New jersey division of youth AND family services v. G.S and N.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1685-09T2

New jersey division of youth

AND family services,

Plaintiff-Respondent,

v.

G.S.,

Defendant-Appellant,

and

N.T.,

Defendant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.S., a minor.

December 28, 2010

Submitted December 7, 2010 Decided

Before Judges Payne, Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-262-06.

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

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant G.S. appeals from an October 22, 2009 Family Part order that granted the request of the Division of Youth and Family Services (DYFS or the Division) for termination of G.S.'s parental rights to his daughter, R.S., born May 27, 2005. The Family Part order also terminated the parental rights of N.T., R.S.'s mother. N.T. has not appealed. We affirm the termination of G.S.'s parental rights.

I.

G.S. and N.T. are the parents of two children, N.S. and R.S. To provide context for our discussion of the Division's efforts to terminate G.S.'s parental rights as to R.S., we briefly describe the Division's involvement with G.S. and N.T. starting in 2003, before R.S. was born. On July 17, 2003, N.S. was born prematurely and drug-exposed. She is blind, has cerebral palsy and is developmentally delayed, as a result of her premature birth. N.T. tested positive for methadone and heroin and admitted using heroin the weekend before she gave birth to N.S. After the Division obtained legal custody of N.S., N.T. entered the Straight and Narrow drug treatment program, successfully completing it in May 2004. After moving into an aftercare program at Project Home, N.T. was discharged for violating the program's rules, and consequently never completed the aftercare program. In early 2005, the Division was unable to locate G.S. or N.T. to provide them with services. In May 2006, their parental rights were terminated as to N.S.1

On May 27, 2005, the Division received a referral from Jersey City Medical Center when R.S. was born prematurely and drug-exposed at twenty-eight weeks gestation. She was sixteen inches long, and weighed only three pounds and ten ounces. R.S. tested positive for methadone and opiates, and N.T. admitted to using those drugs during her pregnancy. N.T. did not even know she was pregnant until her sixth month, at which time she entered a methadone clinic and was placed on methadone maintenance. In June 2005, upon her entry into a detox program, N.T. admitted to a heroin habit of three bags per day, acknowledging that she had been using heroin for twenty years.

Because the Division was granted legal custody of R.S. at birth, she has never lived with either parent. Since her birth, R.S. has had five different foster placements, including her current one. In June 2007, she was placed with her current foster parents, who have already adopted her sister, N.S., and are willing to adopt R.S., should the natural parents' rights be terminated. At the time of the trial, R.S. was receiving occupational and physical therapy three times a week. She has severe developmental delays, which we describe later in this opinion.

We turn now to G.S. G.S. has a history of drug addiction, criminal convictions and homelessness. After R.S. was born, G.S. was incarcerated at the Hudson County Jail, and was incarcerated again from October 2006 until June 2007 while serving a sentence. His criminal history includes convictions for possession of a controlled dangerous substance and for possession of a firearm.

After testing positive for methadone, cocaine and marijuana in October 2005, the Division referred G.S. for substance abuse treatment. He was ordered by the court to attend a drug treatment program, and referred to a program at Spectrum Health Care, but did not complete the aftercare program. In March 2006, he tested positive for methadone, but was no longer attending a drug treatment program. DYFS also offered him individual counseling, which he refused.

From December 2005 until August 2006, DYFS provided G.S. and N.T. with supervised visitation with R.S. However, the Division terminated the visitation as of August 29, 2006 because the parents were non-compliant by failing to contact DYFS before canceling visits.

G.S. and N.T. named V.C., a maternal aunt, as a potential caretaker for R.S., and she applied to become a resource family parent. On December 16, 2006, G.S. and N.T. made an identified surrender of their parental rights to V.C., and R.S. was to be placed with V.C. once the application was complete. On March 27, 2007, V.C.'s application was denied and the identified surrender was rescinded.

In July 2007, the court ordered DYFS to resume the supervised bi-weekly visitations between R.S. and her parents that had been suspended a year earlier due to G.S.'s and N.T.'s apparent disinterest. In August 2007, R.S. moved to Maine with her foster parents, and the Division provided visits for G.S. and N.T. with R.S. in Maine. When the foster parents moved with R.S. to Georgia, the Division arranged visits for G.S. and N.T. there. G.S. and N.T. were inconsistent in their visitation, attending only eight out of the twenty-five visitations scheduled between June 2008 and May 2009.

The trial began on March 12, 2008 and extended over a sixteen-month period until July 24, 2009. The court ordered DYFS to obtain updated psychological and bonding evaluations, because of the "ongoing attempt to rehabilitate" the parents. The parents' permanency plan, if reunited with R.S., was to raise her together.

