NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. E.K.B.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-27i14-08T42714-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.K.B.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF V.N.B., a minor.

_________________________________

 

Submitted December 1, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Mercer

County, Docket No. FG-11-30-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Justin J. Walker, Designated

Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa Raksa, Assistant Attorney General, of counsel; Susan Brown-Peitz, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor V.N.B. (Noel C.

Devlin, Assistant Deputy Public Defender, on

the brief).

PER CURIAM

E.K.B. is the biological mother of V.N.B., who was born on May 6, 2005. She appeals from the trial court judgment terminating her parental rights. After reviewing the record in light of the contentions advanced on appeal, we affirm.

At the time of V.N.B.'s birth, E.K.B. was staying at Huchet House, a facility for first-time homeless women run by a program known as Home Front. Her father brought E.K.B. to Home Front when she was four and one-half months pregnant. He considered himself too old and ill to care for E.K.B. and a baby.

E.K.B. suffers from significant cognitive deficits, and following V.N.B.'s birth, the staff at Huchet House were concerned about E.K.B.'s ability to care for her baby. She did not, for instance, know when it would be time to feed the baby or to change her unless she received periodic reminders from the staff. The staff created a schedule for E.K.B. to follow, but she could not do so without reminders at the appointed times.

On May 31, 2005, V.N.B. had to be taken to the hospital because she had developed such a severe diaper rash. The program director at Huchet House testified that V.N.B.'s skin was "raw" from the rash.

Huchet House was unable to provide E.K.B. with the round-the-clock assistance she needed, and it eventually notified the Division of Youth and Family Services ("DYFS") of its concerns. After a brief investigation, DYFS removed V.N.B. from E.K.B.'s care on June 9, 2005, and placed her with a foster mother. V.N.B. has resided with that foster mother since she was approximately one month old, and her foster mother wishes to adopt V.N.B.

At the trial, DYFS presented six witnesses: Elayne I. Weitz, Psy.D.; Alan J. Lee, Psy.D.; Brenda Whitaker, the director of Huchet House at the time of E.K.B.'s stay; and three DYFS employees who had handled various aspects of this matter: Sandra Bishop, Bruce Williams, and Nanette Lieggi. E.K.B. presented one witness, Jonathan Mack, Psy.D. She did not testify herself.

Dr. Weitz performed two bonding evaluations, one in May 2007, and one in March 2008 to assess the attachment between E.K.B. and V.N.B. During the first evaluation, Dr. Weitz observed E.K.B. and V.N.B., together with V.N.B.'s paternal aunt, L.L.J., who DYFS was considering as a potential placement for E.K.B. and V.N.B. She described V.N.B. as being "somewhat stiff . . . almost just stoically participating in the assessment."

Dr. Weitz interviewed E.K.B. separately. She testified that she found her to be "somewhat childlike and immature . . . [with] some auditory processing issues, and possibly some question of comprehension . . . ." At one point during the evaluation, V.N.B. became distressed and started to cry. E.K.B. was unable to console her.

Dr. Weitz also testified about her observation of V.N.B. with her foster mother, who brought her two other foster children with her. Dr. Weitz said she observed "a lot of happy, fun playfulness."

Dr. Weitz summarized her conclusions after the first evaluation in the following manner:

The other major piece of that was that I felt that [V.N.B.], who had been in the uninterrupted care of her foster mother for almost two years, would suffer severe and irreparable harm by being removed from her care because the foster mother had become [V.N.B.]'s psychological parent, meaning that she had really fulfilled the role of what we typically expect of a biological parent who brought a child into the world and maintained a relationship, that there was a strong bond between [V.N.B.] and her caretaker, that there was no bond between [V.N.B.] and her birth mother, that -- and the signs that I used to define were that in the birth mother's presence, [V.N.B.] would not relax. She was somewhat tense. She cried. She acted even clingy at times, which I know can sound like she is being affectionate, but really, children who are frightened will cling to almost any adult at times.

And I also find that when children have a strong attachment to a primary caretaker, and have learned that hugs bring consolation, that they know to do that with another adult when they are feeling frightened or distressed.

[V.N.B.] was not comfortable enough to move around. And again, none of the happiness and excitement that I saw in the foster parent evaluation was present in the birth parent evaluation, that it appeared to me that the caseworker was the one who calmed [V.N.B.] down, rather than it being her birth mother.

So I didn't see [E.K.B.] being someone that [V.N.B.] chose to be with, or even had any kind of reaction to by not being in her care.

