NEW JERSEY DIVISION OF YOUTH & FAMILY SERVICES v. J.O.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5476-07T45476-07T4

NEW JERSEY DIVISION OF

YOUTH & FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.O.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF

J.C.,

A Minor.

________________________________

 

Argued March 23, 2009 - Decided

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-176-07.

Carleen M. Steward, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Steward, on the brief).

Eva M. Serruto, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Serruto, on the brief).

Melissa R. Vance, Assistant Deputy Public Defender, argued the cause for the minor (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Vance, on the brief).

PER CURIAM

Defendant J.O. appeals from a May 5, 2008 judgment of the Family Part terminating her parental rights to her child J.C. and granting guardianship of the child to the Division of Youth and Family Services (DYFS). We affirm.

These are the relevant facts adduced at trial. DYFS first became involved with this family on April 29, 2006, following a referral from the police department. J.O., herself, was known to DYFS from services provided to her as a child. The referral was based on police and Emergency Medical Services response to an anonymous report that an infant at defendant's address was not breathing. The infant, A.C., was pronounced dead by hospital personnel at 3:04 a.m. DYFS immediately commenced an investigation. Lieutenant Musso of the Jersey City Police Department, who initially observed the residence at the time of the incident, reported that the apartment had no electricity, the home was "chilly," and there were no appliances except for a small dorm-sized refrigerator powered by an extension cord running to a neighboring apartment. There was no furniture in the apartment, the children had very little clothing and there was minimal food in the home. A.C. was reportedly found in a small playpen beside a sleeping ten-month-old J.C., both wearing only diapers, and three-year-old, I.M., was found sleeping naked underneath a blanket on a small mattress on the floor. Both J.O. and W.C. were unemployed at the time and living on public assistance.

The Medical Examiner determined that A.C. died from blunt force trauma to the head with subdural hemorrhage, also known as "shaken baby syndrome." W.C. admitted to the authorities that he had thrown a baby bottle at A.C., hitting her in the head. W.C. also admitted to hitting A.C. and shaking her in the past. Additionally, a post-mortem examination revealed that A.C. had a broken rib in the process of healing. In a post-incident interview, a DYFS caseworker reported:

[J.O.] stated she knows the bottle hit the baby because [the baby] was crying and then the baby's cry changed as thought [sic] something happened. [J.O.] stated she asked [W.C.] if he did something to the baby and he stated the Bitch did not want to take her bottle so he threw the bottle at her.

Upon questioning of J.O. regarding the abuse of A.C. and why no medical help was sought for her, J.O. told the caseworker "she was not responsible for the baby and told everyone from the beginning she wanted no part in raising or caring for her." DYFS substantiated neglect by W.C. and J.O. for failing to provide basic needs to the three children. I.M. and J.C. were placed in the care and custody of J.C.'s paternal grandfather and his live-in paramour. I.M. was later permanently placed with his biological father.

W.C. was taken into custody and charged with aggravated manslaughter, endangering the welfare of a child and child abuse. He pled guilty to aggravated manslaughter and was sentenced to a term of twelve years. J.O. was arrested May 1, 2006, and eventually pled guilty to endangering the welfare of a child, and child neglect. J.O.'s sentence was 218 days in jail and two years probation. She was released on December 4, 2006.

An order to show cause was filed on May 2, 2006. The return date was scheduled for June 14, 2006, and the judge reserved decision regarding visitation in jail. On June 14, 2006, DYFS withdrew its requests for a psychological evaluation of J.O. and began exploring terminating her parental rights. Initially, J.O.'s defense attorney advised her not to comply with any of the Division's recommendations due to the criminal endangerment charges.

On June 16, 2007, DYFS was advised by the Union City Police Department that J.O. was arrested for drug possession with intent to distribute. Those charges were eventually dropped. From April 30, 2007 through December 2007, J.O. violated her probation by failing to report on nine occasions.

J.O's responsiveness to DYFS was not positive. DYFS was not able to schedule supervised visitation until November 2007. Thereafter, J.O. attended only six out of thirteen scheduled visits with J.C. DYFS also scheduled psychological evaluations on seven occasions, and J.O. failed to attend. J.O. did attend a bonding and psychological evaluation on December 18, 2007, and January 29, 2008. She told the psychologist, Dr. Iser, that she had "nothing to talk about" and refused to take part in some of the psychological tests. Dr. Iser conducted the bonding evaluation, and although he observed that J.O. hugged and kissed J.C., "there was no reciprocity of affection on his part." Dr. Iser concluded in his recommendation:

Based on [J.O.'s] exhibited behavior, I believe that her actions are not consistent with those of a mother who wishes to be reunited with her child. I recommend that [J.O.] undergo Intensive Psychotherapy with a licensed clinical psychologist and address issues regarding her neglect of [A.C.], her subsequent death, and additionally address her genuineness in attempting to gain custody of [J.C.].

