DIVISION OF YOUTH AND FAMILY SERVICES v. D.R.

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6293-07T46293-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

D.R.,

Defendant-Appellant.

IN THE MATTER OF THE

GUARDIANSHIP OF Y.A., a minor.

__________________________________

 

Submitted April 30, 2009 - Decided

Before Judges Parrillo and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FG-07-11-08.

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

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Carol Goun Arnott, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor-respondent (Olivia Belfatto Crisp, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this parental termination case, D.R., the biological mother, appeals from a judgment of guardianship terminating her parental rights to her two-and-a-half-year-old daughter, Y.A. She contends that the New Jersey Division of Youth and Family Services (DYFS) failed to establish that termination of her parental rights was in the best interests of Y.A. We disagree and affirm.

Thirty-one year old D.R. is the biological mother of three other children: D.W., born November 17, 1997; A.R., born November 28, 2002; and Y.Q., born December 26, 2003. Two of these children, A.R. and Y.Q., were born testing positive for drugs, and none of whom is in D.R.'s care. Indeed, Y.Q. was adopted in May 2006 after D.R.'s parental rights were terminated; A.R. lives with her paternal grandparents in Peru; and D.W. lives with his father in New York.

Y.A. was born on June 6, 2006. Days later, DYFS was alerted to the fact that D.R. was using drugs during her pregnancy and was a drug addict. Hospital toxicology reports confirmed Y.A. was indeed exposed to drugs at birth and as a result, Y.A. suffered withdrawal symptoms and seizure episodes, causing the infant to remain in the hospital for one month.

On June 29, 2006, DYFS initiated a child abuse and neglect action against D.R. and N.A. pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12, and moved for temporary custody as well as appointment of a Law Guardian. DYFS was granted legal custody that same day and Y.A. was placed in the home of her paternal great aunt, J.B., who has continuously cared for Y.A. since she was one-month old and wishes to adopt her.

D.R. rejected DYFS' recommendation to enroll in the Mommy and Me program for substance abuse. Instead, D.R. enrolled in a methadone treatment program from February 2006 to February 2007. D.R. relapsed three times in an eight-month period. She failed to attend psychological and substance abuse evaluations, which were scheduled for her by DYFS on February 15, March 14, and April 2, 2007.

DYFS arranged visitation with her child, but D.R.'s attendance was sporadic and in June 2007, the agency terminated visitation due to the fact that D.R. neither showed up for her visits nor called to cancel. From June to December 2007, DYFS could not locate D.R. as she was homeless and there were no scheduled visits with Y.A. Also, on April 2, 2008, after visitation had resumed in January 2008, D.R. came to a visitation under the influence of alcohol and fell asleep during the visit.

On December 12, 2007, one-and-one half years after Y.A.'s birth, D.R. self-enrolled in Su Casa, an in-house 12- to 18-month methadone rehabilitation program. However, D.R. relapsed in March 2008 on heroin and cocaine, just three months prior to the guardianship trial. At time of trial, D.R. had completed approximately seven months of the program, and was not scheduled to complete the program until mid-December 2008 or possibly mid-June 2009. Moreover, in the final phase of the program, D.R. had to obtain a job and housing. After the guardianship trial concluded, and before completing Phase B of the program, D.R. was discharged from Su Casa on July 31, 2008.

Both DYFS' expert, Dr. Frank J. Dyer, and D.R.'s expert, Dr. Gerard Figurelli, agreed that at time of trial, D.R. was not fit to parent her child and would require a period of sustained abstinence. In fact, Dr. Dyer reported that during D.R.'s psychological evaluation, she expressed the desire to manage her addiction instead of achieving long-term sobriety, which indicated to the expert that D.R. did not intend to give up heroin entirely, but just to avoid withdrawal symptoms with continued use.

D.R. presented to Dr. Dyer with a minimal employment record, a longstanding history of substance abuse, drug-related criminal activity, and transient housing. According to Dr. Dyer, D.R. had very little insight into the scope of her problems, no appreciation for the impact of her addiction on her ability to parent a child, and no genuine commitment to recover from her addiction. His prognosis for safe parenting was extremely poor in view of D.R.'s personality disorder, which was characterized by "manipulativeness, disregard or contempt for rules and regulations, irresponsibility" and emotional instability with severe psychological crisis states. In Dr. Dyer's opinion, D.R. was not able to safely parent Y.A., and would need to exhibit two years of demonstrated abstinence before DYFS could even consider reunification. In fact, at present, Y.A. would be at risk of physical injury if reunited with D.R.

Dr. Dyer also conducted a bonding evaluation of J.B. and Y.A. In his assessment, Dyer concluded that "it was clear that [J.B.] has a very strong commitment to this child's welfare; that she is a mature woman, [and] has very good judgment[.]" In this regard, Dr. Dyer noted that Y.A. was relaxed, happy and focused on J.B. as her caretaker; was receiving "excellent care" from J.B.; and is currently happy and emotionally responsive. He concluded that Y.A.'s attachment to J.B. is not unlike that of a child with her birth parent, comparing, on the other hand, the relative lack of affection and contact between Y.A. and D.R. Dyer opined that Y.A. would suffer traumatic loss if separated from J.B. and, accordingly, agreed with DYFS' plan for J.B. to adopt the child, concluding that the benefits of permanency far outweighed the harm of terminating D.R.'s parental rights.

