STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. I.B.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4224-07T44224-07T4

STATE OF NEW JERSEY DIVISION

OF YOUTH AND FAMILY SERVICES

Plaintiff-Respondent,

v.

I.B.

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF V.B.,

Minor-Respondent.

________________________________

 

Submitted February 23, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-18-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent State of New Jersey Division of Youth and Family Services (Melissa Raksa, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor-respondent V.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

The Division of Youth and Family Services (Division) brought this action, seeking the termination of the parental rights of defendant I.B., the biological mother, and J.A., the biological father, to their daughter, V.B., born January 27, 2006. J.A. executed a voluntary identified surrender of his parental rights on December 20, 2007. He does not appeal. Following a non-jury trial, Judge Strelecki rendered an oral decision and entered judgment in favor of the Division terminating defendant's parental rights to V.B. On appeal, defendant raises the following contentions:

POINT I

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DEFENDANT'S RIGHT TO A PROPERLY CONDUCTED ADJUDICATIVE HEARING WAS VIOLATED (NOT RAISED BELOW).

(A)

TESTIMONY ELICITED FROM THE DIVISION'S WITNESSES CONCERNING THE DEFENDANT'S PURPORTED MENTAL HEALTH DISORDERS WAS INCOMPETENT AND INADMISSIBLE (NOT RAISED BELOW).

(B)

THE TRIAL RECORD DOES NOT REFLECT WHEN THE DIVISION'S PREMARKED EVIDENCE PACKAGE WAS ADMITTED INTO EVIDENCE.

POINT II

THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT APPLIED AN IMPROPER "BETTER INTERESTS" ANALYSIS THAT WAS CONTRARY TO THE STATUTORY CRITERIA OF THE "BEST INTERESTS" TEST.

(A)

THE DEFENDANT DID NOT "HARM" V.B. UNDER THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.

(B)

THE DEFENDANT WAS NOT PARENTALLY "UNFIT" UNDER THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.

(C)

THE DIVISION DID NOT MAKE "REASONABLE EFFORTS" TO CONSIDER ALTERNATIVES TO TERMINATION UNDER THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.

(D)

TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD UNDER THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.

We reject these contentions and affirm.

The following facts are summarized from the record. There was a history of domestic violence between defendant and J.A. prior to the Division's involvement with the family. On July 3, 2006, the Division received a referral that defendant was involuntarily committed to the psychiatric unit of the Kimball Medical Center after attempting to stab J.A. during an argument, which occurred in the home of the maternal grandmother, M.B., with whom defendant, J.A. and V.B. were living. Defendant was diagnosed as having Intermittent Explosive Disorder, ADHD and Depressive Disorder NOS. She was placed on Depakote and Effexor during her hospitalization. At trial, defendant's hospital records were admitted into evidence without objection.

The Division received another referral on July 6, 2006, from the Lakehurst Police Department that J.A. was arrested after becoming angry and punching a wall at M.B.'s home. Due to the two instances of domestic violence, which had occurred in V.B.'s presence, the Division removed the child from M.B.'s home and placed her in foster care. After M.B. obtained a restraining order against J.A., the Division placed the child back with her. In the meantime, after defendant's discharge from the hospital, she moved to Connecticut to live with her mother, E.M. Defendant did not follow up on treatment the hospital recommended.

On September 7, 2006, M.B. advised the Division that as the result of a "very irrational" phone call from defendant, she wanted the Division to supervise defendant's future visits with V.B. at the Division's office. The Division then arranged supervised visits and gave defendant a bus pass. However, from August 2006 to June 2007, defendant only visited V.B. three times, and she completely stopped visiting the child after June 2007.

The Division began offering services to defendant in an attempt to reunify her with V.B. It referred her for anger management, parenting skills and domestic violence classes and for a psychological evaluation.

On December 18, 2006, defendant attended a psychological evaluation with Lori Lessin, Ph.D. to assess her overall psychological functioning and competency to parent. Defendant was living with E.M. in Connecticut at the time. She "suggested that the only reason she lost custody of [V.B.] was because she did not appear at a court hearing, blaming her failure to appear on poor advice from a [Division] caseworker." However, testing revealed that defendant "did not take responsibility for her current circumstances and presented herself in as favorable [a] manner as possible."

