NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1093-09T41093-09T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

D.C.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF C.C.,

a minor

__________________________________

 

Submitted: July 6, 2010 - Decided:

Before Judges Stern, Skillman and Wefing.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-93-08.

Yvonne Smith Segars, Public Defender, attorney for appellant D.C. (Grace Eisenberg, Designated Counsel, on the briefs).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor C.C. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

D.C appeals from a "Judgment of Guardianship After Trial," terminating her parental rights, and those of the father, K.T., to their son, C.C., entered on September 14, 2009. The judgment was based on a written opinion of Judge John Conte filed the same day. The judgment granted DYFS the authority "to consent to the adoption of" C.C., who was twelve at the time of judgment, and "to act fully and completely as Guardian of . . . [his] person and property."

On this appeal, D.C. challenges the findings under all four prongs of N.J.S.A. 30:4C-15.1(a), and contends:

POINT I THE CHILD'S SAFETY, HEALTH OR DEVELOPMENT HAS NOT BEEN AND WILL NOT CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP WITH THE BIOLOGICAL MOTHER.

POINT II THE BIOLOGICAL MOTHER IS WILLING AND ABLE TO ELIMINATE THE HARM FACING THE CHILD AND IS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

POINT III THE DIVISION HAS NOT MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE BIOLOGICAL MOTHER CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.

POINT IV TERMINATION OF PARENTAL RIGHTS OF THE BIOLOGICAL MOTHER WILL DO MORE HARM THAN GOOD.

I.

When he was seven years old in 2005, C.C.'s school reported to DYFS that he suffered a laceration on the back of his head when his mother threw a cup at him. She also admitted hitting him with a belt. A subsequent report followed after C.C. sustained injuries when he was hit on his legs with a spoon. As a result, DYFS began to work with D.C. and her family, including C.C.'s older siblings, sister K.F. and brother R.C.

C.C. was diagnosed with attention deficit hyperactivity disorder (ADHD), he was frequently aggressive and it was difficult for D.C. to control him. C.C.'s grandparents, with whom the family lived for a while, reported that D.C. had "no control" over the children. The grandparents moved to North Carolina and the children lived for periods with other relatives. They were returned to D.C., who obtained an apartment at the end of the summer of 2006, but the apartment was "dirty and cluttered" with "clothes, toys, cereal, potato chips, old newspapers, magazines, and other debris on the floor throughout the apartment." D.C. reported that she could not control the children. The house was found to be in disarray during several visits.

DYFS was again called in the fall of 2006, when R.C.'s teachers reported he "smelled horribly," and that his mother did not do laundry, feed the children, or send them to school with lunch. D.C. indicated she was doing the "best she [could]" with the children, and that the children were old enough to do their own laundry. The home was found to be in a "filthy condition" with moldy food on the stove, an odor of urine and cat feces, and cat litter on the floor.

On January 25, 2007, a social worker from the boys' school wrote that D.C. "openly admitted to leaving her children unattended for extended periods of time, not washing their clothes," resulting in "a strong offensive odor," and told R.C. she did not want him "to live with her." School staff washed the boys' clothes and bought them clothes and lunch. According to the letter, the "home life" of R.C. and C.C. "is negatively impacting their academic, social and emotional performance."

K.F. remained with her paternal grandmother. C.C. and R.C. were moved from one great uncle to another and to foster care. C.C. was ultimately placed with the Children's Aid and Family Services Treatment Home in Bergen County, K.F. was placed with her father, and R.C. was placed with a maternal uncle and aunt.

In the interim, D.C. was evaluated by Dr. Daniel Bromberg who concluded the children should not be returned to her until she completed courses in behavior management skills and participated in individual psychotherapy. Dr. Bromberg monitored D.C.'s progress. She initially participated in therapy in the summer and fall of 2007. However, she stopped attending therapy in December 2007, and Dr. Bromberg reported in January 2008 that "the prognosis for eventual family reunification appears increasingly poor," and that "[b]ecause of the need for permanency to be established, the Division might wish to consider changing their case plan from reunification to termination of parental rights."

As D.C. failed to attend family or individual counseling with Dr. Bromberg, the Family Part approved DYFS's plan for termination of parental rights and adoption of C.C. by S.M., a maternal great uncle. However, C.C. was removed from his care because of S.M.'s use of corporal punishment, and C.C. was placed in a foster home. In the interim, D.C. failed to attend other appointments and evaluations, including a bonding evaluation with Dr. Peter DeNigris, Psy.D.

A bonding evaluation among D.C. and her sons, as well as individual psychological testing and evaluations of all three, was ultimately performed by Dr. DeNigris. His report was dated January 12, 2009. Dr. DeNigris reported that D.C. perceived her children in a "negative manner" and was particularly critical of C.C. According to the report:

Based upon my observations of the interactions between the boys and their birth mother, the criteria commonly found in mutually-gratifying parent/child interactions did not seem pronounced. More specifically, Ms. [C.] did not engage the boys in any activities. At one point, [C.] yawned and appeared disinterested in being with his relatives, as he began to question me about my computer. She did not initiate any gestures of affection with the boys nor did she offer any verbal praise to them during the evaluation. However, she did reciprocate gestures of affection that [R.] initiated with her. She also agreed to brush his hair, which he requested. Overall, throughout the evaluation, Ms. [C.] appeared to favor [R.] and provide more positive attention to him. She inquired about his activities, including the school play and choir. She shifted her attention to [R.] when [C.] was in the midst of telling a story about a wrestling league, which ultimately led to him stopping the story before completing it. Along these lines, Ms. [C.] seemed particularly critical of [C.]. She redirected him for interrupting her, yet she interrupted him on several occasions. When she interrupted him, it was typically to criticize the speed and volume at which he was talking. She also appeared critical of his wish to play with the wrestling figures, as she referred to them as "dolls." This reference clearly bothered [C.]. She laughed at [C.] when [R.] said, in part, "He's . . . actually being honest." In one instance, she commented that [C.] "still hasn't changed." These types of critical comments serve no purposes other than lowering a child's self-esteem and harming the parent-child relationship.

