NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4661-08T44661-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.J.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF K.M.S., H.B.S., JR. AND K.E.J.,

minors.

________________________________________________________________

 

Submitted February 22, 2010 - Decided

Before Judges Lisa, R. B. Coleman and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-61-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean M. Hartmann, Designated Counsel, on the brief).

Paula T. Dow, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Lisa Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors K.M.S., H.B.S., Jr. & K.E.J. (Melissa Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant, S.J., appeals from a judgment of guardianship terminating her parental rights to her sons, K.M.S. (born July 13, 2005) and H.B.S., Jr. (born December 28, 2006), and her daughter, K.E.J. (born April 1, 2008). Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm the termination order. We are satisfied from our review of the record that the Division presented sufficient evidence to support Judge Melendez's finding that all four prongs were clearly and convincingly established. We therefore affirm.

I

The Division received several referrals for defendant beginning in late 2005. Medical neglect of K.M.S. was substantiated in February 2006. A March 9, 2006 DYFS contact sheet entry reveals that K.M.S., who was then eight months old, had never received immunizations, and that defendant had been noncompliant with drug evaluations scheduled by DYFS. On April 17, 2006, a DYFS caseworker noted a lack of food in defendant's home for K.M.S. Defendant continued to resist the Division's efforts to obtain drug treatment for her, and on May 5, 2006, the Center for Family Services closed its case as "non-compliant."

A June 27, 2006 psychological evaluation by Larry N. Seidman, Ph.D. resulted in a diagnosis of mild mental retardation, chronic adjustment disorder with anxiety, and dependent personality disorder. Seidman also opined that defendant might be "self-medicating through the use of illegal drug(s)." He stated that defendant's intellectual and adaptive limitations met the criteria for the Division of Developmental Disabilities (DDD) for Limited Guardianship, and that defendant should seek this and other services through DDD. He recommended a psychiatric evaluation and in-home supportive and instructive counseling. In anticipation of potential support from DDD, in-home counseling, and appropriate psychiatric intervention, he expressed the view that defendant "appears" to have "the psychological wherewithal to maintain custody of her son [K.M.S.]."

On June 13, 2007, the Division received a referral expressing concerns about K.M.S. and the newborn H.B.S., Jr., who appeared "very undernourished and skinny." The referent expressed concern that defendant is "very slow mentally and has a lot of people living in the one bedroom apartment with her and she is afraid to put them out." A caseworker visited defendant's apartment complex and was advised by the manager that "there are all kinds of people coming in and out of the apartment and the neighbors are constantly complaining of a smell of marijuana from the apartment." The manager advised that eviction was imminent and commented that it was "obvious" that defendant was "mentally challenged." Additionally, the manager expressed concern about malnourishment of K.M.S.

After talking to the manager, the caseworker knocked on defendant's apartment door for fifteen minutes without any answer, although the caseworker could hear a baby crying inside. Fearing the infant was alone, the caseworker called the police. The police officer and caseworker continued knocking for ten more minutes, until defendant finally opened the door. When asked why she had not responded for forty minutes, defendant said she was asleep and did not hear the knocking. Although the infant did not appear malnourished and there was sufficient formula present for him, there was very little food for K.M.S. to eat and no diapers for either child. The caseworker informed defendant and H.B.S. that she could not leave without confirming that the children had enough food and diapers to last through the weekend. H.B.S. said he would go out to purchase them. Defendant stated she was receiving $654 in SSI benefits and $252 per month in food stamps and vouchers.

Thirty-five minutes later, the police found H.B.S. wandering in the parking lot, claiming he had no money to purchase the diapers. Defendant then called her cousin, M.T., who brought over some cereal and diapers. The cousin privately told the caseworker that defendant is "slow" and needs help caring for her children.

The caseworker was also concerned because defendant had apparently exhausted her financial resources for the month, even though it was only halfway through the month, and even though her rent was only $104 per month, which included hot water. Defendant could not answer the caseworker's questions regarding her finances. Later that day, the caseworker met with K.S., a relative of H.B.S., who expressed concern that defendant was unable to feed and bathe her children. The caseworker and defendant then went to the supermarket, where the caseworker purchased ninety diapers and food for the children. Upon returning to the apartment, M.T. informed the caseworker that defendant gives away all of her money to H.B.S.

