NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0291-09T30291-09T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.B.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF D.B.,

a minor.

_____________________________

 

Submitted April 27, 2010 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-11-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ayelet Hirschkorn, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

M.B. is the natural mother of S.B., born in June 1995, and D.B., born December 17, 1997. She appeals from the June 19, 2009 judgment of the Family Part terminating her parental rights to D.B. and awarding guardianship to the Division of Youth and Family Services (DYFS). We affirm.

Defendant has a long history of involvement with DYFS, dating back to 1997, shortly before D.B.'s birth. From that time until the children's removal from her custody in August 2006, DYFS received numerous referrals relating to defendant's chronic drug abuse, unemployment and homelessness. During that nine-year period, DYFS referred defendant to several drug treatment programs, none of which she completed successfully.

At the time S.B. and D.B. were removed from defendant's care, the three were living in a homeless shelter; the referral that triggered the children's removal was that defendant had left them unsupervised at the shelter for approximately six hours, in violation of shelter rules and regulations.

A psychological evaluation conducted by Dr. Mark Singer in May 2007 noted that defendant had "a personality style consistent with Narcissistic Personality Disorder[,]" and that she lacked "the emotional and physical resources needed to care for her children at this time" due to her substance abuse and "significant mental illness." Defendant reported to Dr. Singer that she had recently been diagnosed with bipolar disorder and was, therefore, unable to work.

Dr. Singer recommended that defendant "continue to participate in substance abuse treatment and maintain a substance free lifestyle." He further recommended that defendant participate in a parenting skills program, that her medication be monitored, and that she obtain "appropriate housing and employment." Continued therapy was also strongly recommended to enable defendant to "develop ways of coping with her disorder[,]" and participate in a "long-term [Mentally Ill Chemically Addicted] program." Dr. Singer's prognosis for defendant's case was "poor."

Since July 2007, D.B. has been in the custody of V.W., a paternal cousin. Initially, she was placed there with her brother, S.B.; however, in August 2007, S.B. was removed from V.W.'s custody because of behavioral problems and was thereafter placed in a therapeutic foster home.

DYFS arranged visitation for defendant with D.B. and S.B. An observer noted that defendant and the children interacted positively, laughed and had fun together and demonstrated a good deal of affection with each other. The observer also noted a particularly strong bond between S.B. and D.B.

Defendant continued to enter, and then leave prematurely, various drug treatment programs to which DYFS referred her. In 2008, for example, defendant entered an inpatient program at Trinitas Hospital in late May and was discharged on June 9, for "inappropriate behavior and offensive language." In September, defendant completed a hospital-based treatment program at St. Claire's Hospital and was then referred to Oasis, which she attended from October to December 2008.

Dr. Singer reevaluated defendant in November 2008, at which time she reported having been unemployed since 2004 and stated that she was living in a one-bedroom apartment where her children would not be permitted to live. Defendant also informed Dr. Singer that she was not consistently taking her medicine for her bipolar disorder, allegedly because of insurance difficulties, and that she "just stay[ed] home."

Dr. Singer evaluated D.B. in February 2009, and noted that the child "has a significant emotional attachment to [defendant] . . . ." D.B. told Dr. Singer that V.W. intended to move to North Carolina the following summer and that the prospect of not being able to see her brother, S.B., upset her. D.B. expressed ambivalence as to the person with whom she wanted to live, telling Dr. Singer that she wished to be adopted by her maternal aunt G.B., or by her adult sister, M.B.C., but that she also would "rather live with [V.W.] too."

Dr. Singer conducted a bonding evaluation between defendant and D.B. in November 2008 and observed that defendant spoke to the child "in a loud, angry tone[,]" and avoided eye contact with her; the doctor further noted that defendant rebuffed D.B.'s attempts to be affectionate with her.

Dr. Singer also conducted a bonding evaluation of D.B. with V.W. He observed that "[b]oth individuals were verbally active[,]" and that "[t]here was a lot of smiling and laughter throughout the session."

