NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.A.L.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3975-08T43975-08T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.A.L.,

Defendant-Appellant.

_____________________________________________

IN RE THE GUARDIANSHIP OF

M.A.L. and M.A.M.L.,

Minors.

_____________________________________________

 

Submitted January 11, 2010 - Decided

Before Judges Rodr guez, Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-67-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Chanima K. Odoms, Designated Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Deirdre C. Fichter, Deputy Attorney General, on the brief).

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

PER CURIAM

M.A.L. (birth mother) appeals from the Guardianship Judgment, terminating her parental rights to her minor children, M.L. (a boy age 10) and A.L. (a girl age 6). M.L.'s father resides in Port Au Prince, Haiti, and A.L.'s father resides in Elizabeth. Neither of the birth fathers participated in this action nor challenge the Guardianship Judgment. We affirm.

These are the salient facts. M.A.L. was born in 1980 in Haiti. She primarily speaks Creole, but she is capable of a basic line of communication in English. In late 2004, M.A.L. began dating a man named H.S. and moved her family in with him and his two children in early April 2005. A month later, on May 23, 2005, the Division of Youth and Family Services (DYFS) was first called about the family. According to a child protective service report, H.S. found A.L. (then two-years-old) in an unresponsive state and took her to the Jersey Shore University Medical Center (JSUMC). Upon arrival, she was breathing but was very lethargic; her right cheek and both hands were "puffy and swollen;" she had abrasions on her back, left cheek, and bruises on her left arm; and her lower left thigh, stomach, hands, and right buttock had marks that revealed bruises and lacerations in a healing state. There were also multiple bruises on her back, and her nose was infected with a peeling area that looked like an old burn. She was admitted to the pediatric intensive care unit (ICU).

Steven W. Kairys, M.D., a pediatrician, treated A.L. He indicated that in addition to the multiple bruises and lacerations, A.L. also had anemia that was so severe that it would have incapacitated an adult. The level of CPK (creatinine phosophokinase) in her blood was around 3,000, but the normal range is eighty. This was likely caused from a trauma to the muscle, caused by an "acute event" such as child abuse. Finally, she had both healed and new retinal hemorrhages in both eyes. The anemia, high CPK levels, and retinal hemorrhages, combined with numerous odd-shaped abrasions all over A.L.'s body caused Dr. Kairys enough concern to report it as a case of suspected child abuse.

Subsequently, M.A.L. stipulated that A.L. suffered injuries consistent with Dr. Kariys's report while in her care. A DYFS investigator came to the hospital to interview the family. H.S. told the investigator that, after taking M.A.L. to work, he fed A.L. a breakfast of spaghetti and juice. It was normal practice for H.S. to watch A.L. while M.A.L. worked and M.L. was in school. H.S. said A.L. was falling asleep in her chair, so he put her down for a nap at 10 a.m. At 2:45 p.m. he tried to wake her and she was unresponsive, so he shook her, performed CPR, and called 911. H.S. denied abusing or neglecting the children and said that A.L.'s scratches were from allergies.

The investigator interviewed M.A.L., with the help of an interpreter, and she said that she gave A.L. a spaghetti breakfast that morning, then took M.L. to school and went to work. She called home that day during lunch and H.S. told her that A.L. was fine and had rice and beans for lunch.

M.A.L. consented to a fifteen-day placement of M.L. with family friends while more information about A.L.'s injuries was gathered. A.L. remained in ICU.

The next day, a DYFS caseworker interviewed M.L., who was then six-years-old. M.L. said that his mother gives him "whippins" with a belt on his hands and his chest. He also indicated that H.S.'s son pushes and hits him and he is scared of him.

A.L. was discharged from JSUMC on June 2, 2005. DFYS was given temporary custody and placed her in a home for medically fragile children. Several days later, DYFS filed a Verified Abuse/Neglect Complaint. Docket No. FN-13-223-05. On that same date, Judge James J. McGann signed an order placing M.L. and A.L. in the immediate custody, care, and supervision of DYFS and assigned the children a Law Guardian.