On July 6, 2007, DYFS was informed by Family Preservation Services (FPS), to which DYFS had referred defendant, that, although the month was less than one week old, defendant was down to only $38 on her Family First Card and had no other money. Defendant said she had given the card to a family member who must have used all of the money. When confronted by the FPS worker about the seriousness of allowing family members to take advantage of her financially, defendant said she thought this was justified because they were part of her family. The FPS worker said that, despite repeated instructions, defendant could not comprehend instructions she was given. For example, defendant repeatedly left H.B.S., Jr. alone in the bathtub. The FPS worker told the DYFS caseworker that defendant "is just not getting it."

Between June 20 and July 10, 2007, FPS provided more than twenty-seven "face-to-face" hours with defendant, providing instruction on budgeting and parenting skills. The FPS report reveals that defendant did not respond to these instructions. On July 10, 2007, FPS terminated services because "they had concerns with the birth mother not understanding any of the assistance they offered . . . on parenting, care of the household and children."

On July 9, 2007, the Division removed the children from defendant's custody and placed them in separate foster homes.

On July 18, 2007, Martha Boston, Ph.D. conducted a psychological evaluation of defendant. She concluded that defendant is mentally retarded and that her "parenting knowledge and skills do appear to be a problem or concern at this time." She found defendant "unable to appropriately care for her children or to protect herself from her family because of her level of cognitive functioning."

On April 1, 2008, defendant gave birth to K.E.J., who was placed on April 5, 2008 in the foster home in which H.B.S., Jr. resided. Defendant visited her children weekly. However, on one occasion when observed by the caseworker, defendant appeared to be totally unengaged with them.

Defendant was evicted from her apartment in April 2008. She moved in with her brother and mother. From the time of her eviction in April 2008, until October 2008, defendant largely fell out of contact with the Division. When later questioned on this, defendant was unable to provide an explanation. When a DYFS supervisor explained to defendant that the Division was going to set up a bonding evaluation between her and her children, defendant did not understand what the supervisor was trying to explain to her.

All three of the children are "special needs" children. K.M.S. has ADHD. The two younger children have language delays, H.B.S., Jr. being severely delayed.

On August 4, 2008, Dr. Leon I. Rosenberg conducted a psychiatric evaluation. He concluded that:

Perhaps treatment with an antidepressant would get her to function better. . . . [And] perhaps a combination of psychotherapy and medication management may get her to function at a much higher level. At the present time, based on my evaluation and the review of the report of Dr. Boston [t]his patient cannot manage the care of her children.

[Emphasis added.]

On December 9, 2008, Chester E. Sigafoos, Ph.D. conducted a psychological evaluation of defendant and a bonding evaluation between her and her three children; he also conducted a bonding evaluation between the children and their foster parents. In an exhaustive thirty-one page single-spaced report, Dr. Sigafoos emphatically concluded that defendant cannot adequately parent her children or ensure their safety and well-being. He further concluded that defendant lacks the ability to learn and retain information and that such inability is immutable. "In other words, she could attend parenting classes for the next three years, but few if [any] of this information will be retained and used by the [defendant] to parent her children." Dr. Sigafoos testified at trial that "[t]ermination of the parental rights would be in the best interest of the children."

With respect to the bonding evaluations, Dr. Sigafoos concluded that the nature of the attachment between defendant and her children was of an "insecure avoidant bond." He noted that the children were more interested in their environment or strangers than they were in defendant. Dr. Sigafoos concluded that the children had a secure attachment to their foster parents and would suffer serious harm if removed from their care. Although he said K.M.S.'s foster parent would benefit from additional parenting guidance, he was of the view that K.M.S. used his foster mother as a "secure base" and responded positively to her. He concluded that H.B.S., Jr. and K.E.J. had a "very healthy attachment bond" with their foster parent. Dr. Sigafoos testified consistently with his report at trial.

Defendant testified at trial. She said she lives in a two-bedroom house in Camden with her "aunt," E.T., who apparently is the daughter of the woman who raised defendant and who would help take care of the children if she were to get them back. She also testified that she was currently pregnant.

E.T. testified and said she was working at Shop Rite approximately thirty-three to forty hours per week. She said she wanted defendant to get the children back and would be willing to help raise them. She also described her criminal history, which included a drug offense among others. E.T. said she had not seen K.M.S. in approximately one-and-one-half years, she had not seen H.B.S., Jr. in almost two years, and she had not seen K.E.J. since she was born. E.T. said she was then living in a two-bedroom home in Camden and had been living there since 2008. The Division's rule-out letter was sent to E.T. in July 2008 to a Clementon address. E.T. testified that she had been living in Clementon as of late 2007.

