new jersey DIVISION OF yOUTH AND FAMILY sERVICES v. A.P IN THE MATTER OF THE GUARDIANSHIP OF A.J.P

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0068-08T40068-08T4

new jersey DIVISION OF yOUTH

AND FAMILY sERVICES,

Plaintiff-Respondent,

v.

A.P.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF A.J.P.,

Minor.

____________________________

 

Submitted April 27, 2009 - Decided

Before Judges Lisa, Reisner, and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-92-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor A.J.P. (Patricia A. Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendant A.P. appeals from an August 7, 2008 order granting the New Jersey Division of Youth and Family Services' (the Division) petition for guardianship and terminating her parental rights. For the reasons that follow, we affirm.

A.P.'s child, A.J.P. (hereinafter referred to by the fictitious name "Alex"), was born on April 17, 2004. At the time, sixteen-year-old A.P. herself had been in the custody of the Division since her mother's death in April 2003, and had lived at a residential placement, Isaiah House, since November 2003. A.P. identified two men as possible fathers to Alex, but neither could be located.

Prior to the child's birth, Mark Singer, Ed.D., conducted a psychological evaluation of A.P. in order to assess her parenting ability, mental status, and treatment needs. He recommended that she be placed in a group home for teenage mothers and their children as she was not capable of caring for her child outside of a structured setting. He also recommended that she complete the parenting skills program that she had begun at her residential placement. Over a two-week period in the spring of 2004, the Division contacted twenty-eight agencies, but was unable to secure a group-home placement for A.P. and Alex.

When Alex was born, A.P. refused to consent to his placement with the Division. The child was subsequently removed by court order and placed in a temporary resource home. On April 23, 2004, A.P. failed to return to Isaiah House. She was living at the home of a family friend, and voluntarily returned to the residential placement when discovered.

After having completed parenting classes, A.P. was discharged from Isaiah House in May 2004. She and Alex were reunited and placed in a resource home. During this time, contrary to the Division's instructions, A.P. cared for the baby unsupervised.

On July 21, 2004, A.P. reported to the Division that her foster mother was neglecting the baby's needs, and that his immunizations were not current. A.P. was not getting along with her foster mother, who, she claimed, was verbally abusive, withheld money from her, and would not allow her to buy things for either Alex or herself.

Accordingly, A.P. and Alex were placed in a second resource home on July 23, 2004. While there, A.P. participated in in-home counseling with an agency called Family Connections. The agency's reports of November 19, 2004, and February 16, 2005, were mostly positive. In the latter report, however, A.P.'s counselor indicated that A.P. showed poor insight and coping skills, had a tendency to blame others, and displayed limited frustration tolerance.

A.P. was subsequently referred to individual therapy, but the referral was made to a therapist no longer employed by that agency. A.P. was then referred to a second agency, which was unable to contact her. This futile effort at connecting her with individual therapy extended from August 17, 2004, to March 11, 2005.

A.P. was also referred for life skills classes on October 6, 2004, although she did not enroll at that time. In April 2005, she was referred to a second life skills program and underwent two psychological evaluations. Michelle Zuckerman, Psy.D., evaluated A.P. on April 22, 2005. She recommended that A.P. "[r]emain in a stable structured environment that provides her with supervision, support and guidance in order for her to continue to parent [Alex] effectively," that she continue with individual therapy, and that she obtain a GED.

On April 28, 2005, Leslie Williams, Ph.D., also performed a psychological evaluation of A.P. He opined that although independence was a "viable goal" for A.P., she was not "currently capable of independently parenting" Alex. He concluded that A.P. could provide adequate care for Alex if living in a structured, supervised program.

While in her second resource-home placement, A.P. enrolled in high school. She was not performing grade-level work and had so many absences that she was in danger of receiving no credit for the school year. After the Division was notified by the school about these issues, they spoke with A.P.'s foster mother, who indicated that she no longer wanted to care for A.P. because she refused to attend school.

At the end of June 2005, A.P. was assaulted by a girl who lived across the street from her resource home. She was hospitalized for three days and required surgery on her jaw. Once released, A.P. requested that she be placed elsewhere as she feared for her safety. She and Alex were moved to a battered women's shelter and she continued to attend parenting and anger management classes, as well as weekly counseling sessions at New Bridge Services, Inc. A.P. enrolled in a GED program, but was terminated in a matter of days, after shouting obscenities at a staff member who asked her not to use her cell phone during class.

On November 4, 2005, A.P. failed to return to the battered women's shelter by the curfew hour and was placed on "house arrest" for one month. Nonetheless, she remained at the shelter until her eighteenth birthday on January 16, 2006. She then chose to leave, taking Alex with her because her shelter-operated apartment was dirty, and a staff member hit Alex when he dropped his bottle. A.P.'s complaints to the Division and her attorney about the shelter had not been addressed despite the Division's confirmation of the conditions that A.P. had described. A Division caseworker Marilin Suero conceded at trial that the shelter was an inappropriate placement, but no other residential placement would allow mother and child to remain together.

