NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. J.K.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0147-08T40147-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

J.K.,

Defendant-Appellant.

________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF V.A.K. and

V.E.K., minors.

________________________________

 

Submitted January 21, 2010 - Decided

Before Judges Stern, Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-236-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

Paula T. Dow, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly A. Allen, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for the minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant J.K., the biological mother of twin daughters ("V.A.K." and "V.E.K."), appeals from a final judgment of guardianship terminating her parental rights pursuant to N.J.S.A. 30:4C-15.1a. The judgment resulted from a trial in the Family Part conducted over six intermittent days in May and June 2008. We affirm.

I.

The trial proofs established the following pertinent facts and circumstances. Defendant gave birth to the twins in April 2006. Because the twins were born prematurely and each weighed less than two pounds at birth, they remained in the hospital for three months. Shortly after V.A.K.'s birth, physicians determined that she needed heart surgery. Defendant declined to consent to the surgery, which prompted the Division of Youth and Family Services ("the Division" or "DYFS") to obtain custody of V.A.K., and the surgery was performed.

At the time of the twins' birth, defendant was married to a man named L.G. However, L.G. was excluded as the twins' biological father by a paternity test, and his name does not appear on the twins' birth certificate.

Defendant has suffered for years from mental illness, including an uncontested diagnosis of paranoid schizophrenia. She has been hospitalized on multiple occasions. Her mental health condition and other circumstances evidently led to defendant having difficulty in caring for her four older children, who were born in January 1988, March 1991, January 1993, and January 2001, respectively.

The Division's first referral concerning defendant occurred in April 1991, when it received a report that she was neglecting her two oldest children. Several other referrals ensued. Some were against defendant, others were reported by defendant against J.B., defendant's mother. However, the Division apparently made no substantiated findings of abuse or neglect regarding those particular referrals.

Ultimately, pursuant to a series of orders of the Family Part that preceded the current litigation, J.B. obtained custody of the four older children under a Kinship Legal Guardianship ("KLG") proceeding, under N.J.S.A. 3B:12A-1 to -7. The four older children have remained in J.B.'s care since that time.

In June 2006, a hospital staff member reported to a Division caseworker that defendant did not appear to comprehend the twins' needs or medical conditions. For example, defendant inappropriately brought the twins "stage one" baby food, even though they were still being tube fed.

When the twins were released from the hospital in July 2006, they were initially placed with a cousin of defendant, who was also a licensed foster parent. The twins were not placed with defendant because of her ongoing mental health issues and because the Division believed that defendant was not taking her medications. Also at that time, J.B. was not considered a placement option, due to the limited size of her own residence and her care of defendant's other four children.

In March 2007, J.B. obtained larger accommodations. Consequently, the twins joined their four older half-siblings at J.B.'s new residence. The twins have continuously resided with J.B. since that time. Defendant has frequently visited with them there, and at other locations.

During the next several years, defendant underwent numerous psychiatric evaluations. In June 2006, Dr. Adrien Coblentz, a psychiatrist with the Irvington Counseling Center, diagnosed defendant with Axis I Paranoid Schizophrenia (Axis II deferred). Dr. Coblentz found that defendant would not serve as a competent parent for her children.

Subsequently, in October 2006, defendant was evaluated by another psychiatrist, Dr. Carla C. Hardy. Dr. Hardy diagnosed defendant with, among other things, Axis I Schizophrenia and Anxiety Disorder NOS (Not Otherwise Specified). Dr. Hardy recommended that defendant obtain individual counseling. In such counseling, Dr. Hardy recommended that defendant address her identity issues, as well as her mental and emotional stressors, both real and unreal. Dr. Hardy also recommended defendant's participation in cognitive behavioral and reality therapy, and that defendant be made subject to periodic psychiatric monitoring.

Another psychiatric evaluation of defendant was performed by Dr. Morton Friedman in November 2006. Dr. Friedman perceived defendant's overall presentation as being consistent with a diagnosis of chronic paranoid schizophrenia. He opined that defendant was not fit to parent the twins because of her documented mental health history and her current condition.

