NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.M. and J.E.H., Sr.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5049-06T44274-07T4

A-6038-07T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.M. and J.E.H., Sr.,

Defendants-Appellants.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF Y.M.,

a minor.

_______________________________

 

Submitted February 9, 2009 - Decided

Before Judges R. B. Coleman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-122-07.

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

Yvonne Smith Segars, Public Defender, attorney for appellant J.E.H., Sr. (Brian Donnelly, Designated Counsel, of counsel and 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 minor Y.M. (Phyllis G. Warren, 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 defendants C.M., the biological mother, and J.E.H., the biological father, to their daughter, Y.M. (Yolanda), born January 29, 2006. Following a non-jury trial, Judge Donaldson rendered a written decision and entered judgment in favor of the Division. On appeal, C.M. and J.E.H. challenge the judge's conclusion that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1a. We affirm.

The following facts are summarized from the record. In addition to Yolanda, C.M. and J.E.H. are the biological parents of another daughter, L.M.H. (Lisa), born November 16, 2003. C.M. is also the biological mother of two other children, M.A.M. (Michael), born December 2, 1998, and J.E.H., Jr. (James), born October 16, 2004. On February 22, 2006, C.M.'s parental rights to Lisa, Michael and James were involuntarily terminated; and J.H. voluntarily surrendered his parental rights to Lisa.

The Division became involved with C.M. in September 2001, after receiving a referral that her one-year-old niece, who was in her care, suffered second-degree burns to the lower half of her body by scalding water in a bathtub. C.M.'s then-husband was convicted of aggravated assault and incarcerated as a result of this incident. There were also issues of domestic violence between C.M. and her husband. The Division removed the niece and Michael, who also was in C.M.'s care, from the home and obtained custody of them.

A psychological evaluation on January 30, 2002, revealed that C.M.:

[L]acks impulse and is covertly hostile and aggressive towards others. She accepts responsibility for her poor judgment and consequent behavior, with regard to allowing domestic violence to continue, although she appears helpless as to change the situation. Her parenting skills are within the low average range, although she is not assertive in her ability to protect her children from themselves or others.

It was recommended that C.M. engage in intensive individual therapy and parenting skills training, and become involved in a program for battered women. The Division returned Michael and the niece to C.M. after she completed parenting skills classes and domestic violence counseling.

In September 2002, the Division again became involved with C.M. after receiving a referral that she physically and verbally abused Michael. She allegedly punched Michael in the back, took him to a store in his underwear and without shoes, and made him walk on broken glass. C.M. agreed to attend Genesis counseling to address her parenting skills.

C.M. began living with J.E.H., who had a history of violent behavior, regular drug use and selling drugs. In September 2003, the Division received a referral from a hospital that J.E.H. had physically abused Michael. On October 23, 2003, the Division removed Michael from the home, obtained custody of him, and placed him with the maternal grandmother. The Division later obtained custody of Lisa after that child's birth on November 16, 2003, and placed her into a foster home. Thereafter, the Division offered numerous services to C.M. and J.E.H.

Facts Relating to C.M.

C.M. was initially non-compliant with the services the Division offered, but eventually complied with most of the Division's recommendations. She attended a psychological evaluation on January 13, 2004, which revealed that she had an IQ of 76, "indications of emotional dysfunction namely impulsivity and anxiety[,]" "a strong tendency towards non-compliance[,]" "a relatively high level of anger that she, at times, has a difficult time controlling[,]" and that she

has a poor grasp of sound parenting principles and practices and a poor understanding of normal child development. She showed evidence of a tolerance for corporal punishment and inappropriate expectations of children. There was also a low level of empathy for children. This is particularly poor since [C.M.] informed [the psychologist] that she had completed Parenting Skills training. These areas of parenting skills deficits are not inconsistent with physical abuse of children.

It was recommended that C.M. have further parenting skills training and individual therapy to deal with her anger-related issues. On June 8, 2004, C.M. was diagnosed as having dysthymic disorder, with brief episodes and multiple periods of remission, and explosive personality disorder.