M.A.L. and H.S. were allowed visitations with the children. The first occurred on June 6, 2005. During the first visit, A.L. went straight for her mother and hugged her, but cried hysterically when H.S. tried to hold her. As A.L. continued to cry every time she saw H.S., future visits were made with M.A.L. and the children only.

Both children were placed in foster homes a few months later. Attempts to place the children with relatives were unsuccessful. M.L. had been living with his maternal aunt, but he was sent to a foster home because the aunt's home was too small and several people shared a single bed. A maternal cousin, N.S., was evaluated, but her house was not big enough to accommodate the children and she lacked the financial resources to care for them.

In October 2005, a DYFS social worker was called to school because M.L. was acting out of control. M.L. was taken to Riverview Medical Center. There, he told social workers that he wanted to jump off a building, that he wanted to die, and that he wanted to go live with Jesus. M.L. told the social worker that he wanted her to be his "mommy" and that he did not want to go home with his "real mommy." He said that both M.A.L. and H.S. beat him and the other children. He displayed scars on his shoulder and arm and said they were from being hit with a belt. He also said that H.S. told M.A.L. to hit A.L. and that is how she got the scar on her nose. M.L. was admitted to the Monmouth County Medical Center. There, he was put on several medications for impulsive behaviors, attention deficit disorder, depression, and conduct disorder. When told about M.L.'s condition, M.A.L. laughed and left the room.

Chester E. Sigafoos, Ph.D., a clinical psychologist, performed an evaluation on M.A.L. She told Dr. Sigafoos that A.L.'s biological father physically and sexually abused her three or four times a week, but she never called the police. She denied that any domestic violence had occurred between her and H.S. The evaluation revealed that she has limited intellectual functioning. This condition may interfere with her ability to care for children. Her inability to accurately perceive events in her life "contribute to her inability to accurately [assess] situations . . . thus causing harm to her child." She has "limited tolerance for frustration and a tendency toward emotional outbursts and impulsive actions . . . [which are] likely to interfere with her ability to function effectively as a parent." Dr. Sigafoos opined that M.A.L. could not effectively parent her children and ensure their safety and well being.

Alexander Iofin, M.D., a child and family psychiatrist, evaluated M.A.L. Again, M.A.L denied that there was any domestic violence in the household she shared with H.S. M.A.L. completed culturally appropriate parenting classes in May 2006. Dr. Iofin recommended follow-up mental health treatment.

Margaret S. Beekman, Ph.D., a psychologist, met with the family unit on several occasions from November 2006 to January 2007. Based upon M.L.'s desire not to make visits and his diagnosis of post-traumatic stress disorder, Dr. Beekman recommended that M.L. cease visitation with his mother.

Judge Michael A. Guadagno suspended M.A.L.'s visitations with M.L. and ordered both M.A.L. and H.S. to attend counseling. M.A.L. began counseling at the YMCA with Tom Hansen, L.C.S.W.

Although A.L. wanted to visit her mother initially, a few months later she began to say that she did not want to visit her mother. She repeated these requests month after month. At one point, a social worker told A.L. she could whisper into her ear if she wished to leave a visit. A.L. did whisper into the social worker's ear once, saying she wanted to leave and that she was scared. The visit was terminated.

A year after the first visit, Dr. Sigafoos re-evaluated M.A.L. He found that she had made little improvement. He opined that she could not effectively parent her children and provide for their safety and well being. He said that consistent treatment could result in progress after one to two years.

Dr. Sigafoos performed a bonding evaluation of M.L. and his foster parents and A.L. and her foster parents. He opined that M.L. is "strongly attached to his current caregiver." He also opined that A.L. has "a strong attachment to her current caregiver."

