NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.H IN THE MATTER OF THE GUARDIANSHIP OF D.N.M., JR. and G.A.H

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5904-08T45904-08T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.H.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF D.N.M., JR. and G.A.H.,

Minors.

__________________________________

 

Submitted April 20, 2010 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Mercer County,

No. FG-11-33-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Beth Anne Hahn, Designated Counsel,

of counsel and on the briefs).

Paula T. Dow, Attorney General, attorney for

respondent (Melissa Raksa, Assistant Attorney

General, of counsel; Lisa B. Landsman, Deputy

Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for respondent minors

(Amy Vasquez, Designated Counsel, on the brief).

PER CURIAM

S.H. appeals from a trial court judgment terminating her parental rights with respect to her two children, D.N.M., Jr. ("D"), born on July 10, 2003, and now nearly seven years old and G.A.H ("G"), born on December 12, 2006, and now three years old. D's father has executed a voluntary identified surrender of his parental rights and G's father is unknown. After reviewing the record in light of the contentions advanced on appeal, we affirm.

S.H. unfortunately has a long history of substance abuse problems and mental health problems. S.H. herself was placed in foster care several times as a child. Her first contact with DYFS with respect to her own children occurred in June 2004 when a social worker at Robert Wood Johnson Hospital notified DYFS that S.H. had come to the hospital seeking treatment for a urinary tract infection; at the hospital, S.H. admitted smoking marijuana, and was seeking Vicodin and exhibiting signs of depression, for which she was taking Zoloft. She was twenty-three years old, D not yet one.

By July 2004, DYFS took custody of D because S.H. refused to participate in a substance abuse evaluation, as had D's father. DYFS had, in the interim, received another referral with respect to S.H. from an individual who had observed her, her current boyfriend and D at a municipal court proceeding. When D exhibited signs of distress, the boyfriend took the baby, and started to yell at him and shake him. S.H. expressed no distress at this but, rather, said that D was a bad child who was on medication for his behavior. S.H. did not submit to a drug assessment until finally ordered by the court to do so. The results were positive for marijuana, cocaine and ecstasy.

Following DYFS's assumption of custody of D, and the filing of a complaint and order to show cause alleging abuse and neglect, DYFS made extensive efforts to locate programs to assist S.H. She was ejected from a number of these programs because of her behavior. Eventually, the agency supervising her visits with D refused to continue in that role because of her abusive behavior.

After the initial removal of D, S.H. began a counseling program at Princeton House Behavioral Health ("Princeton House"). Princeton House suspended her as of August 24, 2004, because of her angry outbursts during group therapy sessions. In February 2005, the trial court ordered S.H. to attend substance abuse treatment, to submit to random drug testing and attend parenting skills training through Mercer Street Friends. A subsequent progress report noted that out of a fifteen-session program, she had attended only three of the last eleven sessions.

In April 2005, S.H. began another substance abuse program at Princeton House. In less than two months, she produced six positive urine tests, and her treatment team recommended a more intense level of treatment for her. In June, Princeton House again suspended her.

DYFS located two residential treatment programs for S.H., but the first was eliminated because of its cost. She was accepted into the second, and a DYFS worker accompanied her to the facility. She was almost immediately removed from the program due to her behavior. In addition, the agency that had been transporting her to her supervised visits with D refused to continue to do so because of her behavior. In a subsequent visit she threatened to punch the worker supervising the visit and refused to surrender D at the end of the visit; eventually an officer had to be summoned, and DYFS then arranged to have the next several visits attended by an officer.

In October 2005, the abuse and neglect litigation was terminated, and DYFS filed a complaint and order to show cause seeking to be appointed D's guardian. Shortly after this complaint was filed, S.H. entered another residential treatment program. She was rejected after three days; she had threatened another patient and did not comply with the rules. When she threatened suicide, she was transferred to a hospital for evaluation.