J.O. obtained a psychological expert, Dr. Marc Friedman, in preparation for trial. Dr. Friedman found that a bond did exist between J.O. and J.C. In his report, Friedman recommended that J.O. not have custody of J.C. at the present time, and that she be evaluated by a psychiatrist for anti-depressant medication. Friedman recommended that J.O. undergo at least a year of psychotherapy before any attempt was made to reunite her with her child.

On March 27, 2007, the judge entered a permanency order closing the abuse and neglect litigation and ordering DYFS to file a guardianship complaint by May 21, 2007. On May 22, 2007, the guardianship proceeding commenced, and an order to show cause was filed.

On February 4, 2008, W.C. surrendered his parental rights to J.C. Following a trial, Judge DeCastro rendered her written decision on May 5, 2008, terminating J.O.'s parental rights as to J.C. After an unsuccessful motion for reconsideration, this appeal followed.

On appeal, J.O. argues that DYFS failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1. She further asserts that the trial judge failed to make adequate findings of fact or conclusions of law to support her conclusion that J.O.'s parental rights should be terminated. In considering her arguments, we first state the basic principles that inform our decision.

"Parents have a fundamental constitutional right to raise their children." N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 261 (App. Div. 2002). However, such right is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). Rather, parental rights are "tempered by the State's parens partiae responsibility to protect the welfare of children." Id. at 347 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best interest of the child standard governs this balance and has been codified in N.J.S.A. 30:4C-15.1. Ibid. A court may terminate parental rights when the Division shows 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)-(4).]

These "four criteria . . . are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

Termination of parental rights is a significant state action that permanently severs "the relationship between children and their biological parents." J.C., supra, 129 N.J. at 10. When biological parents oppose the termination of parental rights, "the court's function will ordinarily be to decide whether the parents can raise their children without causing them further harm." Ibid. The considerations involved in this inquiry are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (internal quotation omitted).

Notably, the best interests standard is applied in light of "New Jersey's strong public policy in favor of permanency." Id. at 357. Accordingly, "[i]n all . . . guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." Ibid. In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child, . . . before any delay in permanent placement becomes a harm in and of itself.'" N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (citing N.J.S.A. 30:4C-15.1(a)(2)); J.C., supra, 129 N.J. at 10.

The constitutional liberty interest of a biological parent in "the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. at 1388, 1395, 71 L. Ed. 2d 599, 606 (1982). "When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures." Id. at 753-54, 102 S. Ct. 1395, 71 L. Ed. 2d at 606.

Finally, the burden of proof in a guardianship case is by clear and convincing evidence. In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001).

Defendant first contends that DYFS did not present evidence that J.O., herself, had ever harmed her children. Defendant further contends that the inadequate home conditions, at the time of removal, were improperly considered by the trial judge, and J.O.'s lack of cooperation with DYFS was due to instruction from her criminal defense attorney.

For the first prong of the best interests standard, the judge must consider the harm that arises from the child-parent relationship. K.H.O., supra, 161 N.J. at 348. In this context, harm refers to "the endangerment of the child's health and development resulting from the parental relationship," and it may constitute one egregious harm or "the effect of harms" over time. Ibid. It also includes the risk for future harm. A.G., supra, 344 N.J. Super. at 440 (citing N.J.S.A. 30:4C-15.1(a)).

Accordingly, a judge does not have to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 615 (1986) (emphasis added). Indeed, "[t]he absence of physical abuse or neglect is not conclusive on the issue of custody. The trial judge must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R., 155 N.J. Super. 186, 194-195 (App. Div. 1977) (citations omitted). N.J.S.A. 30:4C-15(c) speaks to the "best interests of any child," which relates to the environment to which the child would be returned, and "not simply the presence or absence of culpable fault on the parents' part." Id. at 194-95.

Here, J.O. did not feel responsible for her children's basic needs such as providing a safe and habitable living arrangement. Tellingly, J.O. told the caseworker "she was not responsible for the baby [A.C.] and told everyone from the beginning she wanted no part in raising or caring for her." Critically, J.O. knew her children were subject to abuse. In a post-incident interview, a DYFS caseworker reported:

[J.O.] stated she knows the bottle hit the baby because [the baby] was crying and then the baby's cry changed as thought [sic] something happened. [J.O.] stated she asked [W.C.] if he did something to the baby and he stated the Bitch did not want to take her bottle so he threw the bottle at her.