In August 2007, defendant was evaluated by Dr. Sonia Oquendo, also a psychiatrist. Dr. Oquendo found that defendant has "paranoid delusions and her illness has impacted her functioning in society and her capacity to parent her children." Additionally, Dr. Oquendo observed that defendant is "non[-]compliant with medication and lacks the insight and judgment to accept treatment."

Dr. Alexander Iofin, a psychiatrist who testified as an expert for the Division at trial, evaluated defendant on several occasions dating back to 2003. In July 2003, Dr. Iofin diagnosed defendant as having a "[p]sychotic [d]isorder," which he then classified as "[s]chizophrenia, [p]aranoid [t]ype." At that time, Dr. Iofin expressed "very significant concern" about defendant's ability to function as a parent. He specifically found that defendant "had zero insight on her current mental conditions," and that her "judgment was very significantly impaired." At that time, Dr. Iofin recommended that defendant should not have visitation with her children, even on a supervised basis, until she engaged in appropriate treatment resulting in significant alleviation of her psychiatric symptoms.

Dr. Iofin re-evaluated defendant in April 2008. That assessment included an extensive review of defendant's mental health record, including, among other things, the comprehensive report that Dr. Friedman had issued in November 2006.

In his May 2008 report following his re-evaluation of defendant, Dr. Iofin concluded that defendant's prognosis for any significant improvement was "very bleak." In addition, he stated he would not consider defendant "as a suitable [caregiver] for any minor child now or in any foreseeable future."

Dr. Iofin explained in his 2003 assessment that schizophrenia is a degenerative disease. He recognized that a proper medication regimen can slow the disease's progression, and that medication for defendant is therefore a "necessity." In his 2008 assessment, he suggested that the medication be administered through long-acting injections in lieu of oral doses.

According to Dr. Iofin, because defendant had not fully acknowledged her mental health issues, it was unlikely that she would be compliant in taking such medication. In fact, defendant told Dr. Iofin that she had no mental abnormalities and that she did not need medication. The medical records indicated to Dr. Iofin that defendant has not been compliant with medication in the past, so that her mental condition has largely been left untreated. Consequently, Dr. Iofin predicted that defendant's future compliance with medication, even if it occurred, would only result in limited improvement, due to her long history of inadequate treatment and the degenerative nature of her disease.

Defendant was also evaluated by a psychologist, Dr. Robert Raymond. Based upon his own review, Dr. Raymond observed that defendant's thinking is "marked by paranoid and delusional ideation." He stated that it would be "inadvisable to place her in a role of responsibility for parenting young children."

Dr. Raymond conducted bonding evaluations of the twins with J.B., and also with defendant. His bonding report issued in January 2008 described defendant as "self-involved" and "not demonstrat[ing] sensitivity" to the twins' needs and experiences. Dr. Raymond found no evidence of a strong bond between defendant and the twins.

By contrast, Dr. Raymond found "a strong bond" between the twins and J.B. According to Dr. Raymond's trial testimony, the twins displayed "much more emotional interaction" with J.B. He observed that the twins viewed J.B. as their "psychological parent," consistent with the fact that she has predominantly cared for them since their birth.

Dr. Raymond opined that no harm would befall the twins by terminating defendant's rights. On the other hand, he predicted that the twins would be harmed if they were removed from J.B.'s care and not placed in an equally stable home.

Defendant had numerous supervised visits with the twins while they were in the custody of J.B. However, during those visits, defendant at times exhibited inappropriate behavior, which concerned the Division's caseworker. For example, in October 2007, defendant tried to pour juice in V.E.K.'s mouth while she was asleep in order to wake her up. The child pushed the cup away and started to choke.

Defendant did not consistently follow through on services that the Division offered to her. For example, in January 2008, services for defendant at the "Adoption House" program were terminated, consistent with the program's general policies, because defendant had missed three consecutive appointments. Thereafter, defendant failed to appear for an intake appointment at Tri-City Peoples Corporation, a program that the Division had engaged to help facilitate defendant's regular supervised visits with the twins.

