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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1246-07T41246-07T4

A-1248-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.G. and R.H.,

Defendants-Appellants.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.H. and B.H., minors.

_________________________________

 

Submitted March 17, 2009 - Decided

Before Judges Wefing, Yannotti, and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Morris

County, No. FG-14-53-07.

Yvonne Smith Segars, Public Defender, attorney

for appellant R.H. (Dianne Glenn, Designated

Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney

for appellant M.G. (Carol A. Weil, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney

for respondent New Jersey Division of Youth

and Family Services (Andrea M. Silkowitz,

Assistant Attorney General, of counsel;

Victoria Almeida Galinski, Deputy Attorney

General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minors D.H. and B.H.

(Patricia A. Dulinski, Designated Counsel,

on the brief).

PER CURIAM

Following a bench trial, the trial court entered a judgment terminating the parental rights of M.G. and R.H. to their children D.H. and B.H. M.G. and R.H., the mother and father respectively of these two children, have each appealed from that judgment, and we have consolidated those appeals. After reviewing the record in light of the contentions advanced on appeal, we affirm.

M.G. and R.H. have never been married but did have a relationship together for approximately fifteen years. From that relationship, they had three children. The oldest, born in 1993, was removed from their care following a domestic violence incident between M.G. and R.H. That child resides in Florida with M.G.'s mother. They also have a son, D.H., now seven years of age, and a daughter, B.H., now five and one-half years of age. M.G. has one other child born in 1986 of a different father. M.G. executed a voluntary surrender with respect to that child in 1987. This litigation involves D.H. and B.H.

The New Jersey Division of Youth and Family Services ("DYFS") had received several reports in 2003 and 2004 of D.H. and B.H. being maltreated. A DYFS representative visited the family to investigate each report and found the allegations unsubstantiated. During much of this time, the family did not have a permanent residence but was being helped by programs serving the homeless. R.H. was asked to leave one such facility because of his drinking.

On September 10, 2005, however, a DYFS representative visited the family in response to another report and found deplorable conditions. The only food in the home was a jar of peanut butter, and there was no hot water. The home was filthy, and the children were dirty, to the extent that they had not been properly cleaned after using the toilet. In addition, they had head lice and flea bites. Both parents admitted they had been drinking all day and were under the influence of alcohol. The children were immediately removed. They were first placed with R.H.'s mother but she was unable to care for the children due to her age. They were then placed with a foster family, with whom they have resided ever since.

At the bench trial, DYFS presented the testimony of two of the caseworkers who had worked with M.G. and R.H. and Frank J. Dyer, Ph.D. Dr. Dyer performed a psychological examination of both M.G. and R.H. and bonding evaluations of the children with both their biological parents and their foster parents.

Dr. Dyer testified that, in his opinion, M.G. was not capable of parenting either of these two children. He cited the history with respect to her two older children, a history of abusive and neglectful behavior, as well as a history of substance abuse and alcoholism. Dr. Dyer said that she was an individual with a high level of anxiety who was vulnerable to depression. He observed her interactions with D.H. and B.H. and found her to be "cold and distant" with the children. He said that there "was not much of a rapport" between her and either of the children and that she did not "occupy a position of centrality in the inner emotional life" of the children. He found, by way of contrast, that the children were attached to their foster parents and that separating the children from the foster parents "would inflict a devastating loss on [the children] that would result in trauma that would have the effect of inflicting severe and enduring psychological harm on them." Dr. Dyer testified that he considered it "an extremely risky proposition" to return the children to M.G.'s care.

He reached a similar conclusion with respect to R.H. Dr. Dyer described R.H. as "manipulative, irresponsible, contemptuous of rules and laws, tends not to focus on the needs of others but to place a very high priority on his own needs . . . ." He noted that R.H. had a long history of drug abuse and alcoholism. He did note, however, that R.H. was affectionate and appropriate with the children during the bonding evaluation. That, however, did not affect his opinion that the children would not suffer a loss if the parental bond were severed but would suffer if they were separated from their foster family.

M.G. presented two witnesses on her behalf--Joan Schramm, a social worker with Interfaith Council for Homeless Families of Morris County, and Doreen Sperber-Weiss, Ph.D. Ms. Schramm was assisting M.G. in her efforts to overcome her problems. Interfaith Council ran a program for the homeless in which they would stay one week at a time at various churches or synagogues in the area. It provided assistance in developing job skills, locating housing and needed treatment services. M.G. had entered Interfaith's shelter program in February 2006. By the time of the trial in August 2007 she had not obtained independent housing. Dr. Sperber-Weiss described M.G. as a "work in progress" who needed to work on her parenting skills. When asked if she was recommending reunification of M.G. with the children, she said she was not at that time.

R.H. testified and he presented Paul Fulford, Ph.D., as his expert. Dr. Fulford testified that in his opinion R.H.'s problems were the result of his drinking and that since R.H. had been sober for almost a year, his problems would resolve. He said that if R.H. completed a year of sobriety, obtained a job and obtained housing (neither of which had occurred by the time of the trial), he would be capable of parenting the two children. As did Dr. Sperber-Weiss, Dr. Fulford admitted that R.H. was not capable by the time of trial of parenting the children.