In September 2004, the Division returned Michael and Lisa to C.M., placed the family in the Mother/Child Residential Services program, and continued supervising the family. On October 16, 2004, C.M. gave birth to her third child, James. The Division placed James with C.M.

Beginning in January 2005, issues arose about C.M.'s ability to care for the three children. The Division had received reports from the Mother/Child Residential Services program that C.M. left the children alone and improperly disciplined them. Also, C.M. had sustained injuries as a result of an altercation with J.E.H. The Division instructed C.M. to keep the children away from J.E.H. C.M. refused to do so. As a result, on February 7, 2005, the Division removed the children from C.M.'s care and placed them into foster homes. C.M. became violent during the removal and was arrested for assaulting a police officer. On February 9, 2005, C.M. was terminated from the Mother/Child Residential Services program.

C.M. attended another psychological evaluation on March 17, 2005, which revealed that she was

functioning within the borderline range of intelligence. This factor alone would not disqualify her from providing adequate care and protection for her children. But this limitation is exacerbated by her depressive and acting-out (assaultive) tendencies, poor judgment and finally the projection of accountability onto agencies and individuals who do not play a significant role in the parenting process. Her ability to learn both cognitively and psychologically from her past experience does not speak strongly to her potential to develop the attributes, foster the energy, benefit from further parenting techniques and develop the necessary personal qualities necessary to provide adequate care to her children and successfully reunite with her children.

C.M. was diagnosed as suffering from borderline intellectual functioning, dysthymic disorder and personality disorder not otherwise specified with avoidant, schizoid, and paranoid features. It was recommended, among other things, that she undergo a psychiatric evaluation and engage in weekly individual therapy.

C.M. attended a psychiatric evaluation on April 29, 2005, which revealed that she suffered from major depression, recurrent, with psychotic features, borderline personality with traits of chronic feelings of emptiness, chaotic interpersonal relationships, and dyscontrol of anger. Continued individual therapy was recommended, along with medication for depression and anxiety.

C.M. attended individual therapy from April to September 2005. Because of her positive progress and her report to her treating psychologist that she had ended her relationship with J.E.H., the psychologist initially recommended reunification with her children. However, C.M. began sporadically attending therapy and surreptitiously resumed her abusive relationship with J.E.H., who beat her so violently on one occasion that she suffered injuries requiring hospitalization. As a result, her psychologist recommended that reunification not occur. He opined that "[C.M.'s] lack of judgment, credibility, and intent to deceive have raised serious questions as to whether she has in fact made gains therapeutically or has just become more sophisticated in her presentation."

A psychotherapy update on February 1, 2006, indicated that:

[C.M.] lacks the dedication, psychological wherewithal, emotional maturity, and willingness to sacrifice her own interests in the interest of her children. Her prognosis for achieving these goals is restricted by severe deficits in character and a decidedly narcissistic personality orientation that are likely to be resistant to treatment, regardless of the nature and duration of that treatment.

Yolanda was born on January 29, 2006. On February 2, 2006, the Division obtained custody of Yolanda and placed her with her present foster parents, who want to adopt her. C.M. remained non-compliant with services the Division had offered and she continued her abusive relationship with J.E.H. As a result, C.M.'s parental rights to Michael, Lisa and James were involuntarily terminated. J.E.H. voluntarily surrendered his parental rights to Lisa.

C.M. attended another psychological evaluation on April 8, 2006, to determine if she could competently parent Yolanda. The evaluation revealed that C.M.

has a general lack of understanding of children's developmental needs. Her parenting attitudes and beliefs are contrary to raising stable, independent children. Indeed her parenting style is emotionally harmful to children.

[C.M.'s] lack of insight and poor judgment is indicated by the fact that she had another child with [J.E.H.] while there was a restraining order in place. Her use of denial and repression is indicated by her verbalization that she is trying to 'get my kids back' when her parental rights have already been terminated.

. . . .

[C.M.] is not capable of raising children appropriately. In fact, her parenting style is harmful to children.

Reunification with Yolanda was not recommended.

