DIVISION OF YOUTH AND FAMILY SERVICES v. C.G.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6549-06T46549-06T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

C.G.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF J.J.,Jr., M.J., AND M.E.J.,

Minors.

___________________________________

 

Submitted April 15, 2008 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-40-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Deputy Attorney General, of counsel; Mara Spiegeland, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor children (Lisa C. Castaneda, Assistant Deputy Public Defender, on the brief).

PER CURIAM

C.G. appeals from an order entered by the Family Part on June 29, 2007, which terminated her parental rights to her three children: J.J., Jr., born June 30, 2000; M.J., born July 17, 2001; and M.E.J., born May 1, 2002. The June 29, 2007 order also terminated the parental rights of J.J., the biological father of M.J. That order awarded guardianship of the children to plaintiff, the Division of Youth and Family Services (DYFS). We affirm.

On April 24, 2006, DYFS filed a complaint seeking termination of C.G.'s and J.J.'s parental rights. The trial on DYFS's complaint commenced on April 17, 2007, and continued on various dates to June 18, 2007. On June 29, 2007, Judge Darrell M. Fineman rendered a decision finding that DYFS had established by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1(a), thereby warranting termination of both parties' parental rights.

On appeal, C.G. raises the following arguments:

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO CLEARLY AND CONVINCINGLY PROVE THE SECOND, THIRD AND FOURTH PRONGS OF THE BEST INTERESTS TEST

(A) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION PROVED "PARENTAL UNFITNESS" UNDER N.J.S.A. 30:4C-15.1(A) CRITERIA

(B) THE TRIAL COURT ERRED IN FINDING THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE REUNIFICATION SERVICES TO THE DEFENDANT UNDER N.J.S.A. 30:4C-15.1(A) CRITERIA

(C) THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" DETERMINATION INSTEAD OF THE STATUTORILY AUTHORIZED BEST INTEREST TEST IN FINDING THAT TERMINATION OF DEFENDANT'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD

Having thoroughly reviewed the record, we are convinced that C.G.'s arguments are without merit. Therefore, we affirm the termination of C.G.'s parental rights to J.J., Jr., M.J. and M.E.J. substantially for the reasons stated by Judge Fineman in his written opinion. R. 2:11-3(e)(1)(A). We add the following comments.

I.

DYFS has been involved with C.G. and J.J. in connection with these three children since July 1, 2000, the day after J.J., Jr.'s birth. On that date, DYFS received a referral stating that both C.G. and J.J., Jr. had tested positive for cocaine at the infant's birth; in addition, C.G. had had little pre-natal care. J.J., Jr. was temporarily placed with a maternal aunt, but was returned to C.G. and J.J. two months later.

On March 22, 2002, DYFS received another referral, alleging that the police had raided the residence of C.G. and J.J. looking for illegal drugs. J.J. was arrested on that date, and C.G. was referred for substance abuse treatment as the result of a positive urine screen.

On May 1, 2002, J.J. made a referral to DYFS stating that C.G. had prematurely given birth to M.E.J. Although the infant did not test positive for cocaine at birth, C.G. did test positive for cocaine. M.E.J. weighed two pounds two ounces at birth and was placed in intensive care. There was no record of C.G. having had pre-natal care with M.E.J.

On July 21, 2002, DYFS received a referral alleging a domestic violence incident between C.G. and J.J. At that time, J.J. obtained a restraining order against C.G. and she was removed from the home. DYFS had reason to believe that J.J. was allowing C.G. to have contact with the children despite her continued drug use and alcohol consumption and her noncompliance with treatment. DYFS was further concerned that the children were witnesses to ongoing domestic violence between C.G. and J.J. and that the children lacked supervision.

DYFS filed an order to show cause and complaint for custody on July 29, 2002, at which time the children were removed from C.G. and J.J. and placed in foster care. The children were returned to J.J.'s care in March 2003, with the restriction that C.G. was not to reside in the same home. J.J. continued to allow C.G. in the residence, and episodes of domestic violence occurred periodically.

On September 28, 2004, DYFS again obtained custody of the children when both C.G. and J.J. tested positive for marijuana during a court hearing in the abuse and neglect phase of this matter. At that time, neither C.G. nor J.J. had been complying with court-ordered services.

C.G. and J.J. were referred for psychological evaluations, parenting assessments, psychiatric evaluations, substance abuse evaluations, random urine screens, individual counseling, and parenting skills classes. C.G. continued to test positive for cocaine and/or alcohol despite referrals for treatment.