When she was released, her supervised visits resumed. In February 2006, during one such visit, police had to intervene between S.H. and the supervising staff when she began screaming and threatening them. In addition, she persisted in telling D during these visits that he would be coming home, even though she was repeatedly instructed not to tell him that.

We do not find it necessary to recite within this opinion a complete chronology of each of these incidents. It is sufficient, in our judgment, to note that the trial court's finding that both D and G have suffered harm from their relationship with S.H. finds ample support in the record.

When DYFS initially took custody of D, he was placed at Angels' Wings at St. Francis Hospital. Shortly after, he was placed with a paternal aunt and uncle, T.M. and N.M. Initially, S.H. had visitation with D at their home. That, however, had to be changed because of S.H.'s behavior. D remained with T.M. and N.M. for nearly two years, when they said they had ruled out adoption and kinship legal guardianship. D then went to live with his paternal grandmother, who eventually said that she was unable to care for D into the future. D spent approximately three years living with his grandmother. She testified about D's behavior problems.

[H]e can be very aggressive when he's told to do things, he can be argumentative, very stubborn, and if he doesn't get his way he can throw tantrums to the degree where he may throw things at you or knock over things and scream and spit and bite and fall out. All of those things he's done.

She said there were times when they were out shopping that she had summoned the police to assist her in gaining control of D.

On February 15, 2006, a consent order was entered which dismissed the guardianship complaint and reinstated the abuse and neglect proceeding. S.H. was directed to attend various forms of counseling, including anger management, individual therapy through Penndel Mental Health Program, parenting classes, and weekly random drug screening.

Problems persisted with S.H.'s behavior during her visits with D. The record contains a memo from August 2006 that details these persistent problems.

[S.H.] fails to attend any individual sessions and is very disruptive in group. [She] fails to take responsibility for her actions, uses extremely foul language, and refuses to listen to reason on how to better interact with others, especially her child. She has often responded to group members and staff ": [sic] Don't tell me how to parent my kid." During visits she is also inappropriate. [S.H.] has visits 2 times a week every week. At one visit [she] had [D] pinned up against the wall pushing him into time out. Staff had to intervene and suggested for [S.H.] to take a time out for herself. Her response was "next time my kid hits me I will hit him back."

By September 2006, S.H. was homeless and six months pregnant with G. The DYFS case worker attempted to find a placement for her but was unsuccessful. One program refused to re-admit S.H. because of her previous behavior.

G was born on December 12, 2006; when the DYFS caseworker arrived at the hospital, S.H. began screaming at her. The worker explained that she was there not to take the infant but to learn what arrangements S.H. had made for herself and the baby when she was discharged from the hospital. S.H. told the worker she was involved with a program known as Home Front, which was attempting to place her. S.H. and G were discharged from the hospital on December 15; the case worker followed up with Home Front and was told that it could no longer work with S.H. because of her behavior.

On December 16, a social worker from Children's Home Society of New Jersey, Intensive Services Program, which had been involved with S.H.'s supervised visits with D, notified DYFS that it could not handle S.H.'s extensive mental health needs. The social worker noted that S.H. refused to attend individual sessions and that it would provide supervision for only the next two weeks, while DYFS made alternate arrangements.

On December 18, 2006, the trial court entered an order granting DYFS custody of G, then only one week old. After a short period of time, G was returned to S.H.'s care on condition she enter a program at Home Front's Preservation House, where she could live with G. She was expelled from the program after several weeks when she was discovered smoking marijuana in G's presence. DYFS again took custody of G, who has not since lived with S.H. G has lived with his current foster parents since he was approximately ten months old. They are committed to adopting G.

In April 2007, T.M. and N.M. moved to Georgia. They remained in contact with D, however, and in October 2007, T.M. contacted DYFS and said they had again changed their minds and were interested in adopting D. DYFS began the process to request Georgia to conduct the appropriate background investigation of their suitability as prospective adoptive parents.