Dr. Lessin emphasized that defendant "demonstrated minimal insight and took no responsibility for her present circumstances, and described herself as a victim of [J.A.'s] abuse." The doctor also emphasized that defendant denied any mental health problems despite her involuntary commitment and psychiatric diagnoses. The doctor concluded that because defendant did not take responsibility for her behavior, "it would not be possible for her to affect necessary changes in her life to be more protective of her daughter, if she did not see that any changes were needed." The doctor did not recommend reunification. She recommended that defendant have a psychiatric evaluation and engage in individual counseling with a clinician experienced in domestic violence and parenting classes. The doctor also suggested that if defendant was compliant with services, the Division should explore whether or not to approve E.M. to supervise weekend visits between defendant and V.B. at E.M.'s home in Connecticut.

The only plan defendant offered was placement of V.B. with her in E.M.'s home, where defendant lived. Accordingly, the Division requested an Interstate Compact Home Assessment by the Connecticut Department of Children and Families (DCF). Defendant admitted that she failed to comply with the home assessment and failed to respond to DCF's repeated requests for compliance. Also, defendant had not complied with services the Division offered and had not visited V.B. As a result, DCF was "unable to recommend that [V.B.] be returned to [defendant]."

The Division continued offering defendant parenting, domestic violence and anger management classes, but she never complied. She also failed to attend a psychological re-evaluation and a bonding evaluation, and she stopped visiting V.B. as of June 2007. She also failed to appear at court hearings or to keep in contact with the Division.

On March 26, 2007, M.B. advised the Division that because of several unfounded allegations of abuse lodged against her, and because she did not wish to become a licensed relative caretaker, she would not continue to care for V.B. She provided names of relatives, including F.W. and A.W. (the "Watsons"). Because defendant was still non-compliant, V.B. could not be placed with her. Thus, on or about June 25, 2007, the Division placed V.B. with the Watsons, who want to adopt her.

The trial began on March 27, 2008. Defendant testified about the various places where she allegedly lived during her involvement with the Division. After her discharge from the hospital, defendant lived with E.M. in Connecticut; she returned to New Jersey and lived with J.A. until further instances of domestic violence occurred; she returned to Connecticut and lived with a boyfriend and his mother for six or seven months; and she was living with her godmother in Connecticut for about four months. However, defendant never provided an address other than E.M.'s address. The judge found lacking in credibility of E.M.'s testimony that defendant did not live with her at the time of the Interstate investigation.

Also, defendant was five months pregnant at the time of trial, she was unemployed, her godmother paid most of the bills, and defendant "help[ed] out" by doing "little jobs here and there[,]" such as hair-braiding, painting murals and babysitting. Defendant also had no concrete plan for V.B., except to seek the State of Connecticut's assistance for V.B.'s care. Defendant also claimed to be taking parenting classes, but admitted she had not started anger management classes.

As for V.B., evidence revealed that she is doing well in the Watsons' home, that the Watsons "adore" her, "consider her their daughter", and "are committed to her for a lifetime[,]" and that V.B. appears to have bonded to them.

After a two-day bench trial, Judge Strelecki concluded that the Division had proven all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. She relied on a number of factors, including defendant's transience and failure to keep in contact with the Division; her lack of stable housing and inability to support and care for herself; her failure to comply with services; her failure to comply with the Interstate investigation; her failure to take responsibility for and correct her situation; her failure to visit V.B.; and her failure to provide a plan or safe and stable home for V.B. or to provide the child with any parental attention, care and support. The judge also found that V.B. is in a safe and stable environment with relatives who want to adopt her.

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." New Jersey Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We "defer to the factual findings of the trial court because it ha[d] the opportunity to make first-hand credibility judgments" and it also had a "'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should [we] intervene and make [our] own findings to ensure that there is not a denial of justice." Ibid. (quoting N.J. Div of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

Based upon our careful review, and in light of the arguments presented, we conclude that the record contains clear and convincing evidence to support Judge Strelecki's findings. We also conclude that the judge applied the correct legal standards to the facts she found in ultimately concluding that the Division proved all four statutory prongs, and that termination was required. Accordingly, we discern from the record no sound reason for disturbing the judge's findings and affirm substantially for the reasons expressed in her oral opinion.

Affirmed.

Dr. Lessin was the Division's expert at trial. Defendant presented no expert countering the doctor's testimony.

This name is fictitious.

Footnote continued on next page.

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A-4224-07T4

RECORD IMPOUNDED

March 23, 2009