After leaving the battered women's shelter, A.P. and Alex returned to the home of A.P.'s family friend. She did not notify the Division of her whereabouts as she feared Alex's removal. A.P. failed to appear at a review hearing, but upon learning that a bench warrant had been issued for her arrest, she turned herself in to the court. Although the Division found that Alex had been well-cared for, he was placed in a temporary resource home. He was moved to his current resource home on April 20, 2006, and his resource parents have expressed interest in adopting him.

An early intervention program (EIP) evaluation, completed on October 6, 2006, found Alex to be eligible for EIP services based on his "global" developmental delays. He received EIP services twice a week until he turned three, at which point he was referred for a special education program to further address his developmental delays. Alex also suffers from behavioral issues.

On December 19, 2006, A.P. underwent a fourth psychological evaluation, the second performed by Dr. Singer. She was then unemployed, supported by her family friend, and living in the friend's two-bedroom apartment, along with the friend's daughter and grandson. A.P. informed Dr. Singer that after Christmas, she planned to reside with an uncle.

Following a permanency hearing on January 16, 2007, the Family Court judge rejected the Division's plan of reunification. He found that A.P. had not made significant progress, and that Alex deserved permanency. He ordered A.P. to attend vocational school and the Division to make arrangements for her to attend Family and Children's Services (FACS) for counseling and parenting skills. When A.P. failed to attend the first FACS appointment and the rescheduled appointment, she was terminated from the program.

On February 1, 2007, a second Family Court judge approved the Division's plan of foster-home adoption for Alex. He agreed that A.P. had not significantly progressed since the child's birth and directed the Division to file a complaint to terminate A.P.'s parental rights no later than March 23, 2007. As an interim measure, the judge also ordered that the Division continue to provide services to A.P.

Initially, A.P. had weekly supervised visits with Alex at the Division office lasting one-and-a-half to two hours. The visits continued once every two weeks after the Division filed for guardianship.

A.P. was again referred for individual therapy at FACS on June 4, 2007, but there was a two-month waiting list. She enrolled in parenting classes, but as of July 31, 2007, had attended only three. FACS informed A.P. that she needed to attend classes on a weekly basis in order to complete the program. By the end of August, she had attended only one additional class. She was terminated from the program on November 6, 2007.

Yet another psychological evaluation was conducted by Dr. Singer on June 27, 2007. A.P. reported that she was unemployed and not attending school. If she found work, she planned to leave Alex in daycare and thought that her uncle would help her. She stated that she was "working on getting a job," and that she and Alex could live with her uncle. Dr. Singer, who also conducted a bonding evaluation, concluded that A.P. lacked the emotional and physical resources to care for any child at that point in time and was "not likely to become a viable placement option for a child in the foreseeable future." He did find, however, that A.P. and Alex had "laid the foundation for a significant attachment."

Dr. Singer's bonding evaluation of Alex and his foster parents was completed on August 7, 2007. He opined that Alex saw his foster parents as "significant attachment figures" and had "a sense of security" with them. In his view, if removed from his foster parents, Alex would suffer and likely regress behaviorally and emotionally. The impact of removal could include depression, low self-esteem, and difficulty with future relationships.

In December 2007, A.P. enrolled in individual therapy at FACS, but failed to attend after March 3, 2008, and as a result, was terminated. She enrolled in parenting classes in January 2008, but was terminated on April 7, 2008, due to her failure to attend any sessions whatsoever.

A final psychological evaluation was performed by Dr. Singer on June 24, 2008. This time, A.P. reported that she had her own two-bedroom apartment and had been working as a waitress for seven months. Dr. Singer nonetheless determined that A.P. lacked the emotional resources to care for a child and was unlikely to become a viable placement option in the foreseeable future. He conducted a second bonding evaluation between mother and son and found that they required time to "warm up" to one another, and that Alex did not respond to his mother's directives regarding his behavior.

The following day, Dr. Singer had to cut short the second bonding evaluation between Alex and his foster parents. The foster parents reported that A.P. missed many of her scheduled visits with Alex, and that Alex demonstrated significant special needs. Dr. Singer again concluded that Alex did not consider A.P. to be a consistent parental figure in his life, but that enough of an attachment existed that if the relationship were terminated, Alex would experience an adverse reaction, albeit fleeting and capable of being mitigated.