Although the Division filed a guardianship action on May 11, 2006, it continued offering C.M. services. C.M. complied and began making progress. On November 20, 2006, she attended a psychological and bonding evaluation with Ronald S. Gruen, Ed.D. At that time, she was in a positive relationship with a new boyfriend, had a job, had improved her life and expressed a commitment to Yolanda. Although the psychologist concluded that there "is an acquaintanceship relationship between [C.M. and Yolanda], but no significant psychological bond at this time[,]" and that "[Yolanda] would not suffer emotionally if contact with her birth mother [was] permanently severed[,]" he suggested that C.M. have another chance at reunification and recommended delaying the guardianship action for six months to "see what happens."

As a result of this recommendation, in January 2007, the Division dismissed the guardianship action without prejudice, attempted to reunify Yolanda with C.M., and provided services to achieve that goal. J.E.H. agreed to this plan and offered no other alternative.

Unfortunately, C.M.'s progress was short-lived. Among other things, she moved without notifying the Division; she stopped regularly attending the Center for Family Services; she did not secure child care for Yolanda while she went to work; she did not apply for welfare for the child as instructed by the Division; and she could not pay her rent. The Division also received a report that C.M. took Yolanda to see J.E.H. against the Division's instruction, that she allowed her sister to smoke marijuana in the child's presence and that she was not properly caring for the child.

As a result of C.M.'s non-compliance, on April 13, 2007, the Division re-instituted the guardianship action. C.M. then ceased visiting Yolanda and gave up all efforts at reunification. Dr. Gruen re-evaluated C.M. on May 31, 2007. He testified that C.M. had "regressed" and that her relationship with Yolanda was "[g]one with the wind[.]" He concluded that "[C.M.] was back to her same old [self] and that things really hadn't changed too much" and that C.M. "was not committed to [Yolanda]." The doctor also concluded that:

[Yolanda] has been in foster care for most of her young life, and [C.M.'s] progress has been inconsistent and is likely to remain so. I do not see any benefit to the child to continue her life in limbo. Therefore, I recommend termination of parental rights as in the best interests of this young child.

The doctor made an appointment to re-evaluate C.M. in January 2008. C.M. did not appear for the re-evaluation.

Facts Relating to J.E.H.

Although C.M. had indicated that J.E.H. could be Yolanda's biological father, he denied paternity, refused paternity testing, and absented himself from the litigation. J.E.H. only submitted to a paternity test when faced with a court order threatening an arrest warrant. The paternity test, dated November 1, 2006, revealed that he is Yolanda's biological father. J.E.H. did not seek visitation with the child until six months after the date of the test results. The court denied his request without prejudice. He never renewed his request for visitation, never inquired about the child's well-being, and never made plans for reunification with her. J.E.H. only saw his daughter twice since her birth: once at the paternity test and once at a court hearing.

J.E.H. did not comply with the services the Division arranged, except he attended a psychological evaluation on January 16, 2004, which revealed a history of using and selling drugs, periods of incarceration on drug-related charges, a volatile relationship with C.M., and unmanageable and antisocial behaviors as a youth. It was recommended that J.E.H. participate in parenting classes, have supervised visits with Yolanda, and attend a substance abuse evaluation.

J.E.H. also attended a psychiatric evaluation on June 13, 2004, which revealed that he had been incarcerated for aggravated assault and had pending drug-related criminal charges. J.E.H. admitted his drug use and was diagnosed as suffering from a long history of drug dependence (marijuana and cocaine) and a history of drug abuse and conduct disorder. It was recommended that J.E.H. become involved in an anger management program, parent training, drug treatment and a work training program. J.E.H. failed to attend a substance abuse evaluation. He also failed to attend anger management and work skills training.

Dr. Gruen evaluated J.E.H. in October 2005, and found that he was an "angry man," "damaged by his childhood," who "never finished school," "sold drugs on the street," used drugs for a long period of time, and engaged in a great deal of domestic violence with C.M. Dr. Gruen concluded that J.E.H. was "a loose cannon, you know, very angry, bristles very quickly, easily hurt and insulted, quick to anger, unpredictable behavior, emotionally labile, anti-social traits, negativistic attitudes. Generally kind of a depressed angry guy."

