NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.A.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3023-08T43023-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.A.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

D.A., N.K.A., D.L.A. and D.J.A.,

Minors.

____________________________________

 

Submitted: November 30, 2009 - Decided:

Before Judges Lisa and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-63-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant, A.A., appeals from a judgment of guardianship terminating her parental rights to her sons, D.A. (born August 26, 2005), N.K.A. (born June 6, 2003), D.J.A. (born February 7, 2000), and D.L.A. (born July 30, 1998). Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The Law Guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Laskin's finding that all four prongs were clearly and convincingly established. Therefore, we affirm.

I.

The Division's contacts with A.A. and her children date back to at least 1998. Contacts between then and 2006 were sporadic, and resulted primarily in unsubstantiated allegations of abuse and neglect. The case was reopened on February 28, 2006, because of an incident in which D.J.A. was injured, suffering a severe laceration to his head. The investigating caseworker determined that the living arrangements for defendant and her five children were inadequate, and a series of efforts were initiated to assist defendant in obtaining suitable housing.

Over the ensuing months, defendant was uncooperative with the substantial efforts being made by the Division to obtain suitable housing. Defendant also resisted the Division's effort to arrange for a psychological evaluation for defendant. On June 6, 2006, a DYFS caseworker visited the family at the hotel in which they were staying since being evicted from their prior residence. Defendant "was very resistant to the idea of anyone helping her." By July 20, 2006, defendant and the children had moved out of the hotel and moved into a residence in Camden, to which a caseworker delivered food and furniture.

Over the course of the next year, the Division continued to monitor the situation, with periodic visits and offers of additional services. Defendant continued to resist availing herself of the offered services. On some of these visits, evidence of emotional abuse of the children was detected. On one occasion, the caseworker noted that the children looked scared, sad and miserable. On April 27, 2007, the caseworker learned that defendant had not been keeping her children up to date in their medical care, and that the children's school had unsuccessfully attempted to contact defendant six separate times regarding D.L.A.'s poor performance.

On May 14, 2007, the caseworker received a call from defendant's landlord informing her that defendant was past due on her rent and about to be evicted. The caseworker immediately went to defendant's home to offer assistance. The caseworker noticed that a bed purchased and furnished by the Division had not been assembled. The landlord temporarily refrained from following through with the eviction out of concern for the children. Defendant had quit her job and was unemployed. Defendant said she planned to move in with relatives in Camden, but refused to provide the address or any other details.

On July 24, 2007, defendant appeared at the local Division office with all five children. She stated that the eviction was now going forward. She offered to place the children in temporary foster care. The caseworker persuaded defendant not to do so, and instead to allow the Division to assist her in obtaining housing. Defendant agreed to go with the caseworker to the welfare office the next day to apply for the emergency housing program. However, when the caseworker arrived to take defendant there, defendant refused to go. In the face of defendant's uncooperativeness, the caseworker went to the office and obtained the housing application forms, which she brought back to defendant to fill out. Defendant filled out the forms, but never went to City Hall to get copies of the children's birth certificates, which were needed to process the application.

Into early August, the caseworker continued in her efforts to persuade defendant to cooperate in applying for emergency housing, but to no avail. Finally, on August 3, 2007, defendant arrived at the Division office and announced that she had been evicted. The caseworker persuaded defendant to walk with her to the welfare office to attempt to obtain emergency housing. Because it was late on a Friday, personnel at the welfare office said there was nothing that could be done until Monday morning. The caseworker then told defendant the children would have to be placed in foster care. Defendant contacted family members, and four of the children were placed with family members. The youngest child, D.A., was placed in foster care. Defendant continued to remain uncooperative in obtaining housing.

On August 7, 2007, the court awarded custody of the children to DYFS pursuant to its abuse and neglect complaint. The court found that removal was necessary because defendant was homeless, despite the Division's effort to prevent homelessness. The court also ordered that the children could be returned to defendant if she secured adequate housing by the next hearing, which was scheduled for September 14, 2007. Defendant failed to appear at the September 14 hearing, as well as subsequent hearings in November 2007 and February and April 2008.

DYFS offered defendant regular visitation. Defendant visited with the children for the first two weeks after their removal on August 3, 2007. However, for the next ten months, defendant's whereabouts became unknown to the Division, and she had very little contact with the children. At a June 5, 2008 compliance hearing, defendant continued to refuse to provide any details about her alleged efforts to secure housing. At this hearing, it was also revealed that the two older boys, D.L.A. and D.J.A., had moved into the home of their paternal great aunt, B.F. The two younger boys were in a foster home.