In a comprehensive summary of his evaluations, Dr. Singer noted that defendant "has an extensive history of substance dependency," and notwithstanding that she was "currently in aftercare . . . the longest she [was] able to maintain sobriety since the age of [seventeen] was for [six] months." Dr. Singer concluded that defendant does not have "the physical or emotional resources to parent . . . at this time[,] or "in the foreseeable future[,]" adding that defendant has "significant difficulty creating stability in [her] own li[fe] and [is] not likely to become capable of providing [her] children with the stability and security they require."

With respect to D.B., Dr. Singer concluded that the child did "not have a healthy, secure attachment" to defendant because defendant herself was an "[un]healthy object[]" who has "been unable to consistently function as [a] stable parental figure[]." The doctor opined that D.B. had developed a healthy attachment to V.W., but that he had not observed "physical [or] emotional intimacy" between them. The doctor further noted D.B.'s strong bond to S.B. and, while he recommended the termination of defendant's parental rights to D.B., he nonetheless recommended that the siblings maintain a relationship with each other in order to "maintain a sense of individual and family identity."

At trial, Dr. Singer testified that without the permanency of adoption by V.W., D.B. would grow up to "be a repressed young lady[,] . . . a . . . tightly-wrapped individual who's likely going to have significant difficulty forming meaningful relationships later on in life . . . with peers . . . ." In short, Dr. Singer opined, D.B. needs the permanency of adoption by V.W. because "she hasn't had it."

Dr. Robert Clyman conducted a "psychological custody evaluation" of V.W. and D.B. on April 22, 2009. V.W. reported that D.B. was an honor roll student in school and generally well behaved and "very mature." D.B. expressed a preference for living with defendant and S.B. in order to maintain her relationship with her brother, but also said that she "would probably 'be okay' with moving to North Carolina" with V.W. and maintaining telephone contact with S.B. D.B. referred to V.W. and the other children in the home as "my family." Dr. Clyman opined that, although D.B. appeared to vacillate in expressing her preference for where she wished to live, "she seemed to tip her hand" by suggesting several ways to be adopted by V.W. and still maintain communication with defendant and S.B.

Defendant presented the testimony of Dr. Albert R. Griffith who, in May 2009, conducted a psychological evaluation of defendant, as well as a bonding evaluation with D.B. In his psychological evaluation, Dr. Griffith noted that since 2006, when her children were placed in foster care, defendant "has not had reunification or been able to successfully address her addiction. In fact, while she opposes termination, she does not offer herself as a custodian, given the fact that she lives in a shelter." The doctor also found "reason to question if [defendant] is compliant with her medication[,]" noting that "[i]f she is not, her ability to maintain herself in recovery and in general stability will be compromised."

Dr. Griffith opined that D.B. had "a good deal of attachment" to defendant notwithstanding that she expressed her desire to live with V.W. The doctor stated that D.B. "looks to [defendant] for nurturance and direction. She may have learned, however, that she can get only a limited amount of support. [D.B.] appears to have developed some resiliency."

At trial, Dr. Griffith noted that D.B. had lived with defendant for the first eight years of her life and that "[n]o matter how dysfunctional the relationship was with [defendant] as a parent, she was the parent that this child knew." Therefore, the doctor opined that D.B. "thinks of [defendant] as her mother, and . . . will always be accepting of her as a mother, no matter what her limitations are." For this reason, he concluded, "[t]o sever that relationship . . . is a lot more likely to do more damage than good at this late age." Dr. Griffith further opined that as a result of D.B. "having continuous contact with the reality[,] it's much more likely that she will become accepting of [defendant]'s limitations and, so, . . . not be encouraged to build up this idealistic view of the mother that never really existed."

Dr. Griffith acknowledged that defendant was in the "[e]arly" stages of recovery, and that it would be "more than six months[,] . . . closer to a year" before she would "be able to care for her child[.]" The doctor further stated that defendant needed to "take her medication [for bipolar disorder] and become stabilized with it[,] . . . follow through with personal therapy, . . . [and] maintain herself [in] employment[,]" all of which he acknowledged was "a lot to . . . put together . . . ." Even if she accomplished all of these goals, the doctor stated that defendant could only be "reconsidered[,]" adding that he did not intend "to say that [D.B.] would be returned to her . . . ."