On July 8, 2008, Dr. Peter DeNigris, Psy. D., issued a report describing his psychological assessment of the parents upon completing individual psychological examinations of each as well as bonding evaluations with R.S. In his report, Dr. DeNigris described G.S.'s substance abuse and criminal history. He opined that G.S. is in the borderline range of intelligence, with ongoing feelings of depression, anxiety and personal inadequacy. Dr. DeNigris also described N.T., commenting on her "tendency to deny and minimize problems," and noting that she handles daily stressors by "walking away" or locking herself in the bathroom.

In his report, Dr. DeNigris recommended terminating both N.T.'s and G.S.'s parental rights to R.S. because R.S. was in "desperate need of permanency" in "an environment that offers nurturance, consistency, stability, and responsible parenting." His recommendation of termination was based on N.T.'s and G.S.'s unsuccessful efforts to treat their drug addictions and their risk of relapse; their inability to achieve financial stability; their lack of understanding of R.S.'s profound developmental delays;2 and their inability to recognize the significance of her attachment to her foster parents. DeNigris emphasized that N.T.'s and G.S.'s lack of understanding of R.S.'s needs make it "unlikely" that they would "follow through with the necessary services to address those needs."

In the bonding evaluations, Dr. DeNigris observed that neither N.T. nor G.S. sought to engage R.S. in any activities, and that the child did not respond to their affection. Indeed, he noted that while in the presence of G.S. and N.T., R.S. kept asking for her foster mother. In his observation of R.S. with her foster parents, DeNigris observed reciprocated affection and the foster parents' ability to engage R.S. and anticipate her needs. He concluded a bond was not formed between R.S. and her birth parents, and a significant and healthy bond was formed between R.S. and the foster parents.

Dr. Susan Skolnick, Ph. D., was retained by G.S. On August 1, 2008, Skolnick issued a report describing her psychological assessment of G.S. and her bonding evaluation of G.S. with R.S. In her report, Dr. Skolnick recommended reuniting R.S. with G.S. and N.T., opining they were now able to provide a safe and stable home for R.S. Dr. Skolnick testified that R.S. would be able to adjust to the separation from her foster parents because she has already experienced many transitions in her short life; a comfortable relationship existed between G.S. and R.S.; and a bond could be established between R.S. and G.S. Skolnick opined that separating R.S. from her birth parents would do more harm than good.

G.S.'s plan for R.S. was to raise her along with N.T., with N.T. serving as the caretaker for R.S. while he was at work. G.S. did not testify, instead making a statement on the record that he loved his daughter and was prepared to do whatever was necessary to achieve reunification.

In an oral opinion on October 22, 2009, Judge Davis made findings of fact to support her conclusion that the Division satisfied all four prongs of N.J.S.A. 30:4C-15.1(a), the statute that establishes the standards for termination of parental rights. Judge Davis found R.S.'s health was seriously impaired by the parental relationship because of G.S.'s long history of substance abuse, and by his continued relationship with N.T. Judge Davis also found that G.S. was unable to eliminate the harm facing R.S. because G.S. failed to visit R.S. when the Division afforded him the opportunity, and he failed to address his substance abuse problem and had not provided a plan for mitigating the trauma R.S. would experience when separated from her foster parents. Judge Davis found that the expert opinion of Dr. Skolnick was not credible because she lacked the necessary qualifications to provide a persuasive opinion on the subject of bonding.

Further, the court found that although the Division offered services to G.S., including substance abuse evaluations and treatment programs, and visitations along with transportation, he only minimally cooperated. The judge found the Division also explored alternatives to termination. Finally, Judge Davis found that termination would not do more harm than good because the expert opinion of Dr. DeNigris, whom she found credible, concluded there was no bond between R.S. and either parent. As such, the court held the Division met its burden that termination of parental rights was in R.S.'s best interest.

On appeal, G.S. maintains that the order terminating his parental rights must be reversed because DYFS failed to satisfy the requirements of N.J.S.A. 30:4C-15.1(a) and because his due process rights were violated when the judge permitted the Division to reopen its case, and present additional witnesses, after all parties had rested.

II.

Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial judge's credibility determinations and feel of the case based upon the court's opportunity to see and hear the witnesses. Indeed, a trial court's findings are binding on appeal when supported by adequate, substantial and credible evidence. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." K.H.O., supra, 161 N.J. at 346. However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. J.N.H., supra, 172 N.J. at 471. When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

In a termination case, "[t]he burden falls on the State 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). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.

New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves 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).]

These four statutory 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.

As to the first prong, we are satisfied that G.S. has endangered R.S.'s safety, health and development by his substance abuse history and criminal behavior, which caused him to be absent at the time of R.S.'s gestation and birth and for a substantial period thereafter. In addition, he continued to maintain a relationship with N.T., whose drug abuse during her pregnancy led to R.S.'s serious and permanent developmental delays.