At trial, Suero, the caseworker, reiterated that during her visits with Alex, A.P. interacted well with the child, but had difficulties in responding to his behavior. At that juncture, A.P. was employed and had her own apartment, but the Division had not assessed A.P.'s housing because she had not been compliant with Division services. Suero further testified that A.P. had offered her paternal uncle as a placement option. Although he had completed a background check, he was not heard from again.

Dr. Singer testified that A.P. denied that her child had significant developmental and cognitive needs, despite data suggesting otherwise. He found her defensive, minimizing of personal faults, and struggling with creating stability in her life. She demonstrated characteristics consistent with narcissistic personality disorder with histrionic and obsessive/compulsive personality features. He reiterated his view that A.P. lacked the emotional resources needed to parent and was unlikely to acquire such skills and resources in the foreseeable future. He did not perceive Alex and A.P.'s relationship to be healthy or secure and stated that Alex did not view A.P. as a consistent parental figure in his life. He said that Alex viewed his foster parents as consistent parental figures, and that they, in contrast to A.P., understood Alex's unique developmental needs. Alex would have a significantly adverse reaction if removed from his foster parents. Although Alex would experience a loss if A.P.'s parental rights were terminated, this loss would not be enduring.

A.P. testified as to the history of her various placements and issues since the child's birth. Her plan for Alex, if he were returned to her custody, would be to place him in daycare or with a family friend while she worked. She acknowledged having been told that Alex had Attention Deficit Hyperactivity Disorder, but did not think that anything was wrong with him as he walked and talked like a normal child.

On August 7, 2008, the court issued an oral opinion finding that the State had met the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) for termination of parental rights. Accordingly, the court terminated A.P.'s parental rights to Alex and committed the child to the guardianship of the Division.

When reviewing a decision terminating parental rights, we determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of this review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

Parents have a fundamental constitutional right to a relationship with their children, Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972), but this fundamental right is not absolute, In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. The State can terminate the parent-child relationship only when it satisfies the "best interests" test set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and codified in N.J.S.A. 30:4C-15.1(a). Pursuant to the test, it is appropriate to terminate parental rights only when the State proves by clear and convincing evidence that:

(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 parental rights will not do more harm than good.

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

The four prongs of the test "are not discrete and separate." K.H.O., supra, 161 N.J. at 348. Rather, "they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." Ibid. The best interests test as a whole "requires a showing of very substantial and continuing or recurrent abuse or neglect that endangers the child's health and development." In re Guardianship of DMH, 161 N.J. 365, 377 (1999).

a. The child's safety, health or development has been or will continue to be endangered by the parental relationship

Under the first prong of the best interests test, the Division must demonstrate that the child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The focus of this prong is not "a single or isolated harm or past harm." K.H.O., supra, 161 N.J. at 348. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid. The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352.

In her oral opinion, the Family Court trial judge relied upon A.P.'s inability to complete treatment programs or her education, as well as her personality traits, such as impulsiveness, poor coping skills, and limited frustration tolerance, in concluding that this prong was satisfied. She noted that A.P.'s limitations were inextricably intertwined with her personality features. The judge concluded that due to her personality characteristics, A.P. would be unlikely to benefit even if she were to follow through on treatment.

We agree. Despite the fact that A.P. has not been overtly abusive or neglectful of Alex's needs, she has not been able to appropriately meet the child's needs or to provide for the child's safety, health and development. Nearly two years elapsed before she was able to secure her own housing. At the time of trial, she was unemployed, having been laid off from the only job she was able to obtain during the pendency of the proceedings, although she testified that she anticipated being recalled to work when her employer reopened the business.

A.P.'s inability to follow through on any of the steps necessary for her to keep her child is of particular concern where the child has special needs. Dr. Singer stated that A.P.'s narcissistic personality disorder with its histrionic and obsessive/compulsive features makes it especially difficult for her to acknowledge and respond to the needs of others, which is problematic given Alex's developmental issues. It is clear that A.P. loves her child and attempted in her own way to establish a more stable lifestyle. Unfortunately, the scant progress that she made by the time of trial, years after the child's birth, is not enough to defeat the Division's clear and convincing proofs that continuation of the parental relationship would continue to endanger Alex.

b. The parent is unable or unwilling 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.

Clear and convincing evidence of a parent's inability to provide a safe and stable home for a child, and evidence that the delay of permanent placement will add to the 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." N.J.S.A. 30:4C-15.1(a)(2). The focus of this prong is "whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The burden rests with the Division to demonstrate that the biological parent has not "cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

In her decision as to this prong, the Family Court judge relied upon the early psychological evaluation conducted by Dr. Williams as well as Dr. Singer's reports and testimony. In the opinion of those experts, A.P.'s inability to parent is interwoven with her personality characteristics. In addition, her inability to fully acknowledge the child's special needs raises the risk that Alex's needs will be unmet over time if A.P.'s parental rights are not terminated.