Defendant visited with her children on June 18, 2008. Although she interacted appropriately with them, she refused to discuss her housing situation with the caseworker. When told a psychological evaluation was scheduled for her, defendant tore up the written notice of the appointment and threw it in the trash, stating there was nothing wrong with her and she would never see any psychologist or psychiatrist scheduled by DYFS.

On July 1, 2008, the court approved the Division's plan for termination followed by adoption because of the length of time the children had been in placement and because defendant would not cooperate with DYFS. DYFS filed its guardianship complaint on September 18, 2008. At a September 19, 2008 hearing, when the judge explained to defendant that she would have to attend psychological evaluations, defendant interrupted, exclaiming that there "ain't nothing wrong with me, so I don't need no doctors." At subsequent hearings, defendant continued to refuse to undergo evaluations. Defendant finally relented, and on October 27, 2008, she was evaluated by Dr. Roberta E. Dihoff, a clinical psychologist. Dr. Dihoff also conducted a bonding evaluation.

Trial was conducted on December 11, 2008. The only witnesses were a Division caseworker and Dr. Dihoff. The Division entered in evidence voluminous records, reports and other relevant documents. Defendant did not testify, offer any witnesses, or submit any documentary evidence.

The caseworker testified that the two older boys, D.L.A. and D.J.A., continued living in their great aunt's home, where they had been since August 2007. She said they were getting along well with their great aunt and were very comfortable in the home. Although they missed their mother, they wanted to be adopted by their great aunt because all of their needs were being met there. The great aunt wished to adopt those two boys.

The caseworker further testified that the two younger boys, D.A. and N.K.A., had recently been removed from the home of the relative with whom they had been placed. This was due to an allegation of sexual assault by one member of the household against another (not D.A. or N.K.A.). The caseworker further testified that both D.A. and N.K.A. were set to be adopted into a two-parent household. The boys had met with the prospective adoptive parents multiple times and got along very well with them, and they did not want to leave when the visits were over. The boys were not yet living with the prospective adoptive parents, but all preliminary indications were very positive.

Dr. Dihoff testified that she was unable to complete her evaluation of defendant because defendant was uncooperative and irritated about having to be there. With respect to the bonding evaluation, Dr. Dihoff set forth the following in her report, which was admitted in evidence:

[Defendant] did not display a good understanding of the needs of the children. She gave mixed messages about whether she would go shopping with them, expected the older children to assume parenting roles with the younger children, was inconsistent in making sure her directions were followed, often engaged with the older children as peers, and made demeaning comments to younger children when irritated. Given past history, it is unlikely that she would be able to handle the multiple needs of the children effectively. It appears that [defendant] requires significant support regarding housing, employment, and parenting strategies.

Dr. Dihoff explained that the children had not been receiving consistent medical care, which can "cause long-lasting problems." She also performed a bonding evaluation to gauge how the two older boys, D.L.A. and D.J.A., interacted with their great aunt. She concluded that they were attached to their great aunt, who was providing "stability and structure" for them. She expressed the view that if D.L.A. and D.J.A. remained in the care of their great aunt, termination of defendant's parental rights would not cause serious and enduring harm to them. With respect to the two younger boys, D.A. and N.K.A., Dr. Dihoff stated that they did not have a secure attachment with defendant, and the termination of her parental rights would cause them no enduring harm.

At the conclusion of the one-day trial, Judge Laskin reserved decision. He issued a written opinion on December 22, 2008, in which he recounted the evidence and made specific findings as to all four prongs. He found that the Division had proven all four prongs by more than clear and convincing evidence and that "[t]o require these children to be with [defendant] would be an absolute disaster." He entered a judgment of guardianship on that date. This appeal followed.

II.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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-15.1a.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

III.

Defendant argues that DYFS failed to satisfy the first prong because the only real harm to the children was homelessness. She concedes that by the time of the trial, DYFS alleged that defendant was also ignoring the children's medical care, but, because the caseworker did not provide specific testimony on this point, the judge erred in considering it. We find defendant's arguments unpersuasive.

Dr. Dihoff testified at length about defendant's lack of attention to the children's medical care, and her report addressed the issue as well. The issue was therefore properly before the court by virtue of competent evidence.