The baby, A.C., had been hit and shaken on prior occasions and she had a broken rib in the process of healing. Additionally, old and new "marks" were found on J.C. that could not adequately be explained. J.O. was aware of at least some of these acts of abuse but did nothing to prevent the abuse or to provide medical care to A.C. when she knew the child had been hit in the head. In severing J.O.'s parental rights, Judge DeCastro found:

Here, defendant caused harm to another of her children, A.C., by failing to protect her, resulting in the child's death. Consequently, due to her incarcerat[ion] she was unable to provide a safe and stable home for J.C. In addition, because she failed to keep in contact with the Division her inability to provide for her son has lasted for more than twenty-four months. Therefore their relationship has been harmed.

Moreover, the mother was substantiated for abuse and neglect for failing to provide suitable housing, food, and sleeping arrangements for her children.

We are satisfied that DYFS established the elements of prong one by clear and convincing evidence.

J.O. contends that she is able and willing to provide a safe and stable home for her children, and DYFS failed to establish the elements of prong two. J.O. further claims that DYFS failed to provide her with the psychiatric treatment she needed to "turn her life around."

The second element of the best interests standard "relates to parental unfitness," which "may be established in several ways[,]" including: (1) "the parent is 'unwilling or unable to eliminate the harm' that has endangered the child's health and development"; (2) "the parent has failed to provide 'safe and stable home for the child'" and (3) "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C:15.1(a)(2)). This element "may be met by indications of parental dereliction and irresponsibility, such as the parent's . . . inability to provide a stable and protective home," and "the withholding of parental attention and care." Id. at 353.

"Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." A.G., supra, 344 N.J. Super. at 438 (citing In re P.S., 315 N.J. Super. 91, 121 (App. Div. 1998)). Both federal and state law acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. den., 180 N.J 456 (2004). As federal and state public policy increasingly focused on a child's need for permanency, the emphasis "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citations omitted). That is because "[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." Ibid. In Matter of Guardianship of A.A.M., 268 N.J. Super. 533 (App. Div. 1993), we concluded that the mother's "inability to control her behavior in any meaningful way, which ha[d] continued for years after [the child's] birth, clearly show[ed] that she lack[ed] the ability to eliminate that harm." Id. at 547.

In order to establish the elements of this prong, DYFS must establish that the "child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348 (citing N.J.S.A. 30:4C-15.1(a)(2)). That inquiry must determine whether the parent has "cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Ibid. (citations omitted). To meet its burden under the best interests standard, DYFS must establish that the parent is unable or unwilling to provide a safe, stable home for the child, and that further delay in permanent placement adds to the child's harm. Id. at 348-49 (citing N.J.S.A. 30:4C-15.1(a)(2)).

In the present case, A.C.'s death was ruled a homicide resulting from one or more known acts of physical abuse. J.O. knew of the physical abuse A.C. had sustained, but yet she did nothing. J.O. reasoned that "she was not responsible for the baby and told everyone from the beginning she wanted no part in raising or caring for her." In light of the old and new marks on J.C., only nine months older than A.C., which were not adequately explained, it is reasonable to presume similar abusive acts occurred with this child as well.

Judge DeCastro found that J.O. continues to be unable and unwilling to provide a safe and stable home for J.C. She said:

Defendant's argument that the Division failed to provide her with a psychological examination early in the case, which would have diagnosed her severe depression and allowed for treatment is without merit. The Division scheduled seven psychological examinations and she failed to attend. The most recent one she attended but refused to cooperate with the evaluator.

J.O.'s expert, Dr. Friedman, opined that J.O. needs medication and a year of psychotherapy and should then be re-evaluated as to reunification with her son. In finding DYFS had met its burden as to the second prong, Judge DeCastro based her decision on evidence and expert opinions, which showed it is "highly improbable that the child can be safely reunified with his mother in the foreseeable future." J.C. has already been in his foster placement, with his paternal grandfather, for two years. Even if J.O. were willing to receive treatment, which the record indicates she is not, it would be a minimum of another year before reunification could be considered.

J.O. has not shown a willingness to correct the harm caused to J.C. or to provide him with a safe and stable home environment. On June 16, 2007, six months after J.O. was released on the child endangerment sentence, J.O. was arrested on a charge of possession of heroin with intent to distribute. J.O. violated her probation by failing to report on nine occasions from April through December of 2007.