In reviewing the factual findings and conclusions of the trial judge, this court is "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (citing Cesare, supra, 154 N.J. at 411-13). At trial, A.P. failed to rebut the experts' findings.

A.P. was certainly given adequate time to comply with Division services. By the start of trial, Alex was four years old. He had been separated from A.P. for nearly two-and-a-half years and lived with his current resource family for the majority of that time. Our law acknowledges "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). For better or for worse, "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

Evidence that the child has a strong relationship with the foster parents or might be better off if left in their custody is not sufficient for termination of the biological parent's rights. J.C., supra, 129 N.J. at 19. The Division "must prove by clear and convincing evidence that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." Ibid. Based on his observations of Alex and his foster parents, Dr. Singer concluded that separation would have such lasting effects on Alex, including depression and low self-esteem.

By the time this matter was tried, Alex had lived with his foster parents for more than half of his life. They recognized his developmental needs and were actively pursuing treatment for him. They also expressed an interest in A.P. having a relationship with Alex, even if they adopted him. Therefore, the trial court properly found that the Division satisfied the second prong of the best interests test.

c. 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.

Under the third prong of the best interests test, the Division must demonstrate that it made reasonable efforts to provide services to help the parent correct the circumstances that led to the child's placement, and that the court considered alternatives to termination of parental rights. N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" is defined as attempts to assist the parent "in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure," including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

The Division must "monitor the services, change them as needs arise, and identify and strive to overcome barriers to service provision or service utilization." DMH, supra, 161 N.J. at 387 (citation omitted).

The diligence of the Division's efforts on behalf of the parent is not measured by their success. Id. at 393. The parent's failure to become the child's caretaker is not determinative of the sufficiency of the Division's efforts toward reunification. Ibid. Rather, the Division's efforts "must be assessed against the standard of adequacy in light of all the circumstances of a given case. Consistent efforts to maintain and support the parent-child bond are central to the court's determination." Ibid.

We concur with the Family Court judge that A.P.'s history with the Division reflects that agency's many "reasonable efforts" to remedy the circumstances that led to Alex's removal, their several placements and their many unsuccessful referrals. A.P. suggested to the Division placement options that were not realistic. The Division demonstrated by clear and convincing evidence that it made reasonable efforts, and that no other options were available.

d. Termination of parental rights will not do more harm than good.

The fourth prong of the best interests test requires a showing that termination of parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). The trial court is required to "consider and balance the relationship of both the parent and the child, and determine whether the child will suffer greater harm from terminating the child's ties with the natural parents than from the permanent disruption of the relationship with the foster parents." A.G., supra, 344 N.J. Super. at 435. "It is not a question of whether the child will be better off with the foster parents, but rather, the balancing requires 'clear and convincing evidence that separating the child from his . . . foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).

New Jersey has a strong public policy in favor of permanency. K.H.O., supra, 161 N.J. at 357. In guardianship and adoption cases, "the child's need for permanency and stability emerges as a central factor." Ibid. N.J.S.A. 30:4C-15(d), for example, authorizes the Division to file for termination of parental rights where a child has been in placement for more than one year, and the parent has failed to remedy the problems that caused placement, despite the Division's "diligent efforts" to assist reunification. Id. at 358.

The Family Court judge relied heavily upon the results of the bonding evaluations in assessing this prong of the test. Although Dr. Singer acknowledged that the child would experience a loss were his relationship to his mother severed, it was a manageable loss. As to the bond between Alex and his foster parents, however, Dr. Singer's testimony was unequivocal that the child would experience significant long-term emotional harm should he be separated from them. The Family Court judge noted Dr. Singer's testimony that A.P. lacked the emotional resources to assist Alex in coping with the significant loss he would experience if his relationship to his foster parents were terminated.

On this issue, the Family Court judge also considered noteworthy A.P.'s failure to acknowledge her own therapeutic needs as well as those of her child. Although, as the judge stated, A.P. had a "heartfelt" plan to care for her child, there was neither a backup plan nor any consideration given to the trauma that Alex would experience if his relationship with his foster parents were severed.

A.P. claims that the bonding evidence was fatally flawed because an updated evaluation of Alex and his foster parents was not completed. This ignores Dr. Singer's testimony that "assuming that there have been no significant, negative events that have occurred, I would expect that the relationship that was clear in June of 2007 would continue to evolve in a healthy fashion." Because A.P. has not suggested evidence of any such negative event, we can safely conclude, along with the trial judge, that the relationship has only strengthened over with time. The Division has therefore demonstrated that termination of A.P.'s parental rights would not do more harm than good.

Affirmed.

 

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A-0068-08T4

RECORD IMPOUNDED

June 17, 2009