As the twins continued to reside with J.B., the relationship between defendant and J.B. deteriorated. Defendant made accusations, none of which were substantiated by the Division, that J.B. was neglecting her children. These accusations led the Division at times to have defendant's visitations with the twins arranged at an alternative location through a third-party contractor rather than at J.B.'s residence. According to J.B., she has endured a "constant battle and struggle" with defendant regarding the children.

As a result of the persisting friction between J.B. and defendant, J.B. was disinclined to enter into any KLG arrangement with defendant concerning the twins. Instead, J.B. has expressed a desire to adopt the twins, while continuing to care for their four older siblings under the pre-existing KLG orders concerning those children.

A Division caseworker has visited J.B.'s home monthly. According to the current caseworker's trial testimony, the twins appear to be "thriving" in her care. In particular, J.B. has addressed the special needs of V.A.K., who has cerebral palsy and wears leg braces, by regularly taking her to appointments with a neurologist.

Prior to trial, defendant was examined by a defense mental health expert, Dr. Jacob Jacoby, a psychiatrist. Dr. Jacoby concurred that defendant suffers from paranoid schizophrenia. He also diagnosed defendant with narcissistic personality disorder. According to Dr. Jacoby, these disorders are tied to a variety of factors, including defendant's unstable childhood, her abusive relationships with men, and stress from the ongoing DYFS litigation. He agreed with the Division's experts that defendant needs to address her mental disorders through therapy and medication.

Dr. Jacoby differed with Dr. Iofin in considering schizophrenia a degenerative condition, although he acknowledged that it is a lifetime disorder. More optimistic than Dr. Iofin or the Division's other experts, Dr. Jacoby felt that defendant could achieve "significant improvement" with medication. However, he conceded that the principal challenge in treating defendant is assuring her compliance with medication and therapy. Significantly, Dr. Jacoby opined that without defendant being properly medicated, he would not recommend her reunification with the twins. He was unable to estimate the length of time that defendant would need in treatment before being able to serve as the twins' primary caretaker.

At the guardianship trial, the Division presented testimony from Dr. Iofin, Dr. Raymond, and Talithia Lewis, the caseworker who has been assigned to this family since October 2007. The Division also presented several documentary exhibits, including numerous prior mental health evaluations of defendant and the contact sheets reflecting the caseworker's regular interactions with the parties and the children.

Defendant presented at trial the expert testimony of Dr. Jacoby. She also testified in her own behalf.

After considering these proofs, the trial judge concluded that the Division had met its burden of establishing the statutory criteria for terminating defendant's parental rights. Because other matters on the calendar also required his attention that day, the trial judge initially provided an abbreviated summary of his reasons from the bench, indicating that he intended to amplify his ruling at a later time. After defendant filed the present appeal, the matter was temporarily remanded to the trial court for the purpose of allowing the judge to further elaborate on his reasoning. The judge did so in a supplemental oral decision, dated July 23, 2009.

The trial judge's initial and amplified decisions emphasized the severity of defendant's longstanding mental health issues, her failure to address them successfully through treatment, and her non-compliance with medication. The judge particularly noted defendant's "lack of insight and judgment" resulting from her mental health condition. The judge noted that defendant opposed the recommendation of her own expert, Dr. Jacoby, that she receive medication through injections rather than in pill form.

Based on the expert testimony and other proofs, the judge found that defendant has "distorted thinking" and is "out of touch with reality." The judge found that defendant's mental illness has endangered the children and is likely to continue to endanger them. The judge observed that "[i]t is clear that [defendant] is not today in a position to parent any of her children." These findings supported the judge's conclusion that the first and second prongs of the termination criteria were met.

By comparison, the judge concluded that the twins are "thriving" with their siblings in the care of J.B. The judge placed reliance upon Dr. Raymond's bonding evaluation, which documented the "strong bond" that the twins have with their maternal grandmother, and, by contrast, the lack of such a strong bond with defendant as their biological mother. The judge recognized that the twins are "familiar with their mother and able to interact with her as a non-threatening figure," who they can be present with "without overt discomfort." Even so, the judge also noted defendant's failures to "demonstrate sensitivity to the needs and experiences with her daughters[,]" and "the lack of sustained time she has had with them since birth[.]"