C.G. underwent a psychological evaluation with Jessica Smith, Psy. D., at the Child and Family Assessment Clinic at Rowan University. The evaluation started in December 2004 and was completed in March 2005; the delay in completing the assessment was caused by C.G. missing several appointments. During that evaluation, C.G. denied using cocaine since J.J., Jr.'s birth, even though she had tested positive for cocaine at M.E.J.'s birth, two years later. C.G. also told Dr. Smith that she realized that she was not able to care for the children at that time because of her living arrangements, but that she planned to obtain an apartment and then seek custody of her daughter, M.E.J. Dr. Smith concluded that C.G. demonstrated "poor planning and irresponsibility with varied tasks."

DYFS offered numerous services to J.J. in hopes of reuniting the children with him. However, in January 2006, J.J. became non-compliant with services and stopped attending court proceedings. As a result of J.J.'s demonstrated lack of commitment to reunification, the trial court converted the January 24, 2006 compliance review hearing into a permanency hearing and ordered DYFS to file a guardianship complaint for the three children.

DYFS considered relative resources as potential caretakers for the three children, namely two maternal aunts. One of the aunts told DYFS she did not want the children because she was afraid of J.J. The other aunt, T.R., was initially ruled out because of her criminal history and inadequate housing. As of the time of trial, J.J., Jr. and M.J were in "mentor" homes, because of their special needs. M.E.J. was in the custody of foster parents who agreed to adopt her.

Dr. Linda Jeffrey conducted a psychological evaluation of C.G. on August 16, 2006. Dr. Jeffrey testified that C.G. had a history of unemployment, long-standing cocaine abuse, and domestic violence with J.J. C.G. also reported to Dr. Jeffrey that she suffers from depression on a daily basis. Psychological testing revealed that C.G. had "narcissistic tendencies" that indicated she would "be unlikely to admit to even minor problems." Dr. Jeffrey believed this would "tremendously" impact C.G.'s ability to engage meaningfully in counseling.

Dr. Jeffrey diagnosed C.G. with personality disorder not otherwise specified, meaning that she had a "mixed personality disorder with narcissistic histrionic and paranoid features." C.G. was also found to have a "serious impairment" in basic functioning.

Dr. Jeffrey concluded that C.G. "would not be able to correct the mental health . . . concerns in the next six months[.]" The doctor opined that C.G. would not be able to provide a safe or stable home for the children, and recommended against reunification because the children would be at risk of harm.

Dr. Jeffrey also conducted a bonding evaluation with the children and C.G. She observed that both M.E.J. and M.J. had superficial, insecure attachments to C.G. She observed J.J, Jr. to display "more independence and less emotional neediness" toward either parent. This led Dr. Jeffrey to conclude that termination would not cause serious enduring harm to the children. The doctor noted that "the continuation of the insecure attachment can, in and of itself, cause harm."

Dr. Jeffrey referenced psychological evaluations of the children performed, pursuant to court order, by Dr. Pamela Kane. Dr. Kane reported that the children had witnessed domestic violence between C.G. and J.J. as a result of which they "were exhibiting psychological systems" which gave Dr. Kane "grave concerns[.]"

Dr. David F. Bogacki conducted a psychological and bonding evaluation of C.G. on December 8, 2006, and testified on her behalf. Dr. Bogacki testified that he found no mental disease or defect that would "impair C.G.'s ability to promote interpersonal skills in the children"; or to "teach them basic life skills"; or to be able to "provide emotional support[.]" However, Dr. Bogacki was concerned with C.G.'s lack of housing and opined that she would need to continue attending Alcoholics Anonymous and Narcotics Anonymous.

Dr. Bogacki testified that the children were "securely attached" to C.G. He concluded that severing that attachment would cause the children emotional harm.

As of the time of trial, C.G. had just found employment as an aide in a nursing home. She had been living in a motel since September 2006, but she anticipated moving into a two-bedroom apartment at some point. She also had an outstanding criminal charge for aggravated assault of a police officer.

In his decision, Judge Fineman thoroughly reviewed the trial evidence and concluded that DYFS had presented clear and convincing evidence with respect to each of the four statutory standards governing termination of parental rights. Those standards are enumerated in N.J.S.A. 30:4C-15.1(a)(1) to (4) as follows:

(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.

Regarding the first standard, the judge noted that C.G. and her family had a "long history" with DYFS, dating back to 1994. He found that C.G. had admitted to using controlled dangerous substances, including while she was pregnant with some of her children; J.J., Jr. tested positive for cocaine at birth, and M.E.J. was born following a relapse.