The trial was conducted on March 9 and 10, 2009. Judge Melendez heard the testimony of Dr. Sigafoos and a Division caseworker, as well as defendant and E.T. She received in evidence voluminous documents. Based upon her consideration of the testimony and documents, she issued a comprehensive twenty-five page written decision on April 9, 2009. She made detailed findings of fact and concluded that the Division satisfied its burden of proving by clear and convincing evidence all four prongs of the best interest test. She therefore entered a judgment of guardianship terminating the parental rights of defendant and H.B.S.

II

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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-15.1a.]

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria overlap with one another to provide a comprehensive standard that identifies a child's best interest. K.H.O., supra, 161 N.J. at 348.

New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998).

III

We reject defendant's argument that the judge's factual findings on the first prong were not clearly and convincingly established. The record contains substantial credible evidence that the children's immunizations were not being attended to, there was inadequate food and diapers in the house, marijuana was being used in the home, defendant would leave the children unattended in a bathtub full of water, and defendant was unable to manage her finances so as to provide for her children's basic needs. Various experts established that defendant lacks the mental and cognitive capabilities to care for her children. The endangerment to the health, safety or development of the children arising from defendant's inability to parent or care for them is amply supported by the record.

Defendant argues that prong two was not satisfied because "the court failed to explain why Dr. Sigafoos' opinion . . . was more credible than [Drs. Seidman's and Rosenberg's] prior opinions - expressing the possibility of [defendant] acquiring the skills necessary to parent her children." Defendant argues it was error to adopt Dr. Sigafoos' conclusions without analyzing what defendant characterizes as the "impeaching effect[s]" of the other two expert reports. Defendant argues that the judge's conclusions on prong two were the "judicial equivalent of a net opinion." We do not agree.

Judge Melendez found that defendant has mental and cognitive limitations which render her unable to provide the level of parenting that her three special needs children require. The record contains substantial credible evidence in support of this finding. As we have discussed, Dr. Sigafoos concluded that defendant's inability to parent her children was "immutable." While Dr. Seidman opined that if defendant were to receive proper services and psychiatric intervention, she "appears" to possess the wherewithal to maintain custody of K.M.S., that report was issued in August 2006 when defendant had only one child. By July 2007, defendant had two children, and at that time Dr. Boston concluded that defendant was "unable" to appropriately care for them. Additionally, although Dr. Rosenberg's August 2008 report concluded that she "may" function better with extensive psychological intervention and medication, his actual conclusion at the time of evaluation was that defendant "cannot manage the care of her children." Further, various DYFS reports noted that defendant seemed unable to comprehend instructions given to her regarding budgeting and parenting skills.

The judge did not err in failing to consider any "impeaching effects" of various expert opinions. The judge was entitled to attribute substantial weight to the opinions rendered by Dr. Sigafoos. Moreover, the totality of the various expert reports overwhelmingly supports the conclusion that defendant lacks the ability to parent these special needs children and is therefore "unable to eliminate the harm" facing them. The additional requirement under the second prong, that delay of permanent placement will add to the harm, is also well supported by the evidence. Such harm may include evidence that separating the children from their resource parents would cause serious harm. N.J.S.A. 30:4C-15.1a(2). This aspect of prong two was satisfied by the results of the bonding evaluation performed by Dr. Sigafoos, which established that the children were not bonded with their mother, were bonded with their foster parents, and that their removal from their foster parents would cause them more serious and enduring harm.

Prong three "requires DYFS to undertake diligent efforts to reunite the family. That prong contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted).

The judge found that the Division made reasonable efforts to provide services to defendant to help correct the circumstances which led to the children's removal. She found that the Division's efforts "focused on ensuring the parents were provided with the skills necessary to safely parent. To this end, the Division provided both parents with evaluations by mental health professionals and scheduled the services recommended by those reports."

Defendant does not dispute that the Division offered her numerous services. She disputes that services offered her constituted "reasonable efforts," because, according to defendant, "they were not tailored to [her] special needs, nor did they comply with the Division's own experts' recommendations." Citing her diagnosis of mental retardation, defendant believes that because she was unable to absorb the information taught to her by FPS regarding budgeting and parenting skills, such efforts by DYFS were unreasonable. We disagree.

