NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3654-07T43654-07T4

A-3660-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.C.,

Defendant-Appellant.

____________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

I.C.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF E.C. AND

S.C.,

Minors,

____________________________

 

Submitted February 2, 2009 Decided

Before Judges Lisa, Reisner, and Alvarez.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-24-08.

Yvonne Smith Segars, Public Defender, attorney for appellant E.C. (Alan I. Smith, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant I.C. (Kevin M. Brown, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors E.C. and S.C. (Patricia A. Dulinski, Designated Counsel, on the brief).

PER CURIAM

Defendants E.C., Sr., and I.C., appeal from the trial court's termination of their parental rights pursuant to N.J.S.A. 30:4C-15.1(a). Guardianship of defendants' two children was awarded to the New Jersey Division of the Youth and Family Services (the Division). After the proceedings were filed, the Division withdrew its request for guardianship as to a third child, S.M., as she turned eighteen while the proceedings were pending.

E.C., Sr., objects that the trial court abused its discretion by permitting a caseworker to testify from case notes in violation of the hearsay rule. Both E.C., Sr., and I.C. object generally that the Division's proofs did not meet the statutory four-prong test for termination of parental rights enunciated in N.J.S.A. 30:4C-15.1(a)(1), (2), (3) and (4), and specifically, that neither the second nor fourth prong was met. We reject these arguments and affirm.

Family History as Developed at Trial

The following facts were developed at trial. The Division first became involved with I.C. in 1994 concerning S.M., her biological child who was born October 23, 1989. I.C. was then incarcerated, and S.M. was residing with her maternal grandmother. Between July 1999 and December 2000, after I.C. was released from prison, and S.M. returned to live with her, the Division received three referrals of alleged physical abuse of S.M. by E.C., Sr., who is not S.M.'s biological father. None of the referrals were substantiated.

On October 19, 2002, a referral stating that E.C., Sr., had assaulted S.M. was made by police who had arrived at the family home to discover E.C., Sr., in an intoxicated state. When police called I.C., she told them that she was at a party, could not come home, and that the authorities should just arrest E.C., Sr. E.C., Sr., and I.C. later signed a Division case plan on October 21, 2002, agreeing that E.C., Sr., would remain out of the marital residence until a substance abuse evaluation was completed. The Division recommended that E.C., Sr., become involved with intensive outpatient substance abuse treatment as well as Alcoholics Anonymous.

On November 10, 2003, police were called to the family home on two occasions, based on I.C.'s report that E.C., Sr., had returned and assaulted S.M. The Division received another referral about the family when on February 16, 2004, E.C., Sr., injured S.M. during a confrontation, was arrested for assault, and was bailed out by I.C. As a result, on February 19, 2004, I.C. signed a second case plan with the Division agreeing that E.C., Sr., would no longer live in the marital home, that his visitation with his biological children, S.C. (Sara), born August 9, 1996, and E.C., Jr. (Eric), born July 2, 2000, would be supervised, and that I.C. would participate in counseling.

On October 12, 2004, the Division discovered that I.C. permitted E.C., Sr., to move back into the house, claiming that she needed his income, and that without him, her rental assistance and welfare would be jeopardized. On November 19, 2004, the Division was awarded custody of S.M. based on E.C., Sr.'s ongoing physical abuse. From that date forward, services were extended to the family, and E.C., Sr., and I.C. sporadically participated in substance abuse treatment.

On March 1, 2005, I.C. obtained an order restraining E.C., Sr., from returning to the family home. A few months later, on June 6, 2005, a referral was made to the Division that the children were left outside of the home unsupervised and in their pajamas. E.C., Sr.'s supervised visitation with the children was suspended on July 16, 2005, due to his repeated absences.

I.C. underwent a psychological evaluation on September 20, 2005, by Dr. Robert J. Puglia, who concluded that she "did not appear committed to caring for [S.M.] at that time." Dr. Puglia also recommended additional evaluations for I.C. and treatment for the entire family, including Sara and Eric. Thereafter, on December 12, 2005, and January 2, 2006, the Division received reports of domestic violence between E.C., Sr., and I.C. The February 14, 2006 psychological evaluations of E.C., Sr., by Dr. Alan Lee concluded that he was not capable of being an independent caregiver. Additional evaluations, treatment and parenting classes were recommended.