We reject defendant's argument that in the absence of expert testimony to explain the medical harm to the children and to explain how defendant was inattentive in her parenting of the children, the judge erred in finding harm to the children in this regard. Extensive Comprehensive Health Evaluation for Children reports were admitted in evidence without objection. These documents described in plain language many of the ills which had befallen the children. For example, D.A.'s report stated that his past medical history included elevated lead level and a heart murmur, and that he was delayed in receiving vaccinations. D.J.A.'s report stated that he should be referred for counseling, and that his immunizations were "very delayed." N.K.A.'s report recommended counseling because he was "exhibiting some developmental delays, behavioral difficulties, and withdrawn [sic] symptoms." These reports provided competent evidence, and the subject matter was not so esoteric as to be incapable of being understood by the judge without the aid of expert testimony.

In addition to finding that the children's medical needs were not being met, the judge also found that their educational and housing needs were not being met and that defendant lacked parenting skills. These findings were well-supported by the record, and provide a further basis for establishing the first prong. Contrary to defendant's contention on appeal, the harm to the children was more than simply homelessness. As Judge Laskin found, defendant possessed little or no parenting skills and demonstrated a general lack of interest in her children. "[T]he attention and concern of a caring family is the most precious of all resources. . . . A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." DMH, supra, 161 N.J. at 379 (citations and internal quotation marks omitted).

Defendant's argument regarding the second prong is also unpersuasive. Although conceding that she refused the Division's assistance before removal of the children, she argues "there is no proof that [she] refused assistance after the children were removed." She therefore argues that because DYFS provided no services to her after removal of the children, DYFS failed to prove the second prong.

However, the record establishes that about two weeks after the children were removed, defendant largely disappeared for about ten months, during which the Division did not know her whereabouts. Defendant saw the children only three times during that period. On each occasion, the caseworker inquired as to the steps defendant was taking to procure stable housing, and defendant refused to provide any relevant information or demonstrate that she was attempting to find housing. Therefore, defendant's claim that she "simply had no idea what DYFS or the court wanted" because DYFS did not provide services after removal rings hollow. The Division wanted defendant to secure stable housing. Defendant was well aware of that, but she refused to cooperate with the services DYFS attempted to provide in that regard.

Defendant makes a similar argument regarding the third prong, namely that although DYFS did offer services to her before removal, no further services were offered after removal. We reject this argument.

Prong three "requires DYFS to undertake diligent efforts to reunite the family. That prong of the standard contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). Thus, defendant is correct that prong three contemplates that DYFS will make reasonable efforts to reunify the family. Moreover, the statute explains that "reasonable efforts" include but are not limited to attempts by the Division to consult and cooperate with the parent in developing a plan for appropriate services, providing services to further the goal of reunification, informing the parent of the child's progress and health, and facilitating visitation. N.J.S.A. 30:4C-15.1c(1)-(4). Lastly, prong three requires the judge to consider alternatives to parental termination. N.J.S.A. 30:4C-15.1a(3).

The reasonableness of the Division's reunification efforts under prong three must be determined on an individualized basis. DMH, supra, 161 N.J. at 390. In determining whether the Division has made reasonable efforts at reunification, consideration must be given to "the parent's active participation in the reunification efforts." Ibid. (citing In re Tricia and Trixie H., 493 A.2d 1146 (N.H. 1985)) (requiring minimum level of active efforts by parents); In re Kristen B., 558 A.2d 200, 202 (R.I. 1989) ("When planning for reunification with a child, the parent not only should establish and comply with a plan that can provide a sound and constructive family life, but must also perform some minimal act toward the fulfillment of that plan."); Adoption of Mario, 686 N.E.2d 1061, 1066 (Mass. App. Ct. 1997) (holding that duty of agency is to engage in reasonable efforts contingent upon mother's fulfillment of her own parental responsibilities and cooperation with agency). See also A.W., supra, 103 N.J. at 610 ("Some factors that suggest that efforts to reunite the family are no longer reasonable include parents [who] refuse to engage in therapy or other services.") (internal quotation marks omitted).

We are satisfied that the record provides clear and convincing evidence that DYFS made reasonable efforts at reunification and that it adequately considered alternatives to parental termination. As stated, defendant largely disappeared after DYFS removed the children and DYFS did not know her whereabouts. Thus, through no fault of its own, DYFS was unable to actively engage with defendant. Despite not knowing her whereabouts, DYFS did make full visitation available to defendant, yet defendant only showed up three times in ten months to visit her children. As noted, at these meetings defendant was uncooperative with DYFS' efforts to discuss defendant's housing situation. Further, defendant adamantly rebuffed the Division's efforts to arrange a psychological evaluation, stating that she would never see any of the doctors DYFS wanted her to see. Thus, even after the children were removed, DYFS continued in its efforts to provide services to defendant, including visitation, psychological evaluations, and assistance to find stable housing. Defendant refused to cooperate.