Defendant is correct that the reasonableness of the Division's efforts depends on the facts of the individual case. In re Guardianship of DMH, 161 N.J. 365, 390 (1999). However, it is equally true that the reasonableness of the Division's efforts "is not measured by their success." Id. at 393; N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007). Accordingly, it is incorrect that the parenting and budgeting classes offered by DYFS through FPS were not reasonable because defendant failed to understand and absorb the instruction provided.

FPS provided more than twenty-seven "face-to-face" hours of instruction to defendant regarding basic parenting and budgeting skills. Dr. Sigafoos concluded that her inability to learn the required skills necessary to parent the children was immutable. The judge's finding that the Division made reasonable efforts to remedy the circumstances leading to the placement of the children is supported by the record. That defendant was unable to utilize or understand FPS's advice and instructions does not change the fact that the services provided were reasonable. DMH, supra, 161 N.J. at 393.

Prong three also requires that the court consider alternatives to termination of parental rights. Defendant argues that the trial court erred in finding that the Division adequately investigated E.T. before ruling her out as an available placement. She argues that E.T.'s numerous criminal convictions could not provide a basis upon which to rule E.T. out because there was inadequate "proof of any culpability on . . . E.T.'s part, aside from the convictions themselves." Defendant alleges that because the Division "did not present evidence of the underlying conduct of . . . E.T.'s [guilty] pleas . . . E.T. was free to repudiate the underlying facts of the pleas and did so." Defendant also notes that E.T. would have been willing to rearrange her work schedule to care for the children. We find these arguments unpersuasive.

In finding that the Division properly ruled out E.T., the judge apparently rejected E.T.'s explanations for her convictions. There is no authority in support of defendant's contention that the Division was required to present evidence of the underlying facts giving rise to E.T.'s guilty pleas, in order for the judge to conclude that the Division properly ruled her out. Moreover, the judge noted that E.T. could not provide the proper care for these three special needs children because of her work schedule and the fact that she lived in a two-bedroom house. She also noted that E.T. apparently had not kept DYFS informed of her address changes, and therefore allegedly did not receive the rule-out letter, which she did not appeal.

Given the judge's findings regarding E.T.'s admitted criminal history, her work schedule, the size of her house, the amount of time elapsed since she had last seen the children, and her failure to inform DYFS of her whereabouts (all of such findings being supported by substantial credible evidence in the record), the judge was well within her discretion to find that the Division properly ruled out E.T. as a possible permanent caretaker of the children. In considering the adequacy of DYFS' consideration of alternatives to termination of parental rights, primacy must be given to the best interests of the child. N.J.S.A. 30:4C-15.1a. The judge properly found that the children's best interests were served by remaining with their current foster caretakers.

Under prong four, DYFS was required to prove by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). There is an inherent risk of harm to a child associated with termination of parental rights. K.H.O., supra, 161 N.J. at 355. Therefore, the State need not prove that the child will suffer no harm, but rather the issue is whether, after considering both relationships, "the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." Ibid. Thus, the fourth prong is "related to the first and second" prongs because all require consideration of harm to the child caused by the parent-child relationship. DMH, supra, 161 N.J. at 384. Moreover, "to satisfy the fourth prong, the State should offer testimony of a well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." See, e.g., N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (internal quotation marks omitted).

Defendant again points to what she characterizes as the judge's "adoption" of Dr. Sigafoos' conclusions while "ignoring" the other doctors' opinions. She argues that "the trial court failed to make the fact sensitive inquiry to support a prong four determination that would support termination of [defendant's] parental rights."

The judge found that prong four was satisfied because the bond between the children and defendant was weak, while the bond between the children and their foster parents was strong. The judge further found that defendant would be unable to mitigate the damage the children would suffer if removed from their foster parents. Accordingly, she concluded that termination of parental rights would not do more harm than good.

The judge's findings regarding the relative strength of the bond between the children and defendant versus the children and the foster parents are well supported by the expert testimony and expert reports. The record well supports the finding that defendant does not posses the mental and cognitive capability to adequately parent these children. There is also substantial credible evidence that the children are doing well under the care of their foster parents. Accordingly, the judge did not err in concluding that termination of parental rights would not do more harm than good.

 
Affirmed.

The parental rights of the father of the children, H.B.S., were also terminated, but he has not appealed.

(continued)

(continued)

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A-4661-08T4

RECORD IMPOUNDED

March 24, 2010