Also, C.G. and J.J. had a long history of domestic violence. Many of these incidents occurred in the children's presence. Dr. Kane's evaluation of the children raised "grave concerns" about the psychological impact on them as a result of witnessing this domestic violence.

The judge found Dr. Bogacki's testimony to be "conclusionary concerning C.G.'s ability to parent." The judge rejected as "without support" Dr. Bogacki's conclusion that C.G. is capable of parenting the children, in view of her "overwhelming deficiencies, inability to deal with her personality issues, and lack of a plan[.]" The judge observed that Dr. Bogacki "seems to ignore the terrible circumstances the children have gone through." In addition, Dr. Bogacki was unaware of several facts, such as C.G.'s arrest for assault and her continued use of cocaine after 2000, leading the judge to conclude: "This makes his whole opinion suspect since he did not have access to all of the facts." On the other hand, the judge found Dr. Jeffrey's evaluation to be "more in line the evidence."

The judge noted that, in Dr. Smith's March 23, 2005 parenting evaluation, C.G. had acknowledged her current inability to care for the children; and her proposed plan was to take custody of M.E.J. and her older daughters with J.J. taking custody of M.J. and J.J., Jr. This led Dr. Smith to conclude that C.G.'s "solutions are clearly focused on her own desires rather than keeping with the best interest of the children."

The judge further noted that C.G. has exposed the children to "numerous drug involvements and has not followed [the] court order to have a supervisor around the children during her visits." When the children were returned to J.J. in March 2003, despite a restraining order against C.G., J.J. allowed her to return to the home and have unsupervised contact with the children.

The judge took notice of Dr. Kane's evaluation of the children which reflected that J.J., Jr. had been in six different placements, and M.J. had been in four such placements. Dr. Kane concluded that C.G. "has not been a stable figure" in the children's lives.

Regarding the second statutory factor, the judge found that C.G. "only complied minimally" with the multiple services she was offered by DYFS. After four years of litigation, C.G. continued living in a motel and had no plan for taking care and custody of her children. She had started a new job three days prior to her trial testimony.

The judge noted Dr. Jeffrey's opinion, based on testing, that the children "were likely to be placed at a high risk of harm if they were to be placed with [C.G.]" The judge additionally noted that Dr. Bogacki's testimony was "equivocal about whether the children could be placed with C.G. at this time."

The judge also found C.G.'s testimony "incredible[,]" noting that, although C.G. desired reunification with her children, "her understanding of the problems, lack of ability to articulate her substance abuse problems . . . and her failure to take any reasonable steps to plan for the care of the children, led the Court to clearly and convincingly believe that she is unwilling and unable to eliminate the harm facing the children and to provide a safe and stable home for her children." Because of C.G.'s "propensity for self-destruction[,]" the court "clearly and convincingly" found that C.G. "is unwilling and unable to eliminate the harm facing the children[.]"

Regarding the third statutory factor, the judge found that DYFS had provided C.G. with "six substance abuse evaluations, psychological evaluations, a psychiatric evaluation, three in-patient sessions at Maryville for treatment, anger management classes, random urine screens, and supervised visitation with the children." Despite these efforts, C.G. had failed to address her needs for treatment, housing and employment. On this record, the court found by clear and convincing evidence that "there are no other alternatives but terminating [C.G.'s] parental rights."

Regarding the fourth standard, the judge found that the children, who have been in placement on and off for almost four years, are "insecurely attached to [C.G.] and would be harmed if they were placed in the custody of C.G." The judge found further that there would be "no way for [the] children to have a chance at permanency without terminating C.G.'s rights so that the children are free to be adopted." In support of these findings, the judge cited Dr. Jeffrey's testimony which he found to be "based on cogent reasons supported by the facts." The judge rejected Dr. Bogacki's testimony because "he was not aware of all the facts in this case."

The judge found that the children had "no meaningful bond [with C.G.] at this time because of the long periods of placement." He concluded: "The children must find permanency. It is better for the children to find permanency than to live in limbo forever. There does [not] appear to be any possibility of a permanent placement for these children without termination."

II.

C.G. argues that the judge erred by finding that DYFS met its evidentiary burden under the best interest standard for the termination of her parental rights to the children. 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.

C.G. contends that, if she has "made mistakes or demonstrated bad error in judgment, she has never been accused of not having interest in her children." Therefore, she contends that DYFS failed to present clear and convincing proofs concerning "the second prong of the best interests test." N.J.S.A. 30:4C-15.1(a)(2). C.G. asserts that the inquiry under this "prong" is to determine whether "it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care." N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 607 (1986).