On May 5, 2006, I.C. was arrested for the third time for driving while intoxicated (DWI). That month, Sara revealed to the Division that E.C., Sr., had watched her and Eric on several occasions while their mother was out, despite the existence of a domestic violence restraining order and I.C.'s commitment not to allow E.C., Sr., back into the home. Eric confirmed his sister's statements and added that at times, their mother became drunk and "physically manhandled" him. E.C., Sr., was charged with DWI on May 14, 2006. A few days later, on May 17, 2006, yet another referral was made to the Division based on Eric's unkempt appearance and behavioral issues at school.

E.C., Sr., underwent a psychiatric evaluation on May 19, 2006, by Dr. Alexander Iofin, who referred him to a program for mentally ill chemical abusers and for medication monitoring. Dr. Iofin recommended the cessation of all contact between E.C., Sr., and his children.

The following month, I.C. signed yet another case plan agreeing not to allow E.C., Sr., to enter the home. She tested positive for benzodiazepines on July 14, 2006, and July 24, 2006. Despite her assertion that she was taking prescription medication, she would not sign a release for the Division to review her medical records and did not produce a prescription.

On September 4, 2006, police arrested E.C., Sr., during a domestic dispute between him, I.C., and S.M., while S.M. was on a home visit. Shortly thereafter, on September 13, 2006, I.C. was banned from visiting S.M.'s residential facility due to I.C.'s inappropriate behavior and verbal attacks on the counselors.

The day after Christmas 2006, a Division investigator learned from Eric that I.C. was taking the children to Atlantic City and leaving them unsupervised in a hotel room while she gambled. I.C. also acknowledged that she had incurred a new DWI charge, but claimed that she had not been drinking and was simply tired at the time of the stop.

On January 9, 2007, Sara and Eric were placed in a foster home. The Division had attempted to place the children with a maternal aunt, but she initially declined and was then disqualified because she was living with a man who had a domestic violence charge. I.C. commenced supervised visits every other week at the Division office, but otherwise refused to cooperate with any of the services extended to her. Several hearings were subsequently conducted, although little progress was made. E.C., Sr., was terminated from one substance abuse program, entered another, was not working, and was not residing at a stable address.

At the August 15, 2007 hearing, it was reported that I.C. had started both substance abuse and anger management classes in June. The organization that supervised visitation between I.C. and her children then recommended that visitation occur in a therapeutic setting because of multiple altercations between S.M. and I.C. during visits. At that point in time, Eric and Sara were in the same foster home, but the foster parent had requested that Eric be moved due to adjustment difficulties that he was experiencing.

As of the October 22, 2007 hearing, E.C., Sr., continued in an inpatient rehab program in New York. I.C. was near completion of both anger management and substance abuse treatment and anticipated starting a job. Eric was in a new foster home.

At the trial, which began on February 13, 2008, Stacey Weigandt, a caseworker, appeared as the Division's first witness. I.C.'s counsel objected to Weigandt reading from her case notes. The court overruled the objection, noting that the notes corresponded to the information contained in the Division's complaint, and that Weigandt was using the case file to refresh her recollection.

Weigandt testified about I.C.'s erratic participation in substance abuse, anger management, and other programs. She stated that I.C. had never been employed during Weigandt's involvement with the family. I.C. was then residing in a shelter in New York. E.C., Sr., had not participated in any of the services recommended by the Division, other than submitting to evaluations. Sara was in her second foster placement, and Eric was in his third, a therapeutic foster home due to his behavioral problems. Sara's current family expressed an interest in adopting her and would consider taking Eric once he completed treatment. All of the caseworkers testified about I.C.'s inappropriate conduct during supervised visits, including her verbal abuse of staff and the children's reluctance to interact with her.