DYFS caseworker Traceyann Clarke testified that from 1997 onward, DYFS provided various services to defendant including "[r]eferrals for substance abuse, several case plans," assistance with finding housing and assessing relative resources. Clarke noted that D.B. had been in V.W.'s care and custody for the past two years and the child was "basically happy in her placement and . . . want[ed] to remain there." In contrast, Clarke noted that reunification with defendant was not a viable option because defendant still had "substance abuse issues[,]" and still did not have "suitable housing or employment."

Defendant testified and acknowledged her history of drug abuse since the age of eighteen; she explained that she used drugs because of her bipolar disorder. As of the time of trial, defendant was attending Narcotics Anonymous meetings and group therapy sessions. She stated that her "obsession" with using drugs "has been lifted[,]" and that she "has a desire to stop using."

Defendant explained that she has been homeless since 2006 when her residence was condemned, and that she had been attempting to obtain a housing subsidy from the Newark Housing Authority. She claimed that V.W. "is an active drug dealer" and that she herself had purchased drugs from V.W. in 2008. Defendant acknowledged that she did not alert DYFS about these allegations of drug activity at V.W.'s house, because defendant did not "trust" DYFS.

DYFS presented rebuttal testimony from Clarke that on the three occasions when the caseworker visited V.W.'s home, there was no evidence of any drug activity.

In its decision, the trial court rejected as incredible defendant's claim that V.W. was involved in drug activity. The court went on to "rel[y] heavily upon the testimony and findings" of Dr. Singer, which the court found to be "totally logical, credible, based upon the facts of this matter and one [sic] which in the end, should be effected in terms of the permanency plan." The court found that Dr. Griffith's conclusion that "[D.B.] would suffer enduring harm" if defendant's parental rights were terminated, was "trumped by . . . [D.B.'s] need for permanency."

The court acknowledged the D.B. had "conflicting loyalties" in her relationships with defendant and V.W., and that "although . . . continued contact between [D.B.] and [defendant] would be appropriate," since D.B. "has been able to accept the limited relationship that she has with her mother, [D.B.]'s need for . . . consistency and desire to attach to a consistent fixture and achieve a level of permanency is paramount." In sum, the trial court concluded that the testimony by Drs. Singer and Clyman in favor of adoption outweighed Dr. Griffith's opinion that termination of parental rights would do more harm than good.

Based upon the evidence, the court concluded that DYFS had presented clear and convincing evidence to support the termination of defendant's parental rights.

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE MOTHER'S PARENTAL RIGHTS IN ORDER TO PROTECT [THE CHILD'S] BEST INTERESTS

A - THE STATE FAILED TO PRODUCE EVIDENCE OF HARM TO [THE CHILD] AS A RESULT OF THE PARENTAL RELATIONSHIP BETWEEN THE MOTHER AND CHILD

B - THE STATE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE MOTHER IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR [THE CHILD]

C - DYFS FAILED TO PROVIDE ANY SERVICES AND THE TRIAL COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION

i - DYFS FAILED TO PROVIDE THE MOTHER WITH ANY SIGNIFICANT SERVICES AIMED AT ASSISTING HER IN CORRECTING THE CIRCUMSTANCES WHICH LED TO [THE CHILD'S] REMOVAL

ii - FAILURE TO PURSUE THE DIVISION OF DEVELOPMENTAL DISABILITIES OR DIVISION OF VOCATIONAL REHABILITATION PLACEMENT OF PARENT AND CHILD VIOLATED THE ALTERNATIVES TO TERMINATION REQUIREMENT, THE REASONABLE EFFORTS REQUIREMENT, AND THE MOTHER'S RIGHTS AS A DEVELOPMENTALLY DISABLED PERSON

iv [SIC] - THE TRIAL COURT FAILED TO CONSIDER ANY ALTERNATIVES TO TERMINATION

D - THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD

Having reviewed these contentions in light of the record and the controlling legal principles, we conclude that they are without merit. We are satisfied that the judgment of the trial court was "based on findings of fact which are adequately supported by [the] evidence . . . ." R. 2:11-3(e)(1)(A). We add only the following comments.