Eventually, M.A.L. admitted that H.S. was physically abusive and even sought a restraining order against him. However, in August 2007, M.A.L. said she no longer wanted to cooperate because she did not want to get H.S. in trouble. She recanted her story to the detectives. She also said she was not going to participate in counseling or take any psychiatric medications. She assured the case worker that she did not live with H.S. and was finding her own place. She repeatedly refused to disclose her address to the DYFS workers. Subsequently she told the social worker she was living with H.S. until December 2007.

On November 15, 2007, DYFS filed this Guardianship proceeding and served M.A.L. and the biological fathers to show cause why the court should not enter a final order terminating their parental rights over M.L. and A.L.

Due to A.L.'s constant requests not to visit her mother, Judge Terence P. Flynn ordered DYFS to arrange for a therapeutic visitation between A.L. and M.A.L. The visits were supervised by Healing Hearts. A.L. indicated prior to the visits that she did not want to see her mother. After the first visit, A.L. said she did not want to come back. She was tense around her mother. M.A.L. was easily frustrated by A.L.'s response to her. A parenting profile revealed that M.A.L. was high risk in the areas of inappropriate parental expectations and medium risk for her belief in the use of corporal punishment. After the second visit, Healing Hearts recommended that it was in A.L.'s best interest that the visitations cease. Judge Flynn ordered that A.L. be psychologically evaluated. Dr. Sigafoos performed an evaluation and found that A.L. showed "obvious behavioral signs of fear and apprehension about seeing her mother." He found no influence by the social workers and that these were A.L.'s own emotions and feelings.

Lori Lessin, PhD., a psychologist, performed an evaluation on M.A.L. in May 2008 and found that she was reserved during the evaluation and acted as if she did not want to participate. M.A.L. told Dr. Lessin that it had occurred to her that H.S. may have hurt A.L., but that he convinced her otherwise. She said she continued to live with H.S. after the incident with A.L.'s hospitalization, but she had no explanation as to why she stayed. She left only after H.S. began hitting her. She indicated A.L.'s birth father had also been abusive.

Dr. Lessin conducted a bonding evaluation of M.A.L. and her two children. At one point, A.L. whispered in Dr. Lessin's ear that she no longer wished to stay in the room with her mother. M.L., however, said he wanted to stay and cried at the end of the session, saying he wanted to resume visitations with his mother.

Dr. Lessin found that M.A.L. "lacks insight," specifically testifying in court that:

[M.A.L.] denied any responsibility for anything that was happening. She knew nothing about why her child was injured, did not seem . . . moved by concerns about the possibility that her paramour may have hurt her children . . . changed her story based on who was interviewing her and different times said she had been physically abused, had not been physically abused. She made a report that [H.S.] had . . . admitted to physically abusing [A.L.], [then] told me on [another] day that she had never said those things.

. . .

[S]he would not be able to protect her children in any given situation, any similar situation; she does not possess the insight to avoid abusive relationships, does not necessarily recognize them as abusive; and does not recognize when her children need her protection and . . . would not be able to competently parent these children.

Judge Flynn presided over the Guardianship trial. DYFS called several witnesses. Dr. Kairys testified about A.L.'s medical condition upon arrival at the hospital in May 2005. Dr. Lessin testified, as stated above, that M.A.L. lacked the insight to be a parent and could not protect her children.

M.A.L. testified that she never saw H.S. hit the children in front of her. She was the one who bathed A.L. and did not notice any bruises or lacerations on her back. When she left for work the day of A.L.'s hospitalization, A.L. did not have the infected laceration/burn on her nose. This laceration occurred because H.S. pinched A.L.'s nose to make her eat. He also beat A.L. with a belt because she refused to eat. H.S. told her not to tell the police that he had beaten A.L. and instead to blame A.L.'s condition on allergies.

Elsewhere in her testimony, M.A.L. asserted that H.S. did not hit the children. She continued to live with H.S. for one to two years after the incident and only moved out after H.S. began being abusive to her by hitting her and trying to fill the house with gas from the stove. M.A.L. sought a restraining order against H.S., but asked for it to be dismissed after H.S.'s family members pleaded with her to withdraw it. H.S. also had a restraining order against M.A.L. which he withdrew the same day that M.A.L. withdrew hers against him.