With respect to the third prong of the termination standards and the Division's reasonable efforts to assist defendant, the court found that "the Division has attempted to offer services to [defendant]," but that defendant's "distrust of those who try to help her [has been] the key element in terms of the bar to her successful treatment." The judge also indicated that he and the Division had duly considered possible "alternatives to termination of [defendant's] parental rights[.]" In particular, the judge noted that the Division had ruled out L.G., J.K.'s husband, as not biologically related to the twins. The judge further noted that the actual biological father, L.S., had defaulted and was not a caretaking option. The judge further recognized, specifically in his initial bench ruling, that the Division had explored a potential KLG arrangement with J.B., but that she instead desired to have defendant's parental rights terminated and to proceed to adopt the twins herself.

Lastly, as to the fourth ("best interests") prong of the statutory test, the judge specifically found that "termination of parental rights will not do more harm than good[.]" The judge emphasized that the children have been capably cared for by J.B., the only adult parent they have ever known. The judge also underscored defendant's "refusal to accept recommendations of her own psychiatrist in terms of a treatment plan."

On appeal, defendant substantively argues that the trial court erred in finding that the four criteria for termination were proven by clear and convincing evidence. As a procedural matter, defendant also contends that the trial judge's amplified bench opinion from July 2009 was untimely and should not be considered by this court. Defendant also contends that the judge's findings were too informal and cursory.

The Division opposes defendant's contentions. It argues, as does the Law Guardian, that the Family Part's judgment should be affirmed, and that the four criteria for termination were adequately demonstrated by the trial proofs.

II.

We recognize that in a termination of parental rights case, the Division has the burden of establishing, by clear and convincing proof, 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) [DYFS] 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. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]

We also are acutely mindful that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).

As the Supreme Court has instructed, the "[r]eview of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting the need for deference to the factual findings of the trial court because that court had 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" (quoting M.M., supra, 189 N.J. at 293)). If there is substantial evidence in the record to support the trial court's findings, we ordinarily should affirm them. See In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

Bearing in mind, on the one hand, the importance of defendant's interests as a biological parent, and, on the other hand, the limited scope of review of the Family Part's judgment granting termination, we are satisfied that the record here contains adequate and substantial evidence to support the trial court's conclusion that the Division established all four statutory criteria by clear and convincing evidence.

With respect to the first prong of the statute, defendant's undisputed and longstanding mental illnesses have clearly prevented her from serving as a competent caretaker and thereby have endangered the twins' health and development. N.J.S.A. 30:4C-15.1a(1). Additionally, defendant's poor track record in complying with her regimen of medication, her resistance to the prospective recommendations of her own mental health expert, her past episodes of irrational parenting behavior, and the other various factors identified by Dr. Iofin, Dr. Raymond and the caseworker cumulatively support the trial judges' conclusion that the second prong of the statute was fulfilled. N.J.S.A. 30:4C-15.1a(2). We are unpersuaded by defendant's claims that Dr. Iofin's opinions are unreliable because he did not sufficiently elucidate the grounds for his diagnosis, or that he lacked personal knowledge of whether defendant had been compliant with treatment. We are equally unpersuaded that the Division's caseworker needed training in mental health issues in order to provide useful factual testimony in this case.

The third prong of the statute, the Division's reasonable effort to provide services, was also satisfied here. The Division made considerable efforts to attempt to provide defendant with mental health, visitation, and other services, of which defendant did not take full advantage. The Division also fairly considered alternatives to termination. Defendant's preferred alternative, a KLG arrangement with her own mother, was not a legal option because J.B. does not want to enter into a KLG arrangement and instead wants to adopt the twins. The court cannot force J.B. to enter into a KLG arrangement, particularly after the conflicts that have arisen with defendant during the course of the KLG arrangements for the four older children. See N.J.S.A. 3B:12A-5 (requiring that a caregiver petition for KLG). "[A] kinship legal guardian may only be appointed when 'adoption of the child is neither feasible nor likely.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) (quoting N.J.S.A. 38:12A-6d(3)(b)). Here, adoption, which is desired by J.B., is a feasible option. Moreover, the deteriorating relationship between defendant and J.B. would not make KLG a promising alternative.