We have long recognized that the decision to terminate parental rights involves a balancing of two competing interests: the right of a parent to raise his or her child, and the obligation of the State, in furtherance of its parens patriae power, to protect the health, safety and welfare of children who are at risk of abuse or neglect at the hands of their parents. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 86 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). While a parent has a constitutionally protected right to maintain a relationship with his or her child, In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), parental rights are not absolute and the State may seek to terminate those rights where the exercise of its parens patriae power is warranted. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

In order to obtain a judgment terminating parental rights, DYFS must establish the following criteria by clear and convincing evidence:

(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-15.1(a)(1) to (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. The four statutory elements "provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (internal quotations omitted).

Our review of a trial court's judgment terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to the trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. On appeal, we will "defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). "[D]eference will . . . be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.

We are satisfied that the record supports the trial court's decision. It is unfortunate, but nonetheless clearly established, that defendant's chronic drug abuse, homelessness, mental health issues and lack of employment led to the circumstances necessitating D.B.'s removal from her custody in August 2006. Moreover, as of the time of trial, notwithstanding defendant's protestations that she "desire[d] to stop using" drugs, she acknowledged, as the trial court recognized, that she was not "ready, able [or] willing to assume primary care of [D.B.]." Despite her professed good intentions, defendant remains "unwilling or unable to eliminate the harm" facing D.B. N.J.S.A. 30:4C-15.1(a)(2). Defendant's recent efforts to maintain sobriety are simply too little too late.

Moreover, for two of the three years between D.B.'s removal from defendant's custody and the trial in this matter, while defendant made no progress in achieving sobriety, employment, or financial stability, D.B. has had the benefit of a stable and permanent home with V.W. In addition, DYFS made continuing efforts to assist defendant in achieving the sobriety which, in turn, would enable her to accomplish the other goals essential to demonstrating her ability to parent D.B.

With respect to the court's finding that termination of defendant's parental rights would not do more harm than good, the court recognized that D.B. demonstrated ambivalence about losing contact or communication with defendant, while she nonetheless expressed the desire to continue living with V.W. despite the possible relocation to North Carolina. The court considered defendant's chronic inability to provide D.B. with a safe, stable and permanent home in light of Dr. Singer's testimony that D.B. was "a child who is ready to attach, who . . . has never had the ability to have permanency and stability with her mother, [and] who at this point needs that attachment more than ever." Even defendant's own expert, Dr. Griffith, recognized that defendant had "a lot to . . . put together" just to warrant "reconsider[ation]." These considerations led the trial court to find it "clear that this is a child who needs the ambiguity in her life resolved[,] . . . [and] that termination will not do more harm than good."

Here, the nature of D.B.'s relationship with defendant may have made "[w]eighing the potential harm" of terminating that relationship "against that which might come from removing her from her foster home . . . painfully difficult . . . ." In re Guardianship of J.C., 129 N.J. 1, 25 (1992). However, we are satisfied that the trial court properly weighed those considerations and concluded that D.B.'s need for a "permanent and defined parent-child relationship[]" was "paramount . . . ." Id. at 26. The Supreme Court "has long emphasized 'New Jersey's strong public policy in favor of permanency.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510 (2004) (quoting K.H.O., supra, 167 N.J. at 357). The result here comports with that policy.

 
Affirmed.

S.B. is not a subject of this appeal.

R.M., D.B.'s biological father, entered a voluntary surrender of his parental rights on May 27, 2009.

(continued)

(continued)

17

A-0291-09T4

RECORD IMPOUNDED

June 2, 2010