One other expert witness testified, Rachel Jewelewicz-Nelson, Ph.D., who testified on behalf of the Law Guardian. Dr. Jewelewicz-Nelson performed psychological evaluations of M.G. and R.H., as well as bonding evaluations. Dr. Jewelewicz-Nelson testified that she found M.G. to be anxious and that her test scores indicated narcissism and histrionics, that M.G. tended "to perceive the world very much in an egocentric way meaning that she interprets everything in terms of [how] it affects her . . . ." According to Dr. Jewelewicz-Nelson, M.G. may know intellectually what to do in terms of parenting but is unable to translate that into action. She testified that even if M.G. secured stable housing and a job, she would still be unable to parent.

She reached a similar conclusion with respect to R.H. She said that he tended to blame others, did not accept responsibility for his own behavior and could not put his needs aside in favor of those of the children. She expressed the opinion that even if he were to secure independent housing and maintain a job and sobriety, he would not be able to parent. As did Dr. Dyer, Dr. Jewelewicz-Nelson testified that the children would experience no harm if the parental bonds were severed but would "experience a severe sense of loss and disruption if they lost their foster parents with whom they've become very attached." She characterized the bond between R.H. and the children as disorganized and not positive and said that D.H., who had been diagnosed with oppositional disorder, acted out against his father by striking him at several points.

On appeal, M.G. raises the following contentions for our consideration.

POINT I THE ORDER TERMINATING THE MOTHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NJ DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MAKE REASONABLE EFFORTS TO REUNITE THE CHILDREN WITH THEIR MOTHER; INSTEAD, THE DIVISION PROVIDED EXTENSIVE THERAPEUTIC HELP AND OTHER SERVICES ONLY TO THE FOSTER FAMILY.

POINT II THE ORDER TERMINATING THE MOTHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE MOTHER IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

POINT III THE ORDER TERMINATING THE MOTHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

In addition, R.H. raises the following contentions for our consideration.

PRONG ONE THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL COURT'S FINDING THAT THE HEALTH AND DEVELOPMENT OF DH AND BH HAVE BEEN AND WILL CONTINUE TO BE ENDANGERED BY THEIR PARENTAL RELATIONSHIP WITH RH.

PRONG TWO THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE TRIAL COURT'S FINDING THAT RH WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING BH AND DH OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR DH AND BH AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM.

PRONG THREE THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE COURT'S FINDING THAT THE DIVISION HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE CIRCUMSTANCES WHICH LED TO THE REMOVAL OF DH AND BH OR THE COURT HAS CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

PRONG FOUR THE EVIDENCE THE DIVISION PRESENTED AT THE GUARDIANSHIP TRIAL DID NOT MEET THE CLEAR AND CONVINCING STANDARD AND THEREFORE DID NOT SUPPORT THE COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

Parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982). That interest, however, is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Indeed, "[t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid.

Striking the balance between these competing interests is achieved through the "best interests of the child" standard. Ibid. That standard, codified at N.J.S.A. 30:4C-15.1(a), provides that parental rights may be terminated when:

(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)(1)-(4).]

These four prongs "are not discrete and separate; they relate to and overlap with one another" to determine the best interests of the child. K.H.O., supra, 161 N.J. at 348. This determination is "extremely fact sensitive." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). Before ordering termination of parental rights, a trial judge must be satisfied that this standard is met by clear and convincing evidence. N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986).

In reviewing a trial court's decision, the appellate 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 and Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Moreover, appellate courts should give considerable deference to the fact-finding of the family court because of that court's special expertise in family matters. Cesare, supra, 154 N.J. at 413.

We reject the arguments put forth by defendants M.G. and R.H. With respect to the first prong, the record fully documents the extent to which defendants had neglected their children at the time DYFS stepped in and removed them. The children's health, safety and development were clearly endangered by defendants' inability to meet the simplest tasks of daily living.

With respect to the second prong, neither defendant had been able to eliminate the risk of harm to the children. Although by the time of the guardianship trial, nearly two years had passed since the children were first removed, neither parent had obtained stable, independent housing. Although M.G. had obtained employment (which she lost on one occasion and then regained), R.H. had yet to do so.

Under the third prong, DYFS must establish by clear and convincing evidence that it made reasonable efforts to achieve reunification of the parents with their children. The reasonableness of the measures DYFS undertook "is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). DYFS need only show a sustained attempt to reunite the parent and the child. Ibid.

M.G. and R.H. were provided with a variety of services, including substance abuse counseling, psychological evaluations and individual therapy and parenting skills sessions. They also participated in the Therapeutic Supervised Visitation Program, which involved therapy sessions in conjunction with visitation. That some delay was experienced with respect to instituting certain services does not detract from the overall reasonableness of the efforts made by DYFS. DYFS also explored the possibility of placing the children with other family members, but that proved not to be feasible.

With respect to the fourth prong, the central question is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The trial court's conclusion that DYFS satisfied its burden of proof under this prong finds ample support in the record.

The judgment under review is affirmed.

 

There was testimony during the trial that DYFS draws a distinction between a finding of "unsubstantiated" and a finding of "unfounded." "Unsubstantiated" indicates there is not enough evidence to support a finding of abuse or neglect, but there may be a problem. "Unfounded" indicates there was no evidence of abuse or neglect, and there was no basis for the allegation.

(continued)

(continued)

12

A-1246-07T4

RECORD IMPOUNDED

April 8, 2009