The record reveals that, in the four years between the removal of the children from C.G.'s custody and her trial, she made no progress in acquiring gainful employment or suitable housing; nor did she attend court-ordered treatment for her drug use. DYFS provided C.G. with numerous supportive services. However, C.G. was chronically non-compliant with those services.

This situation is comparable to that in N.J. Div of Youth & Fam. Servs. v. C.S., 367 N.J. Super. 76, 119 (App. Div.), certif. denied, 180 N.J. 456 (2004), where we stated:

[T]he record reflects reasonable attempts by DYFS in remedying the circumstances and conditions relating to placement of [the children] only to have them fail due to [the

mother]'s failure to cooperate or follow through on her court-imposed obligations. DYFS's efforts are not measured by their success. Here the failure of reunification between [the children and their mother] was due to the birth mother's failure or inability to provide for her child[ren].

[(Citations omitted).]

Given C.G.'s "failure to cooperate or follow through on her court-imposed obligations[,]" ibid., she is hard-pressed to argue that her ability to remedy the harm leading to the children's removal is "reasonably foreseeable[.]"

C.G. argues that N.J.S.A. 30:4C-15.1(a) is "conduct-based[,]" citing N.J. Div of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 608 (2007). C.G. further asserts that an "examination of [her] conduct cannot support a finding of parental unfitness." She points to her having obtained employment three days prior to her trial testimony, and her then-pending application for a two-bedroom apartment. She further contends that the trial court failed to acknowledge her decision to end her relationship with J.J., which she describes as "conduct that eliminated the source of the domestic violence and is conduct demonstrating the defendant's commitment to independently parent her children."

This argument ignores the fact, as found by the trial judge, that C.G. "fail[ed] to take any reasonable steps to plan for the care of the children," leading the judge to "clearly and convincingly believe that she is unwilling and unable to eliminate the harm facing the children and to provide a safe and stable home for her children." C.G.'s assertion that separating from J.J. "eliminated the source of the domestic violence" and demonstrates her "commitment to independently parent her children[,]" is flawed in two respects: (1) it ignores the fact that C.G. was the "source of the domestic violence" resulting in J.J. obtaining a final restraining order against her; and (2) it is inconsistent with C.G.'s proposal, in her March 23, 2005 evaluation, that J.J. have custody of the boys, M.J. and J.J., Jr., and that she have custody of M.E.J. along with her older daughters.

C.G. further contends that DYFS's "decision to focus its efforts on J.J. was unreasonable, and . . . [DYFS] was never committed to the success of a reunification with [C.G.] even after a reunification with J.J. proved untenable." Once again, this argument ignores the many services offered by DYFS and ordered by the court, with which C.G. was non-compliant. As the trial court also noted, C.G. presented no valid explanation or excuse for her non-compliance with those services.

For the same reason, we reject C.G.'s argument that DYFS "should not be permitted to sabotage a natural parent by not providing the services required, knowing that inaction will result in parental termination." The record clearly demonstrates that C.G. "sabotaged" herself by her own "inaction[.]"

Finally, C.G. contends the trial court's finding under the fourth statutory prong was flawed because of its statement that it "is better for the children to find permanency than to live in limbo forever." (Emphasis added).

We reject this argument as wholly without merit. The trial judge expressly noted the children's multiple placements in the four years preceding trial, and concluded: "There does not appear to be any possibility of permanent placement for these children without termination." The judge stated, in his conclusion, that "the State has proven each element of the best interests of the child standard set out in N.J.S.A. 30:4C-15.1 by clear and convincing evidence." (Emphasis added.)

These findings are solidly based on the record, particularly the evidence of C.G.'s own failure to take any meaningful steps, over a four-year period, to regain custody of her children until the eve of trial. "In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O, supra, 161 N.J. at 357. The trial judge properly focused on this "central factor" in his decision.

Affirmed.

The father of J.J., Jr., and M.E.J. is unknown.

J.J. has not appealed.

C.G. has three older children who are not subject to these proceedings. DYFS first became involved with C.G. in connection with those children in 1994.

In its appellate brief, DYFS informs us that J.J., Jr. and M.J. were placed with the maternal aunt, T.R., after entry of the termination order, and that the "current plan for the children is for T.R. to adopt."

(continued)

(continued)

19

A-6549-06T4

RECORD IMPOUNDED

June 24, 2008