The Division's expert witness, Dr. William D. Coffey, a clinical psychologist, conducted evaluations in January 2008 of both I.C. and E.C., Sr. It was his opinion that I.C. has an impulse control disorder, abuses alcohol, and is possibly bipolar. He also opined that she demonstrated antisocial and narcissistic traits. He noted that her behavior had not changed since she was first involved with the Division, and that the services she had completed were not commensurate with her level of need. Additionally, he considered her to suffer from drug and gambling addiction and did not support her reunification with her children until she had completed a minimum of six months of intensive outpatient substance abuse treatment along with a minimum of twenty-four sessions of anger management. He further recommended that only after the completion of those programs should family therapy be considered.

As to E.C., Sr., Dr. Coffey testified that he was living in Manhattan with a girlfriend and was working. E.C., Sr., had reported to Dr. Coffey that he had been sober for fourteen months. Dr. Coffey found that E.C., Sr.'s intellectual functioning was marginal, and that he showed no insight or even superficial understanding of parent-child problems. He described E.C., Sr., as clinically depressed and suffering from a personality disorder with antisocial, narcissistic, and passive-aggressive features. In Dr. Coffey's opinion, E.C., Sr., did not show even minimal potential to assume parenting responsibilities. Although Dr. Coffey found it commendable that E.C., Sr., acknowledged his substance abuse issues and had engaged in treatment, Dr. Coffey doubted the validity of E.C. Sr.'s self-reports.

Dr. Jesse Whitehead testified as I.C.'s witness. He opined that she was unlikely to be abusive toward her children and suffered from no psychopathology. He did find that she suffered from a generalized anxiety disorder and an acute stress disorder and demonstrated narcissistic, compulsive, and obsessive traits. In his opinion, I.C. needed in-depth individual psychotherapy. He found that if possible, it would be in the best interests of the children to reunite with their mother, with whom they are bonded.

In Dr. Whitehead's opinion, I.C. required only six months of therapy, although he did not think reunification would be appropriate until after that time. He considered I.C. to be capable of providing parental guidance and direction. He believed that the children would suffer significantly if separated from I.C., and that particularly with Eric, a serious mental health condition could arise.

I.C. and E.C., Sr., testified on their own behalf. I.C. acknowledged that she had allowed E.C., Sr., back into the home at times, but asserted that it was because he had never physically harmed his children and was very close to Sara. She attributed her failure to obtain employment to her scoliosis and a 1999 felony conviction related to an armed robbery charge. She said that she loved her children and considered herself to be a good mother. Her plan was to reside with the children at the shelter.

E.C., Sr., testified that he had spent approximately five months in various inpatient programs and only left the most recent program because his brother found him a job in construction. He claimed to be currently enrolled in an outpatient substance abuse treatment program and to have been clean and sober for fifteen months.

Claimed Violation of the Hearsay Rule

The first error, defendants assert, was committed by the trial court when it allowed Weigandt to testify by reading from the Division's notes about the family's history prior to her personal involvement with them. Because of the number of different caseworkers that can be involved over time with a family, as well as the sheer volume of information accumulated by the Division in guardianship cases, our rules allow the use of evidence normally excludable as hearsay. In re Guardianship of Cope, 106 N.J. Super. 336, 343 (App. Div. 1969). In fact, Rule 5:12-4(d) explicitly authorizes the Division to submit caseworker reports, as well as reports prepared by professionals, into evidence as business records under N.J.R.E. 803(c)(6) and 801(d). Rule 5:12-4(d) also provides that "[c]onclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal."

Hence, the court's admission of Weigandt's testimony was not error. The caseworker explained to the court that she reviewed the entire record in order to prepare for trial. Additionally, Weigandt compared the records with the guardianship complaint in order to ensure that she could recount the family's complete history with the Division, even though she had not been assigned to the family prior to September 2006. This is precisely the scenario that the rule and the cases anticipate and are designed to address. It is not practical to require each caseworker involved with a family to testify as to matters within their personal knowledge because of the disruption it would cause to the operations of the Division. Cope, supra, 106 N.J. Super. at 343. It is virtually self-evident, therefore, that Weigandt's testimony falls squarely within the intent of the rules. Defendants were free to rebut her testimony and to contradict any statements present in the records about which she testified. Neither parent presented any proof challenging the history of the Division's involvement with the family since 1994.