Jeffrey B. Allen, Ph.D., conducted a psychological evaluation of S.H. and a bonding evaluation of S.H. and D and G and testified as an expert witness for DYFS. At the time Dr. Allen performed these evaluations, S.H. was incarcerated on a charge of accessory to attempted murder. Dr. Allen noted in his report that S.H.

has a pattern of dysfunctional behaviors that shows up in her personal life, her work life[,] her parenting and her relationships with agencies. All of this strongly interferes with her ability to provide suitable parenting to her children. Also clear from all these evaluations is that her abuse of marijuana and cocaine has been chronic and has continued to hinder her ability to cooperate with agencies, learn to parent, and focus on the task of caring for her children.

Dr. Allen testified that S.H. lacked the ability to parent D or G and would continue to lack that ability in the foreseeable future.

He noted further that he observed no bond between S.H. and G and testified that G would experience no loss as a result of the termination of S.H.'s parental rights. He testified, however, that a clear bond existed between S.H. and D and that D would suffer a definite loss if S.H.'s parental rights were to be terminated.

Dr. Allen also conducted a bonding evaluation of D with T.M. and N.M. He testified that he observed what he characterized as "a relatively secure attachment to both . . . ." He also said that the bond was reciprocal, i.e., the M.'s were bonded to D, as he was to them. He testified that in his opinion, the option that posed the least harm to D was termination of S.H.'s parental rights, with a subsequent adoption by T.M. and N.M. He expressed it in the following way:

I have to conclude that in the long run, although [D] will clearly suffer some harm from having his relationship with his biological mother terminated, in the long run he stands the best chance of growing into a healthy, an emotionally healthy young man if he is given to the [M's] and does not see his biological mother any further.

He noted that that both D and T.M. and N.M. would require counseling in the future to alleviate the harm D would experience. He admitted that his preference would be kinship legal guardianship, which would permit D to retain a relationship with S.H. He recognized, however, that this was no longer a possibility in light of the M's having opted for adoption.

Additionally, Dr. Allen conducted a bonding evaluation between G and his foster parents. He testified that he observed a secure bond between G and his foster parents and that G would suffer harm if that bond were to be severed.

DYFS presented an additional expert witness, Alexander Iofin, M.D., a board-certified psychiatrist who conducted a psychiatric evaluation of S.H. Dr. Iofin met with S.H. on two occasions, and issued two reports, one in January 2005, the other in January 2009. Dr. Iofin said he found her on the first visit to be extremely agitated and having difficulty controlling her anger and on the second, displaying signs of agitation that she controlled with difficulty. His final diagnosis was that S.H. suffered from bipolar disorder and borderline personality disorder. In his opinion, the children would face a significant risk of neglect if they were in S.H.'s care; he said she lacked the ability to provide minimally adequate parental care for her children. He said she would need extended psychiatric care, probably for the rest of her life.

The Law Guardian also presented an expert witness, Francis L. Guenther, Ph.D., who conducted a psychological evaluation of D. Dr. Guenther testified that from his testing, he had a "strong suspicion" that D was mildly depressed, with feelings of anger that he had difficulty at times controlling. Dr. Guenther gave the following testimony:

[T]he context of the questioning made it pretty clear to me that, you know, [D's] a little boy who wants to spend time with both his mother and with his aunt and uncle.

I asked him if he would like to live with . . . his aunt and uncle. He replied that he would, but he would still want to see his mommy.

Then I asked him how he would feel if he lived with his aunt and uncle and would not be able to see his mommy and he quickly replied that he would feel sad.

Finally I asked him if he had to choose between living with his aunt and uncle or live with his mommy who he would want to live with and he replied his [aunt and uncle]. And I asked him why and he stated because he felt safe with them.

And I ended by asking him [if he would] want to live with his aunt and uncle even if he could not see his mom and he replied yes and he didn't hesitate to say that.