Dr. Figurelli agreed with Dyer that D.R. "is not ready to parent today"; that she "will need to adequately address the issues of a stable and adequate living arrangement, and adequate, consistent source(s) of income before she is able to parent [Y.A.]." Nevertheless, Figurelli recommended that D.R. be reassessed once she has completed inpatient treatment and is involved in outpatient treatment:

I suggested that upon her completion of in-patient treatment that if the Court allowed that [D.R.] be reassessed regarding her capacity to parent at that time and that if she represented a viable placement option for [Y.A.] that the Court consider placing [Y.A.] or returning [Y.A.] potentially in graduate and gradual manner to her care at that time.

In his June 18, 2008 evaluation, Figurelli reported that Y.A. and D.R. "do not, as yet, appear to share a fully reciprocally bonded caretaker-child relationship" in contrast to the "positive emotional attachment" Y.A. enjoys with her great aunt, J.B. Yet, despite finding J.B. to be in effect Y.A.'s "psychological parent," Figurelli nevertheless cautioned that "[i]f [D.R.] presents a viable option for [Y.A.]'s future permanent placement, it is the opinion of this examiner that it would do her more harm than good to have her relationship with her mother severed and, thereby, have the opportunity for the development of this relationship pre-empted."

On June 27, 2008, Judge Lombardi rendered an oral decision, in which he considered each factor of the N.J.S.A. 30:4C-15.1a test, and, as applied to D.R., concluded that DYFS had established by clear and convincing evidence that termination of D.R.'s parental rights was in the best interests of Y.A. As to the first prong, after reviewing the hospital records and the testimony of the DYFS caseworker, the court was satisfied that Y.A. was born drug exposed and had problems as a result of that exposure.

As to prong two, the court cited D.R.'s instability and continued drug use, noting that D.R. did not develop a relationship with her child from June to December 2007, when DYFS could not locate D.R., and that she did not adequately address her drug issues during that time period. The judge found that until Y.A. was one-and-one-half years old, there was no indication that D.R. "was solving her drug problems so as to place herself in a position to parent her child. And that is certainly considered neglect and lack of nurture. She simply was not there for the child."

As to prong three, the court found that DYFS provided adequate services to D.R., assisting her in getting into a drug program and arranging visitation. With regard to alternatives to termination of parental rights, the court noted that DYFS discussed other relatives with D.R., but that D.R. offered no other options.

As to prong four, the court focused on whether D.R. could present herself as a viable option in the foreseeable future. In this regard, the court accepted the opinion of Dr. Dyer, who opined that D.R. would need to complete a drug treatment program and remain abstinent for a period of time before she could provide a safe and stable home for Y.A. In the court's view, however, Y.A. had already bonded with J.B., will have lived with J.B. for three years before D.R. could possibly parent her, and would suffer "enduring psychological and emotional harm" if separated from J.B. In conclusion, the judge found that terminating D.R.'s parental rights was necessary due to Y.A.'s need for permanency.

On appeal, D.R. contends that DYFS failed to establish the four prongs of the best interest test by clear and convincing evidence, and that, especially with regard to prong two, the court failed to properly weigh her progress. We disagree.

As a threshold matter, the scope of appellate review in a termination of parental rights case is limited. "The factual findings which undergird a judgment in such a case should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" 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)). The judgment of the trial court "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).

Concerning the requisite legal standard, DYFS may initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if:

(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]

The four criteria are not discrete and separate, but overlap with each other to provide a comprehensive standard that identifies a child's best interests. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS bears the burden of establishing each prong of the best interests test by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).

Measured by these standards, we are satisfied that there is sufficient credible evidence in the record that clearly and convincingly establishes each of the four prongs of the best interests test. Suffice it to say, Y.A. suffered physical harm both at birth and thereafter due to D.R.'s drug addiction. Moreover, both D.R.'s history and present circumstances demonstrate an unwillingness and inability to overcome the established conditions of her drug abuse and instability that threaten recurrent harm to the child, including the emotional and psychological injury resulting from separation from the foster parent with whom Y.A. has bonded over the years. Clearly D.R. has chosen not to take advantage of the assistance and services DYFS has offered in the past, leaving the circumstances that necessitated placement of the child in foster care in the first instance largely uncorrected, and correspondingly, Y.A.'s need for permanency increasingly greater. Lastly, it was convincingly established that, considering the two relationships, Y.A. will not suffer a greater harm from termination of the parental tie than from permanent disruption of her bond with J.B. Accordingly, we affirm the judgment below substantially for the reasons stated by Judge Lombardi in his oral opinion of June 27, 2008.

 
Affirmed.

On October 5, 2007, the biological father, N.A., voluntarily surrendered his parental rights to Y.A. so that her caretaker, N.A.'s aunt, J.B., could adopt her.

On June 16, 2006, D.R. tested positive for cocaine. At a physical exam one month later, on July 18, 2006, D.R. was reported to have been on methadone for four years and tested positive for Hepatitis C. N.A. also tested positive for methadone and Hepatitis C.

Y.A. was subsequently treated for seizures at the hospital in March 2007.

Based on D.R.'s missing status, on May 1, 2007, the Family Part judge signed a permanency order, approving DYFS' plan for termination of D.R.'s parental rights followed by relative adoption.

(continued)

(continued)

12

A-6293-07T4

RECORD IMPOUNDED

June 1, 2009