On March 3, 2009, Judge Flynn rendered an oral opinion, finding that DYFS established the four prongs of the best interests of the child standard by clear and convincing evidence. He referenced the report and testimony of Dr. Kairys and found that A.L.'s anemia was so severe that M.A.L. should have recognized that her daughter was ill and needed treatment. He also found that A.L. had elevated CPK levels and retinal hemorrhages that were both the results of non-accidental trauma. Further he found that the lacerations on her body were not the result of scratching, as they were oddly shaped and in places a child could not reach. He concluded that A.L. had been "physically abused, likely shaken baby syndrome, and medically neglected, as her parents did nothing to rectify her situation."

In regards to prong one of the "best interests of the child" standard, N.J.S.A. 30:4C-15.1, Judge Flynn found that "both [M.A.L.] and [H.S.] were involved in the physical abuse of both her [children]." He also found that M.A.L. "was aware of it if not tacitly complicit in . . . shaken baby syndrome, of [A.L.]." Further, the judge found "that the situation will continue . . . [as] evidenced by the willing decision by [M.A.L.] to continue the relationship with . . . someone who has abused her children."

As to prong two, Judge Flynn found that M.A.L. has been "unwilling" or "unable" to remove H.S. from her life, even knowing that he abused her children. He noted she followed H.S.'s advice and rejected counseling and medication and that essentially all she has done is complete a parenting course. Though M.A.L. made every court appearance, the judge found she "behaved outside the courtroom in a way inconsistent with the desire to make the changes necessary." Finally, he concluded that even if M.A.L. had the desire to make the changes necessary, based upon her psychological evaluations there is a question of whether she is even capable of doing so.

As to prong three, Judge Flynn found no other way to protect the children other than termination of parental rights. There were no other related caregivers who have come forward. He noted the biological fathers' parental rights could have been terminated long ago by way of abandonment. He found that DYFS provided numerous services to M.A.L. such as counseling, psychiatric evaluations, medications, and visitations with her children. DYFS also tried to assist M.A.L. with her own domestic violence situation, but she would not cooperate. Judge Flynn noted this was not M.A.L.'s first abusive relationship and it is unlikely that she will change in the future. The judge was satisfied that DYFS "has done all that it reasonably could to correct the problems, and the circumstances leading to the placement of the child out of the home. In fact, they could do little more[.]"

In terms of the fourth prong, which requires that the termination does not do more harm than good, Judge Flynn found that A.L. is with a caregiver who wishes to adopt her and that visitation with M.A.L. would do A.L. far more harm than good. Unfortunately, there is no actual commitment for a permanent placement for M.L., "but it is moving in the right direction."

M.A.L. appeals. Essentially, she argues that the four prongs of the governing standard were not proven and she seeks a reversal.

The governing standard is well known. A parent's interest in maintaining a relationship with his or her child is a fundamental constitutional right which has long been protected by both the Supreme Court of New Jersey and the Supreme Court of the United States. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986); Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972). However, the rights of the parents are balanced against the State's parens patriae responsibility in protecting a child's welfare. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Courts balance these competing rights through the application of the "best interests of the child standard," set by the Legislature in N.J.S.A. 30:4C-15.1(a). To terminate one's parental rights, the following four-prong test must be met:

(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;

(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).]

These four criteria are not discrete and separate, but rather "they relate and overlap with one another to provide a comprehensive standard that identifies a child's best interest." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009) (quoting N.J. Div. of Youth & Family Family Servs. v. G.L., 191 N.J. 596, 605 (2007)). Each of the four prongs must be proven by clear and convincing evidence. N.J. Div. Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). See also Santosky v. Kramer, 455 U.S. 745, 768-70, 102 S. Ct. 1388, 1402-03, 71 L. Ed. 2d 599, 616-17 (1982). The primary question "is not whether the biological parents are fit[,] but whether they can cease causing their child harm." J.C. supra, 129 N.J. at 10. Because the parental relationship is of such importance, "all doubts are to be resolved against its destruction." In re Adoption by D., 61 N.J. 89, 93 (1972).