Addressing the second prong, we are satisfied that G.S. is unable or unwilling to eliminate the harm he has caused R.S. and delaying permanency will add to the harm the child has already endured. G.S. failed to complete his substance abuse aftercare program and later tested positive for methadone. This demonstrates that he has not addressed his substance abuse problem. G.S.'s plan was to co-parent R.S. with N.T., who has been deemed unfit to raise either of her children, both for psychological reasons and because of her longstanding and unresolved drug addiction. N.T. also lacks understanding of R.S.'s developmental delays and how to parent R.S., who has significant special needs. G.S.'s plan to place his fragile daughter in the care of someone as unreliable and unstable as N.T. demonstrates that he is unable to eliminate the harm facing the child, and is indeed willing to perpetuate that harm.

R.S., as Dr. DeNigris opined, is in "desperate need of permanency." Her foster parents can offer her nurturance, consistency, and responsible parenting, because they understand her developmental delays and can anticipate her needs. R.S. has established a bond with her foster parents, which was evident in the bonding session when she responded to their attention and reciprocated their affection. Severing that bond would cause significant psychological trauma.

Turning to the third prong, we are satisfied that the Division made reasonable efforts to provide G.S. with services aimed at eliminating the harm, and that no alternative existed to the termination of G.S.'s parental rights. The Division provided G.S. with substance abuse assessments, referrals to treatment programs and individual counseling. Although G.S. completed one drug treatment program, he did not complete the aftercare program and later tested positive for methadone. The Division also provided G.S. with parenting classes, which he attended, but he continues to lack an understanding of R.S.'s developmental delays and her attachment to her foster parents. In addition, the Division arranged numerous visits between G.S. and R.S., but many of the visits did not occur because of his and N.T.'s failure to appear, leading to the eventual cancellation of future visitation with R.S. Therefore, we are satisfied the Division made reasonable efforts to provide G.S. with services aimed at eliminating the harm facing R.S.

We are also satisfied that, under the second part of the third prong, no alternatives existed to the termination of G.S.'s parental rights. The Division attempted to place R.S. with a maternal aunt, but the aunt was not approved as a resource parent. The Division also continued offering services aimed at rehabilitating both parents, but those attempts failed, through no fault of the Division. Therefore, no alternatives existed to the termination of G.S.'s parental rights.

As to the fourth prong, the testimony of Dr. DeNigris demonstrates by clear and convincing evidence that G.S. has failed to establish a parent-child relationship with his daughter and therefore termination of his parental rights to R.S. will not do more harm than good. This is especially so in light of the positive, nurturing and supportive relationship the child has developed with her foster parents, the rupturing of which will cause R.S. significant harm. G.S. lacks insight into the extent of such harm, nor does he understand how to mitigate it. While the testimony of Dr. Skolnick reached a different conclusion, the judge found her testimony unpersuasive. We are satisfied, based` upon the record, that termination of R.S.'s parental rights will not do more harm than good.

Judge Davis carefully reviewed the evidence presented by the Division, and concluded that DYFS satisfied, by clear and convincing evidence, all the legal requirements for an order terminating G.S.'s parental rights. Her opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with K.H.O., supra, 161 N.J. 337, and D.M.H., supra, 161 N.J. 365, and is fully supported by the record. We have been presented with no meritorious basis to disturb her findings of fact or her conclusions of law.

III.

G.S. also argues that his due process rights were violated when DYFS was permitted, after all parties had rested, to call additional witnesses, namely, a DYFS caseworker and N.T's substance abuse counselor, to provide updated testimony. Rule 5:9-3 specifically authorizes the court to allow the production of additional testimony in a termination of parental rights proceeding, even "after the hearing," if "the situation [so] requires."

In this matter, the trial lasted sixteen months, and due to the length of time, the circumstances of the parents might well have changed. Such evidence is critical when parents are facing the termination of their parental rights. In addition, there was an ongoing attempt by the Division to rehabilitate both parents, which made updated psychological assessments of N.T. and R.S., and a bonding evaluation with R.S., necessary. We are satisfied that the actions of the trial court were permitted under Rule 5:9-3 and did not deny G.S. a fair trial.

A

1 G.S. did not appeal the termination of his parental rights to N.S. N.J. Div. of Youth & Family Servs. v. N.T., No. A-6142-05 (App. Div. March 16, 2007).

2 Dr. DeNigris described those developmental delays as: "(1) significant delays in visual motor integration and grasping skills; (2) severe receptive language delays and moderate expressive language delays; and (3) significant delays in her adaptive, personal-social, communication, motor, and cognitive functioning."