Dr. Weitz testified about the second bonding evaluation, which she conducted in 2008. Her conclusions were the same. She also performed psychological testing. She found E.K.B. might exaggerate problems, be suspicious of others, and not be inclined to seek help when she needed it. She also found indications of rigidity and that E.K.B. tended to have inflexible views on child rearing. She said V.N.B. never fully relaxed during the evaluation. Dr. Weitz also testified that she found there was a close, relaxed relationship between V.N.B. and her foster family.

She summarized her opinions after the second evaluation thusly.

[M]oving her anytime now or in the future would cause severe and enduring harm because of that trust and that relationship that she had developed with that individual.

And because bonds with the primary caretaker are really the prototype of the kind of relationships that children and individuals then establish in all future relationships, it was critical that this relationship, this bond, be maintained so that she could establish self esteem and she could feel confident going forth and establishing other relationships with other meaningful people in her life.

Dr. Weitz did not believe that E.K.B. had the ability to remediate the harm V.N.B. would experience if she were removed from her foster family. She also believed that in light of E.K.B.'s limitations and the psychiatric problems from which D.B. suffered, V.N.B. was at risk in the future and that E.K.B. would be unable to recognize symptoms V.N.B. might experience and get the appropriate help for her. She noted:

Even with supervision, there is a lot of spontaneous and immediate decisions that often happen when you are with a child, and again, I don't think that she is able to see them, recognize them, and respond to those kinds of emergencies or spur of the moment reactions that a parent needs to have.

Dr. Lee also saw E.K.B. on two occasions, in September 2005 and in August 2006. In his first examination, Dr. Lee found E.K.B.'s psychological development and organization to be somewhat immature and undeveloped. He found defects in her coping skills and that she was inclined to poor judgment and decision making. He found a moderate degree of impairment in terms of her overall functioning. He noted that E.K.B.'s

cognitive and intellectual deficits and limitations, some of the depressive features that were noted, as well as some of the maladaptive aspects of her personality and functioning, could certainly contribute to a propensity for neglectful behavior while she might be trying to care for a minor child. And these same aspects could contribute to some insidious effects in terms of the child's well-being and development.

He found no significant difference when he saw E.K.B. the following year.

On appeal, E.K.B. raises the following contentions:

I THE EVIDENTIARY FINDINGS OF THE TRIAL COURT DO NOT SUPPORT A LEGAL FINDING THAT ALL FOUR PRONGS UNDER N.J.S.A. 30:4C-15.1a WERE MET IN THIS CASE

a. The first prong of the best interests test was not satisfied

b. The second prong of the best interests test was not satisfied

c. The third prong of the best interests test was not satisfied

i. Failure to Provide Consistent Visitation

ii. Failure to Provide Transportation

iii. Curtailment of Visitation Prior to Pre-trial Bonding Evaluation

iv. Failure to Follow Through on an Available Program that May Have Permitted Reunification

d. The fourth prong of the best interests test was not satisfied

II THE TRIAL COURT'S DELAY IN RENDERING JUDGMENT WAS DETRIMENTAL TO E.K.B. AND FURTHER HARMED THE BOND BETWEEN E.K.B. AND HER DAUGHTER

The United States and New Jersey Constitutions protect "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state . . . ." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). A proceeding to terminate parental rights does not give rise to a presumption of parental unfitness and all ambiguity should be resolved against the termination of the parent's rights. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The rights of a parent must be balanced against the State's "basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347). When parental abuse or neglect irremedially jeopardizes the safety and welfare of a child, the State must take the most extreme form of redress and completely terminate the parent's rights. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

The focus cannot be solely on the rights of the parent, but must also include the needs of the child. In re Adoption of Children by G.P.B., 161 N.J. 396, 403-04 (1999) ("Respect for parental rights also entails consideration of the rights of children."). The court should look to the best interests of the child, and the determination is "extremely fact sensitive." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (citations omitted). However, merely showing that the child will be better off with the adoptive family than with his or her natural parent is not sufficient. G.P.B., supra, 161 N.J. at 404.

In New Jersey, termination of parental rights must be in the best interests of the child, and the four statutory criteria of N.J.S.A. 30:4C-15.1 must be proven by clear and convincing evidence. A.W., supra, 103 N.J. at 611-12. The Division must show 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)(1)-(4); A.W., supra, 103 N.J. at 604-11.]

Those four factors are not "discrete," but, rather, "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. In this case, the trial court found that the Division established all four factors, warranting the termination of E.K.B.'s parental rights.

A

We turn to the first prong, that V.N.B.'s "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). We reject E.K.B.'s argument that DYFS failed to establish the element by clear and convincing proof.

E.K.B. asserts that the risk of any harm to V.N.B. is speculative at best. We disagree. DYFS presented clear and convincing evidence that E.K.B.'s limitations prevent her from recognizing and responding appropriately to V.N.B's physical and psychological needs. It is not sufficient, as E.K.B. attempted to develop in cross-examination, that she would feed V.N.B. if the child said she was hungry. A parent must be able to recognize and fulfill a child's needs without waiting for a prompt from the child.