Here, we serve a limited role in reviewing a trial court's determination to terminate parental rights. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The factual findings of the trial court "should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (citations omitted). See also A.R., supra, 405 N.J. Super. at 433 ("[W]e must afford great deference to the Family Part's findings of fact and conclusions of law based on those findings.") So long as the trial court's decision is based upon "adequate, substantial[,] and credible evidence" in the record, the appellate courts should uphold the findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007).

Here, based on careful review of the record, we conclude that the judge's findings are supported by adequate, substantial, and credible evidence. Ibid.

M.A.L. argues that prong one is not satisfied because she was not the perpetrator of abuse against A.L. and M.L., but rather that it was H.S. who was physically abusive. This argument is contrary to the law. Pursuant to the first prong of the best interests standard, "the harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re K.H.O., 161 N.J. 337, 352 (1999). As Judge Flynn properly noted in his opinion, the Supreme Court has terminated parental rights where a parent himself was perfectly fit to raise a child but "failed to provide a home in which the [child] was not in constant danger." M.M., supra, 189 N.J. at 281-82.

Here, Dr. Kairys' medical reports alone demonstrate that M.A.L. neglected to seek medical attention when A.L. was suffering with severe long-term anemia. More importantly, Judge Flynn found that M.A.L. was also involved in abusing the children both by placing them in an abusive situation, physically abusing them herself, and medically neglecting A.L. This was supported by M.L.'s repeated statements to various social workers and psychologists that both M.A.L. and H.S. had beaten him. M.L. also stated that M.A.L. was the one who lacerated A.L.'s nose, upon H.S.'s command.

M.A.L. argues she is no longer living with H.S., therefore the potential risk of harm to the children has been removed. However, M.A.L. was willing to stay with an abuser and her inconsistent stories regarding how long she was with H.S. and the extent to which he was abusive demonstrates her inability to parent. Such a willingness to stay with H.S. even after he beat her and her children, coupled with the fact that she has been in abusive relationships before, supports Judge Flynn's finding that M.A.L. is unwilling or unable to remove harm from her children's life.

The second prong of the best interests test will be met when a 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." N.J.S.A. 30:4C-15.1(a)(2). In this context, the harm "involves the endangerment of the child's health and development resulting from the parental relationship . . . the focus is on the effect of the harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348 (internal citations omitted). Evidence satisfying the first prong may also satisfy the second prong. In re D.M.H., 161 N.J. 365, 379 (1999).

M.A.L. also argues that DYFS did not foster her relationship with the children and that the children could have been placed with N.S., a cousin. There is adequate, substantial, and credible evidence in the record to support Judge Flynn's finding that prong two is satisfied. M.M. supra, 189 N.J. at 279. M.A.L.'s visitations only ceased after psychiatric evaluations found it was in the children's best interests not to visit their mother. Further, both children expressed a desire to stop the visitations. DYFS also provided numerous resources such as counseling, psychiatric, psychiatric medication, and parenting classes as a way of helping M.A.L. regain custody of her children. DYFS evaluated N.S. as a possible placement for the children, but found her house was too small and she could not financially provide for them. This satisfies prong three.

M.L.'s current foster parent indicates a desire to adopt him. A.L.'s foster parents also indicate a strong desire to adopt her, as conceded by M.A.L. Dr. Lessin concluded that it was not in the children's best interests to be returned to their mother. This amply meets prong four.

 
Affirmed.

M.A.L. and her children have the same initials. To avoid confusion, this opinion will omit the boy's middle initial and refer to him as M.L. The girl does not use her first name. We refer to her as A.L.

(continued)

(continued)

2

A-3975-08T4

RECORD IMPOUNDED

February 2, 2010