection of her cognitive deficits or her extreme denial.

As a result, the Division obtained a second psychological evaluation, which Dr. Manuel Iser conducted on June 30, 2006. Dr. Iser conducted a clinical interview, and administrated intelligence and mental status tests; he also reviewed the records maintained by the Division and by Mt. Carmel Guild. According to Dr. Iser, defendant scored extremely low scores in verbal and non-verbal areas, demonstrating the skill levels of a seven-year old and five-year old, respectively. He found defendant had poor insight, judgment and knowledge for her age and education. With regard to her suicidal tendencies, Dr. Iser concluded that defendant should have a close follow-up and that hospitalization be considered. He also recommended that defendant remain with the Mt. Carmel Guild program, continue to have her medications (Zoloft and Risperdal) monitored and adjusted, and refrain from employment, and concluded that the children should remain in the custody of family members.

In mid-July, Mt. Carmel Guild reported to the Division that defendant was not improving. Because the program was designed for "higher-functioning" patients, Mt. Carmel Guild concluded that defendant was "unable to attend to the content of the groups and session," as she became frustrated and confused by the fact that she could not "go to work [to] support herself and her children." It was suggested that defendant be placed in a program more suitable for her needs; two such programs were suggested.

Dr. Ernest Perdomo conducted a psychological evaluation on March 2, 2007. He diagnosed a "recurrent major depression, moderate, without psychotic features to rule out schizoaffective disorder depressed type." He found that defendant functioned within the mental deficiency range, but that her true ability was probably nearer the borderline range. He also opined that defendant was irresponsible, narcissistic and self-involved. Dr. Perdomo suggested that defendant's

ability to provide effective parenting to her children appears to be limited. She should continue supervised visitation of her children and should be referred to the Division of Vocational Services for proper training. She would also need ongoing psychiatric follow-up as well as long-term individual psychotherapy. . . . The Division should proceed cautiously in unifying her with children due to her present mental deficiencies and her depression.

Dr. Perdomo testified at trial that "due to the chronicity of . . . the psychiatric problem . . . [defendant] will always have some risk in raising her children," and warned that if defendant did not follow treatment and if she ceased taking her medication, she may again become psychotic. His prognosis was "guarded," suggesting continued treatment and vocational rehabilitation.

Dr. Alvaro Gutierrez conducted a psychological evaluation on March 14, 2007. He found that defendant suffered from major depressive disorder, with psychotic features, and that defendant did not seem to have insight into her problems or the seriousness of her threats to hurt herself and her family. He also observed that defendant was disorganized, evasive and showed signs of paranoia. He opined that defendant was not capable of taking care of her children at the time he examined her.

The Division filed the complaint for the termination of parental rights in this action on June 14, 2007. A trial was conducted by Judge Mark J. Nelson on January 22 and 24, 2008. At trial, the Division presented testimony of its representative, Adrianna Vaca, and Dr. Perdomo. Defendant did not testify, or call witnesses, but she was permitted to make a statement.

Together with the evidence we briefly outlined above, the judge heard testimony that, on July 10, 2007, defendant had stopped participating in the Mt. Carmel Guild program, claiming she could no longer attend as she had to work to support her family. There was also evidence that defendant had stopped taking her medications and that she was uncooperative with Division attempts to help her obtain welfare and Medicaid assistance. It was also demonstrated that the Division provided referrals for defendant's attendance in other mental health programs, but she never enrolled. Soon before the trial in this action, the Division tried to assist defendant in obtaining treatment in Spanish-speaking programs; defendant indicated that she would choose a program and enroll, but never did.

Judge Nelson rendered a written decision, which set forth his findings of fact and conclusions of law, and entered a judgment terminating defendant's parental rights to the two children. Defendant appealed, and presented the following arguments for our consideration:

I. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE STATUTORY REQUIRE-MENTS OF N.J.S.A. 30:4C- 15 AND 30:4C-15.1.

A. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHIL-DREN'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATION-SHIP UNDER FACTOR NUMBER 1.

B. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT WITH RELA-TIVES AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF HER PARENTAL RIGHTS.

C. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF THE APPELLANT'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER FACTOR NUMBER 4.

We find no merit in these arguments.

In reaching his decision, Judge Nelson correctly applied N.J.S.A. 30:4C-15.1(a), which mandates that, in order to obtain the termination of parental rights, the Division is required to prove, by clear and convincing evidence, 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 . . .;

(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.

See also N.J. Div. of Youth & Family Serv. v. A.W., 103 N.J. 591, 604-05 (1986).