The Statutory Standard

Pursuant to statute, parental rights can be terminated 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)(1), (2), (3), and (4).]

Our task is to 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)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003), aff'd and remanded, 179 N.J. 264 (2004) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Consideration of the four prongs of the test contained within the statute must be made as a whole. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Defendants claim that if given time, both are able and willing to eliminate any harm facing their children, and that separation from them would cause the children serious and enduring psychological harm. In this manner, they challenge the Division's proof as to the second prong of the statutory test, a parent's willingness to eliminate the harm and provide a safe and stable home for the child. N.J.S.A. 30:4C-15.1(a)(2).

It is noteworthy that even I.C.'s expert did not recommend the immediate return of the children to her. Dr. Whitehead suggested giving I.C. six months of additional treatment, after which she should be reevaluated. He did not explain why an additional six months would have the desired effect despite the number of years of the Division's unsuccessful involvement with the family. As the trial court said, six more months, or even six years, would not achieve the necessary change.

I.C., who was not intellectually impaired, did not become involved in treatment until shortly before the guardianship trial, after years of wasted opportunities in which she could have availed herself of services. In addition, the court properly rejected I.C.'s assertion that placing the children with her in a family-oriented homeless shelter in New York was the equivalent of a safe and stable environment.

The court relied on the State's expert, who opined that neither parent could, for reasons unique to their substance and other addiction issues, as well as their personality disorders, care for their children. While acknowledging the mutual love between the parents and their children, the court noted that no expert found that E.C., Sr., who had not seen his children for more than two years, had any potential to be able to parent his children, or that I.C. had the ability to care for her children consistently.

I.C. seemed oblivious to her children's special needs and was unable to make any substantial changes in her life in order to address them. I.C.'s inability to maintain stable housing in this state was another indication of her inability to follow through in relation to the children. E.C., Sr.'s shortcomings as a parent were described by the Division expert as "markedly pathological." His clinical picture is further complicated by his limited intellectual functioning. He too was unable to offer stable housing at the time of trial, as he lived in a rented room with his current girlfriend and had been employed for less than a month.

Eric and Sara had been in the Division's custody for over a year when the trial ended. "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." 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). There simply is a limit, as the trial court stated, to the amount of time that the Division can spend attempting to reunite a family. The trial court, therefore, did not err in finding that the State met its burden under the second prong of the statutory best interests test.

As to the fourth prong, that termination will not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), defendants object that the trial court applied an improper "better interests" test and stress the children's attachment to their biological parents. Certainly, a "final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). It is a grave loss to a child, and for this reason, "doubts are to be resolved against" the destruction of the relationship. Id. at 16. Because permanence is so important to a child's upbringing, however, it too has to be taken into consideration. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986). To this date, neither parent has demonstrated the parenting skills necessary to reliably care for the children. Neither parent has displayed even the potential to be able to care for the children.

As the experts noted, despite objective proof to the contrary, neither parent seems to understand or is willing to readily acknowledge the extent of their problems. For example, despite I.C.'s four DWIs, she denies that she has ever had a drinking problem. Similarly, E.C., Sr., left an inpatient treatment program when his brother procured employment for him and seemed uncomprehending that the early discharge would hinder his recovery.

 
Termination of parental rights will not do more harm than good in this instance. The State has met its burden by clear and convincing evidence. We concur with the trial court that neither parent has the capability to safely care for the children. Both have been offered services for years and have been generally noncompliant, denying their need for treatment. They have displayed indifference to the need to change in order to avoid the loss of their children. I.C. continued to be both unemployed and homeless, with no real prospect of ameliorating either condition. Although E.C., Sr., had recently obtained employment, his housing situation clearly would be inappropriate for the care of the children whom he had not seen for years prior to trial. In light of these facts, we find that the trial court did not err in its conclusions.

Affirmed.

These fictitious names are used for ease of reference.

(continued)

(continued)

18

A-3654-07T4

RECORD IMPOUNDED

April 1, 2009