Dr. Gruen re-evaluated J.E.H. on January 10, 2007, to determine his ability to parent Yolanda. The doctor found that J.E.H. had no regular employment, he paid no child support for Yolanda, he did not request visits with the child, he did not know the child's birth date or how to spell her name, and he did not complete parenting classes. The doctor also found that J.E.H. had not been involved in any drug rehabilitation or anger management program, had no psychotherapy, and was "barely taking care of himself, and is not able psychologically or in any other way to parent his children responsibly." The doctor concluded that "little, if anything, has changed in the life of [J.E.H.] over the past year[,]" and that:

[J.E.H.] has a history of unstable interpersonal relationships and has not taken care of any of his children. He has a history of criminal behaviors and numerous incarcerations. At this time, he also appears depressed and resigned.

I agree with him that at this point he has nothing to offer [Yolanda]. He will not voluntarily surrender his parental rights to her because of selfish reasons.

As a dually diagnosed client (Emotional Maladjustment and Substance Abuser) it is my opinion that the best interests of [Yolanda] will be served by termination of [J.E.H.'s] parental rights.

Dr. Gruen re-evaluated J.E.H. on January 17, 2008. Although J.E.H. had improved, he was in the early stages of drug rehabilitation and recovery, he had no job and little prospect for employment, and he never had any parenting responsibilities. Also, J.E.H. still did not know Yolanda's birth date or the correct spelling of her name. The doctor concluded that J.E.H. was "ill-prepared to assume responsible care for [Yolanda] . . . [and] needs to focus on his own rehabilitation and his own welfare. From a pragmatic standpoint, it appears too little and too late for [J.E.H.] to assume the care of [Yolanda]." Dr. Gruen did not conduct any bonding evaluation between J.E.H. and Yolanda because J.E.H. had only seen the child twice and never had a relationship with her.

Facts Relating to Yolanda and Her Foster Parents

Dr. Gruen conducted a bonding re-evaluation between Yolanda and her foster parents on January 15, 2008. The doctor concluded that Yolanda was thriving in the foster parents' home, which is "the only home that she has ever known," that the foster parents were the child's functional and psychological parents, and that removing the child from their home after two years "would likely result in significant and enduring psychological harm." The doctor also concluded that Yolanda would be at risk if returned to her biological parents and would be subject to abuse and neglect. The doctor further concluded that Yolanda would not suffer any serious and long term harm if C.M's and J.H.'s parental rights are severed.

After a two-day bench trial, Judge Donaldson issued a detailed 33-page written opinion on March 31, 2008. After making extensive findings of fact and conclusions of law, the judge found by clear and convincing evidence that the Division had satisfied N.J.S.A. 30:4C-15.1a(1), (2), (3) and (4).

Our review of a trial judge's findings is a limited one. N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). "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 also must defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). We will reverse only if we are convinced the trial judge's factual findings and legal conclusions "'are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Z.P.R., supra, 351 N.J. Super. at 433 (quoting Fagliarone, supra, 78 N.J. Super. at 155).

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and the conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)), rev'd on other grounds, 189 N.J. 261 (2007). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 484). However, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." Z.P.R., supra, 351 N.J. Super. at 434 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Based upon our careful review of the record, we are satisfied that there is clear and convincing evidence supporting Judge Donaldson's finding that the Division satisfied each prong of N.J.S.A. 30:4C-15.1a. We are also satisfied that the judge properly applied the law. We affirm substantially for the reasons expressed by Judge Donaldson in her comprehensive, well-written and well-reasoned opinion.

Affirmed.

We use fictitious names for all of the children mentioned in this opinion to avoid confusion.

Dr. Gruen was the Division's expert at trial. C.M. and J.E.H. presented no counter expert testimony.

J.E.H. had relapsed in December 2007.

Footnote continued on next page.

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A-4274-07T4

RECORD IMPOUNDED

March 13, 2009