The doctor further reported that reunification could occur only if D.C. attended anger management and family therapy sessions. However, after attending family therapy in March and April 2009, she stopped attending. She subsequently continued individual sessions, but did not discuss issues relating to the children.

In anticipation of the trial Dr. DeNigris wrote a supplementary report on June 5, 2009. It included the following:

[C.] is in desperate need of permanency, which Ms. [C.] is unwilling or unable to provide at this time. Because (1) Ms. [C.] has been, at best, slow to avail herself to the recommended services that could have otherwise facilitated reunification, (2) [C.]'s current foster parents are not interested in pursuing adoption, and (3) no family members have been deemed eligible to care for [C.], it seems that there is no other option than to pursue termination of Ms. [C.]'s parental rights to [C.] so that select home adoption can be achieved. As noted above, [C.] is in need of permanency, and, at this time, the most viable means of achieving that is by terminating Ms. [C.]'s parental rights to him. In the short term, without a viable permanent caretaker, [C.] will likely experience harm if termination of parental rights occurs. However, in the long term, termination of parental rights will be more beneficial for him since he will be able to achieve permanency with someone else. As noted in my first evaluation, [C.] expressed his primary wish as being reunified with his birth mother. This is not uncommon from a developmental perspective, but he is simply too young to know what is in his best interests. During this evaluation, [C.] indicated that he was comfortable with plans to pursue adoption by his current foster parents or other relatives. However, he added that if these options were not possible, then he would like to "get adopted by a family that's nice." It is hoped that the Division can find such a family. In the interim, it is imperative that [C.] continue to participate in individual psychotherapy, hopefully, with his current clinician so as to foster some degree of continuity and stability. Ongoing contact with [R.] is also highly recommended.

In his testimony at the trial, Dr. DeNigris testified that D.C. was "not able to safely parent" C.C. due to his ADHD diagnosis, history of abuse and special needs, because "she has not addressed the factors that would have made her more able to meet [those] needs," and that C.C. needs a caregiver "who is consistent," "nurturing" and capable of giving "unconditional acceptance," which D.C. could not do. Dr. DeNigris felt that any downside to termination would be short lived and outweighed by the need for a permanency placement with a stable caregiver, and "individual therapy."

II.

While recognizing the fundamental rights of a parent to raise their children, the Legislature has also recognized that "the health and safety of the child shall be the State's paramount interest when making a decision on whether or not it is in the child's best interests to preserve the family unit[.]" N.J.S.A. 30:4C-15.1. See also N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 608 (1986). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In Re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). And it is the State's burden "to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Following the trial, Judge Conte wrote a comprehensive opinion in which he found that DYFS presented clear and convincing evidence warranting the termination of D.C.'s parental rights to C.C.

Our scope of review is very limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Because the Family Part has "special jurisdiction and expertise" with respect to these types of matters, id. at 413, its fact-finding is entitled to special deference. Moreover, trial courts are in a better position than appellate judges to evaluate the credibility of witnesses and weigh the conflicting evidence. In Re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Expert testimony is often critical in termination cases, In Re Guardianship of J.C., 129 N.J. 1, 22 (1992), and the conclusions of Dr. DeNigris and Dr. Bromberg are essentially uncontested.

Judge Conte addressed each of the statutory factors in reaching his conclusion that termination was in the best interest of C.C. and that D.C.'s present willingness and desire to cooperate with DYFS is inconsistent with her long term behavior. Dr. DeNigris testified as to the need for "a caretaker who is sensitive, stable and consistent," and that D.C. is not "competent to care for [C.C.] at this time." C.C.'s transfer from caregiver to caregiver while his mother made no real effort to achieve a meaningful reunification has gone on for over three years.

We recognize that it may be difficult to place the thirteen-year-old boy for adoption. However, given the deference owed to the trial judge and the fact that he evaluated all four prongs of the statutory test separately and in the aggregate, we affirm the judgment of guardianship substantially for the reasons stated by Judge Conte in his written opinion of
September 14, 2009.

By order of the same day, D.C.'s parental rights as to R.C. were not terminated because he was fifteen years old and neither he nor his caregivers were "willing to consent to adoption." Behavioral services were ordered and he was continued in placement. However, the parental rights of the putative father of R.C. were terminated by default. D.C.'s eighteen-year-old daughter who lives with her paternal grandmother was dismissed from the litigation.

On February 15, 2008, Dr. Bromberg wrote to D.C. indicating that she had "not initiated contact" or returned telephone calls regarding appointments, and that if he did not hear from her by February 30, 2008, her "case will be closed." D.C. attended no further therapy with Dr. Bromberg.

(continued)

(continued)

11

A-1093-09T4

RECORD IMPOUNDED

August 10, 2010