That E.K.B. may not be to blame for that risk does not remove the risk to V.N.B., nor does it lead to custody being returned to her. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Further, the court is not required to refrain "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citing A.W., supra, 103 N.J. at 616 n.14). In certain cases, it is appropriate for a court to terminate parental rights solely because of a parent's mental impairment. See, e.g., A.G., supra, 344 N.J. Super. at 440 (affirming termination of parental rights where the parents did not have the "mental status sufficient to eliminate the risk of future harm to the child"). E.K.B.'s cognitive difficulty, compounded with depression, has rendered her judgment questionable at best. As Dr. Weitz pointed out, E.K.B. is unable to set boundaries for V.N.B. and despite "therapeutic intervention and parenting skills classes, there appears to be minimal change in [E.K.B.'s] psychological well-being or caretaking knowledge."

B

To satisfy the second prong of the best interests test, E.K.B. must not have cured and overcome the aspect of the parental relationship which endangered V.N.B.'s safety, health or development. N.J.S.A. 30:4C-15.1(a)(2).

"[T]he second element of the best interests standard must focus on the measures taken by the parent after the child's birth to maintain the parent-child relationship and to foster an environment leading to normal child development." K.H.O., supra, 161 N.J. at 352. Although E.K.B. has participated in various parenting classes, she remains unable to provide a safe and stable home for V.N.B. Her inability is not caused by a temporary setback that can be overcome with further training. Rather, it is the result of her own inherent limitations.

C

The court should next consider whether DYFS made "reasonable efforts" to provide E.K.B. with services that would help remedy the problems which caused V.N.B.'s removal in 2005. N.J.S.A. 30:4C-15.1(a)(3). As part of this evaluation, the court should consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3).

'[R]easonable efforts' mean attempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

[N.J.S.A. 30:4C-15.1(c).]

The success of DYFS's efforts or the accomplishment of actual reunification is not determinative of the sufficiency of DYFS's efforts. D.M.H. supra, 161 N.J. at 393. The evaluation should take into account the circumstances surrounding the given case. Ibid.

In the instant case, V.N.B. was removed from E.K.B.'s care in June 2005, when she was only one month old. DYFS worked with E.K.B. for more than three years to find a program through which she could receive twenty-four hour supervision and learn the requisite skills she would need to effectively care for her child. DYFS also made several attempts to locate a family member capable of assuming custody of V.N.B. and supervising interactions between her and E.K.B. All of these efforts were unsuccessful. The trial court correctly found that DYFS had established this prong by clear and convincing evidence.

D

The fourth prong requires proof that termination would not do more harm than good. In considering whether termination would do more harm than good, "the court is required to consider and balance the relationship of both the parent and the child, and determine whether the child will suffer greater harm from terminating the child's ties with the natural parents than from the permanent disruption of the relationship with the foster parents." A.G., supra, 344 N.J. Super. at 435 (citing K.H.O., supra, 161 N.J. at 355).

Dr. Weitz opined that V.N.B. would suffer "severe and enduring harm" if separated from her foster mother. Further, she determined, "[V.N.B.] is flourishing under her foster mother's care. She is not adversely affected by having minimal, or no contact with her birth parents. As such, I do not foresee her being traumatized by severing ties with them." The trial court rejected Dr. Mack's opinion that V.N.B. would only suffer distress if taken out of her foster mother's care, in favor of Dr. Weitz's opinion that there the harm would be severe and enduring. Its conclusion is strongly supported by the record.

E

E.K.B.'s final argument is that the three-month period between the conclusion of the trial and the court rendering its decision was detrimental to E.K.B. and further harmed her bond with V.N.B. In our judgment, this contention does not warrant discussion in a written opinion because it would have no precedential value. R. 2:11-3(e).

This case is, as was conceded by all attorneys below, truly sad. There is no doubt that E.K.B. truly loves her daughter. There is also no doubt, however, that she lacks the ability to function as V.N.B.'s parent. We cannot permit our sympathy for E.K.B. to blind us to our responsibilities to V.N.B.

The judgment under review is affirmed.

 

When the trial commenced, V.N.B.'s father, D.B., was a defendant. On the second day of trial, he executed a voluntary identified surrender of his parental rights and thus has not participated in this appeal.

L.L.J. was later ruled out because of issues related to her approval of corporal punishment and concerns she would not be able to give E.K.B. the supervision required.

(continued)

(continued)

15

A-2714-08T4

RECORD IMPOUNDED

February 26, 2010