Given these circumstances, the trial judge had ample reason to reach his ultimate conclusion under the statute's fourth prong: that termination would not do the twins more harm than good. N.J.S.A. 30:4C-15.1a(4). The unrefuted expert bonding assessment of Dr. Raymond pointedly confirmed the strength of the twins' attachment to J.B. and their comparatively limited relationship with their mother. The twins have been ably cared for by J.B. virtually since birth, even though one of them has special needs. Also, it makes sense for them to continue to be raised in the same household as their four older half-siblings.

Unfortunately, J.K. is hampered by her own mental afflictions from having the realistic capacity to care for the twins herself, at least not without substantial therapy and compliance with a medication regime that she thus far has resisted. We are cognizant that defendant has her own apartment, a driver's license, and has completed occupational training. Nevertheless, the children need permanency, and a defined parent-child relationship. The trial judge had substantial grounds to conclude that adoption by J.B. afforded these children their best chance of attaining those important goals.

We turn to defendant's procedural arguments. We disagree with defendant that the trial judge was foreclosed from amplifying his original bench opinion more than fifteen days after receipt of defendant's notice of appeal, as is provided for under Rule 2:5-1(b). Although Rule 2:5-1(b) is the preferred mechanism for a trial judge to explain more fully his or her rationale for rendering a decision, it is not a rigid or exclusive one, particularly where, as here, the court has a parens patriae role in ensuring the welfare of children.

Here, the trial judge expressly indicated in his initial bench ruling that he intended to amplify his opinion at a later time. For reasons that are not presented in the record, the judge did not complete that unfinished task until the matter was remanded to him for the specific purpose of obtaining his amplified reasoning.

To be sure, it would have been preferable if the Division had sought the temporary remand sooner. See Rule 1:7-4(b). But that delay does not divest this court of the authority to learn more from the trial judge, or for the trial judge to share with us his further insights. Although the gap in time between the initial and amplified trial court rulings in this case was unfortunate and should not be the norm, we do not perceive that gap as a legitimate basis for reversal of the final judgment, based on the evidence that was adduced at trial.

We also do not agree with defendant's claim that the trial judge's analysis was perfunctory and thus inadequate. Defendant points to N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245 (App. Div. 2002), in which we remanded to the Family Part a Title 9 abuse-and-neglect case because the trial court's proceedings and its ultimate decision were deemed inadequate. In J.Y. there were a variety of procedural flaws involved, including the trial court's improper acceptance of factual representations from trial counsel in lieu of sworn testimony, the absence of specific findings on the complaint's discrete individual allegations of abuse and neglect, and a lack of a required statutory finding by the trial court respecting whether the Division made reasonable efforts to prevent a placement of the children. Id. at 262-68. Litigants and other interested persons in J.Y. casually addressed the court, without being sworn as witnesses or subjected to cross-examination, and documents were reviewed and considered as proof without being identified for the record. Id. at 264.

The present record does not bespeak a comparable wholesale breakdown of the procedural process. Although the trial court's bench rulings in this case were not particularly lengthy, they sufficed for their purpose and did not constitute "perfunctory" treatment. Cf. J.Y., supra, 352 N.J. Super. at 263 (decrying "the perfunctory manner in which the judge treated the fact-finding process") (emphasis added). The judge was not obligated to craft a lengthy written opinion. To the extent that his oral opinion, as amplified, might have been more detailed, the record before us is sufficient to support the court's ultimate conclusion.

In sum, we reject defendant's substantive and procedural arguments. The final judgment of termination is hereby affirmed.

 

Defendant contends that she opposed the surgery because hospital staff had advised her that the surgery was risky and possibly could be fatal.

In fact, no father is listed on the twins' birth certificates. J.K. had named another man, L.S., as the father of the twins in discussions with DYFS. However, despite a search, the Division was unable to locate L.S. and has had no contact with him. Through default proceedings, the trial court terminated any parental rights that L.S. may have had respecting the twins. L.S. has not appealed that decision.

The care and custody of the four older children is not a subject of the present appeal.

(continued)

(continued)

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A-0147-08T4

RECORD IMPOUNDED

March 3, 2010