The applicable standard of appellate review requires that we defer to a trial judge's factual findings when they are based on credible evidence in the record unless we are convinced those findings 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); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). After careful review, we conclude that the record contains clear and convincing evidence to support Judge Nelson's findings. We also conclude that the judge carefully and thoughtfully applied the correct legal standards to the facts he found in ultimately concluding that termination was required.

The judge explained why he had concluded that the first prong of the statutory test was met. The judge indicated he relied upon Dr. Perdomo's expert testimony and the circumstances we have outlined in concluding that defendant was and remains in need of treatment, and that, notwithstanding that need, she "ceased her treatment at Mount Carmel Guild on her own and ceased taking medication for her mental health issues." The judge properly concluded from these circumstances, as well as others that we need not recount here, that defendant had placed the children at risk at the time they were removed in April 2006 and that they would remain at risk if placed in defendant's care "as evidenced by [defendant's] lack of insight into her mental health issues."

Consideration of the second prong in this case initially requires recognition of the fact that the four prongs are not independent of each other, but that they are "interrelated and overlapping [and] designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Serv. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Here, as revealed by the judge's findings regarding the first prong, it was demonstrated that the children were placed at risk as late as April 2006 and that they remained at risk at the time of trial because defendant had, in the judge's words, "refused to acknowledge her mental illness and either has refused or has an inability to complete the required treatment for her illness." The judge elaborated:

Particularly troubling . . . is [defen-dant's] lack of insight into her problems. Dr. Perdomo opined and the [c]ourt accepts his opinion that [defendant] is suffering from recurrent major depression but that she is not psychotic. The doctor further opined that a person with recurrent major de-pression should have insight into their problems of depression whereas a psychotic person (which [defendant] is not) may not be expected to have such insight. It is [defendant's] lack of insight and acceptance of her mental illness problems that further causes concern for the [c]ourt in regard to her ability to provide a safe and stable home for the children in the future. The [c]ourt therefore accepts Dr. Perdomo's opinion that [defendant] cannot provide a safe and stable home now or in the near future for the children . . . .

We lastly find no merit in defendant's arguments regarding the fourth prong. That prong requires a determination of whether "after consideration and balancing the two relationships, the child will suffer greater harm from the termination of ties with the natural parents than from the paramount disruption of his relationship with his foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). The judge concluded that the evidence clearly and convincingly weighed in favor of termination. He found illuminating the following circumstance:

[Defendant] is simply unable to adequately care for her children and to provide them with a safe and stable home now or in the future. While Dr. Perdomo did note that there was a relationship between [defendant] and her children, his observations did give rise to some concerns. Dr. Perdomo observed and opined that [defendant] was passive in regard to her relationship with the children. She spent much of the time during the bonding evaluation arguing with the examiner (Dr. Perdomo) that she could take care of the children, the children were crying during the examination and even after the doctor asked [defendant] to please interact and/or play with the children, she continued to argue with the examiner. This is all evidence that while [defendant] may have a very good relationship with her children, that does not necessarily lead to the conclusion that termination of parental rights will do more harm than good in this matter. Due to her mental illness, which of course is no fault of her own, [defendant] seems to concentrate on her protestations of innocence and the denial of her illness. She does not, and apparently, does not have the ability to put the best interests of the children before herself and her denial.

For these and the other reasons outlined in the judge's thorough opinion, he concluded that the children were entitled to a permanent situation that was simply not available due to defendant's inability or unwillingness to cope with her own problems.

In reviewing this matter, we are required to defer to the judge's fact findings so long as they are supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Serv. v. E.P., 196 N.J. 88, 104 (2008); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Having carefully reviewed the record in this most unfortunate case, we can discern no sound reason for disturbing the judge's findings.

Affirmed.

The Division's complaint alleged that M.S. is the father of L.S., but that he could not be located through reasonable efforts. The Division's complaint named M.S. as a defendant, but the trial judge recognized that he was not served with process and did not enter judgment against him. Another man fathered D.G., but his identity was not set forth in the child's birth certificate, was not disclosed by defendant M.G., and is not otherwise known. As a result, the judgment under review terminated only defendant M.G.'s parental rights to her two children.

A later hearing resulted in a finding that the children were abused or neglected because defendant had unsupervised contact with them.

At the time of trial, defendant was thirty years old; she had completed the tenth grade in El Salvador before immigrating to the United States.

We find insufficient merit in defendant's argument regarding the third prong to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

(continued)

(continued)

15

A-3551-07T4

RECORD IMPOUNDED

October 30, 2008