DYFS met its burden under prong two as the continuing harm to J.C. is the lack of a permanent placement in a stable home. Our Supreme Court has recognized the central goal of restoring the family unit; however, it has also cautioned "that placement plans must not lose sight of time from the perspective of the child's needs." K.H.O., supra, 161 N.J. at 357 (1999). J.C.'s own rights must be considered which include "the right to a permanent, safe and stable placement." C.S., supra, 367 N.J. Super. at 111.

Defendant next contends that DYFS failed to make reasonable efforts to allow J.O. to participate in the case plan for her son. Defendant further contends that DYFS failed to provide J.O. with appropriate services including parenting classes, finding employment, finding housing or providing her with rent assistance.

The third element of the best interest test "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 in foster care." K.H.O., supra, 161 N.J. at 354. Such efforts must include, "so far as practicable . . . welfare services to support and maintain the integrity of the family as a living unit." A.W., supra, 103 N.J. at 608 (internal quotations omitted). As part of this inquiry "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably" to unify the family. A.G., supra, 344 N.J. Super. at 434-35 (citing N.J.S.A. 30:4C-15.1(a)(3)).

The reasonableness of DYFS's efforts depends on the facts of each case, "including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. DYFS's offered services must be designed to include the maintenance of "the bond between the parent and child" by offering visitation and "inform[ing] the parent of the necessary or appropriate measures he or she should pursue in order to continue and strengthen that relationship and, eventually, to become an effective caretaker and regain custody of his or her children." Ibid. (citing N.J.S.A. 30:4C-15.1(c)).

Here, J.O. did not cooperate with DYFS while she was incarcerated or contact DYFS upon her release from jail. Once DYFS was able to reach her, at a court proceeding, DYFS arranged scheduled visitation with her son. From November 23, 2007, through April 8, 2008, J.O. attended only six of the thirteen visits scheduled with her son. Nor did J.O. show up for seven scheduled psychological examinations. Judge DeCastro noted:

A parent may not stand by passively when informed of the measures that must be taken to avoid termination of parental rights and then claim a lack of effort on the part of the Division because of parental inaction.

[(quoting State ex rel. State Office for Servs. to Children & Families v. Frazier, 152 Ore. App. 568, 601 (Or. Ct. App.), rev. denied, 327 Ore 305 (1998)).]

There is sufficient evidence in the record to support Judge DeCastro's determination that the Division "has exerted reasonable efforts in this case as much as possible." DYFS met its burden under prong three.

Finally, J.O. contends that maintaining the status quo while J.O. gets psychological treatment will do no harm as J.C is living with his paternal grandfather and another year in the current situation would do no harm to J.C. She also claims the trial judge's findings as to the bond between J.C. and the grandfather and between J.C. and J.O. was not supported by the record.

The fourth element of the best interests standard seeks to explore "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of her relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355. Because of the inherent risk to children stemming from termination of parental rights, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the judge's inquiry is one of comparative harm, for which the judge must consider expert evaluations of the strength of "the child's relationship both with [his] biological parents and [his] foster parents." Ibid.

DYFS conducted a bonding assessment of J.O. and J.C. Dr. Iser conducted the evaluation and he observed that although J.O. hugged and kissed J.C., "there was no reciprocity of affection on his part." We have previously observed that Dr. Iser recommended that J.O. undergo "[i]ntensive [p]sychotherapy," and that recommendation applies with equal force here.

Furthermore, over a twenty-four month period, J.O. managed to see J.C. less than twelve times. Contrast that with the continuous care J.C. has received living with his grandfather and his live-in paramour since April 2006. Judge DeCastro made credibility determinations and found that terminating J.O.'s parental rights would do no more harm than would disruption of his relationship with his primary caregivers. There is sufficient evidence in the record to support Judge DeCastro's determination that the best interests of J.C. are in terminating J.O.'s parental rights so that J.C. can find stability and permanence in adoption by his grandparents.

We are satisfied that DYFS established by clear and convincing evidence the elements required by N.J.S.A. 30:4C-15.1, and we affirm essentially for the reasons set forth in Judge DeCastro's thoughtful and thorough written opinion of May 5, 2008.

Affirmed.

 

The same judgment incorporated the surrender of parental rights to J.C. by his birth father, W.C.

Lieutenant Musso is referred to without a first name throughout the record.

At least one of these appointments was canceled by DYFS.

E.g., refusing to take medication and cooperate with DYFS.

(continued)

(continued)

20

A-5476-07T4

RECORD IMPOUNDED

April 23, 2009