DYFS could not force defendant to cooperate with it or to participate in services it offered, especially when DYFS did not know where defendant was. There was no "active participation" by defendant in the reunification efforts. The Division made reasonable reunification efforts under prong three.

Additionally, the aspect of prong three requiring the court's consideration of alternatives to termination of parental rights was satisfied. Judge Laskin noted that "[t]he caseworker testified that there are no family members who are interested, other than that which has been outlined in this Opinion. The two older children have been with relatives, and, any family placement efforts have been made, without success." The judge therefore considered alternatives to termination, and his finding that there were no viable alternatives is adequately supported by the record.

Finally, with respect to the fourth prong, defendant argues that the judge erred in relying on Dr. Dihoff's testimony because Dr. Dihoff merely chose the "better" parent rather than analyzing whether termination would do more harm than good. Defendant also contends that Dr. Dihoff failed to address whether the younger two children had bonded with defendant. We reject these arguments.

Under prong four, DYFS was required to prove by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). There is an inherent risk of harm to a child associated with termination of parental rights. K.H.O., supra, 161 N.J. at 355. Therefore, under prong four, the Division need not prove that the child will suffer no harm, but rather the issue is whether, after considering both relationships, "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." Ibid. Thus, the fourth prong is "related to the first and second" prongs because all require a consideration of harm to the child caused by the parent-child relationship. DMH, supra, 161 N.J. at 384.

The judge concluded that prong four was proven by clear and convincing evidence based upon his finding that "[t]hese children have an opportunity to have a decent life, without their mother. They need permanency and stability, neither of which is offered by [defendant]." We agree. The record overwhelmingly demonstrates that defendant has not offered the children permanency and stability, and by the time of trial there was no indication that she would be willing or able to do so in the future.

Defendant's argument that "Dr. Dihoff failed to address whether the younger children had bonded with [defendant]" is factually incorrect. Dr. Dihoff testified that the younger children did not have an attachment to defendant. Indeed, the doctor concluded that it was not even clear if D.A. understood who defendant was. We also reject defendant's argument that Dr. Dihoff did not analyze whether termination would not do more harm than good, but merely chose the "better" parent. Dr. Dihoff stated that the great aunt provided needed permanency and stability which defendant was incapable of providing. Further, she explicitly testified that if the older two children were permanently placed with the great aunt, terminating defendant's parental rights would not cause them serious or enduring harm. A fair conclusion drawn from Dr. Dihoff's report and testimony is that termination of defendant's parental rights would not do more harm than good.

One final issue remains as to prong four. In her brief, defendant states (without further elaboration) that "nor did Dr. Dihoff perform a bonding evaluation between [D.A. and N.K.A.] and the proposed foster parents." Defendant is correct. At the time of the trial on December 11, 2008, the two children were still residing in the temporary foster home where they had been since September 2008, but the foster parents were not willing to adopt them. They were not living with the proposed adoptive parents. In these circumstances, a bonding evaluation with the prospective adoptive parents was clearly not indicated. And, as we have stated, we have recently learned that the proposed adoptive placement for D.A. and N.K.A. is no longer available. See n.2, supra.

In conclusion, we are satisfied that the evidence supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We have no occasion to disturb those findings on appeal. The judge properly applied the correct principles of law to his factual findings, and we find no error in the result reached.

Affirmed.

 

Defendant has another child, who is not involved in this appeal. The father of the four children who are involved in this appeal died on April 6, 2008, during the pendency of the trial court proceedings.

By letter of November 16, 2009, see R. 2:6-11(f), the Division informed us that "the resource home identified at trial as a possible adoptive placement for the minor children, [N.K.A.] and [D.A.], is no longer interested in adoption. Both children have since been removed from that placement." Defendant then filed a motion to supplement the record and for a remand for a new trial, which we denied on December 18, 2009. See M-1935-09.

Although the Court said DYFS must undertake "diligent" efforts, the statute was amended in 1999 to now require only "reasonable" efforts.

(continued)

(continued)

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A-3023-08T4

RECORD IMPOUNDED

December 23, 2009