Dr. Guenther said that he saw D "as being an emotionally volatile, potentially troubled child [who] . . . showed many of the symptoms associated with an attention deficit disorder" who should be seen by a child psychiatrist and a pediatric neurologist.

S.H. testified at the trial. She said she was receiving mental health assistance through a program known as Greater Trenton Behavioral Health and was living with a girlfriend who had two children of her own. She admitted the apartment did not provide sufficient accommodation for herself and her two children. She was not participating in any drug treatment programs because she did not think the program to which DYFS had referred her on her release from jail was appropriate for her needs. She admitted she was still actively using marijuana. She had recently enrolled in beauty school. She estimated she would require an additional six months to one year for her to be in a position to be able to take over the care of D and G. Although S.H. did not present any expert testimony to counter the testimony offered by DYFS and the Law Guardian, she did present a copy of an intake sheet recently completed at Catholic Charities. Portions of the information she provided to complete that intake sheet did not comport with other information in the record.

In summation, S.H.'s attorney noted the progress that she had made and urged the trial court to give her a period of approximately six months to demonstrate that she had overcome her past difficulties and could parent the boys. The Law Guardian urged termination of S.H.'s parental rights with respect to G on the basis that the evidence demonstrated that no bond existed between the two. But with respect to D, the Law Guardian urged the trial court to work toward reunification. She pointed to the progress S.H. had made, the clear bond which existed between D and his mother and the fear that the M's would be unable to handle D's explosive outbursts and would in the future, as they had in the past, say they were unable to care for him. The attorney representing DYFS stressed the need for permanency for both children, pointing out that D had been in placement for most of his life. The trial court later gave an extensive oral opinion, setting forth its reasons for terminating S.H.'s parental rights with respect to both boys.

S.H. has appealed from that judgment and argues that DYFS failed to establish the necessary elements by the required clear and convincing evidence. On appeal, the Law Guardian maintains the same position as at trial, that is, that S.H.'s parental rights with respect to G should be terminated but that the judgment with respect to D should be reversed. DYFS urges us to affirm with respect to both boys.

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). "Termination of parental rights severs all ties and contacts between a parent and a child." Id. at 92. 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). This right 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 irredeemably 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 is not 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., Jr., 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, an assessment that 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 foster family than with his or her natural parent(s) 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, with four statutory criteria met. N.J.S.A. 30:4C-15.1. The Division must prove 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).]

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.

The most valuable resource a parent can offer a child is "the attention and concern of a caring family." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). A biological parent's withdrawal of "solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Ibid. (citing K.H.O., supra, 161 N.J. at 352-354). This is more than "inadequate parenting" but, rather, refers to a parent's inability to provide a minimum level of parenting. D.M.H., supra, 161 N.J. at 379. A parent's delay in establishing a safe, permanent, and stable home, causing a child to suffer psychological damage, may be sufficient to warrant termination of a parent's rights. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div. 1996).

"[H]arms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm

. . . .'" Id. at 592 (quoting In re Guardianship of J.C., 129 N.J. 1, 18 (1992)). The facts presented in this matter bear no resemblance to those presented in N.J. Div. of Youth & Family Servs. v. D.M., ___ N.J. Super. ___ (App. Div. 2010) (holding that parental rights may not be terminated on the basis of the bond between the child and the foster parent absent fault on the part of the biological parent).

Clearly, both D and G have been harmed by their relationship with S.H. Her inability to come to grips with her substance abuse problems and mental health issues have deprived the boys of the nurture and care they were entitled to expect to receive from her. The proof with respect to the first prong was overwhelming.

We reach the same conclusion with the respect to the second prong. During the pertinent time period S.H. was unable to eliminate the harm which faced her children, both through her aggressive and explosive conduct and her continued drug use. In the face of repeated admonitions and warnings, her inappropriate behavior continued unabated.

Similarly, DYFS made extensive efforts to provide assistance to her, as required by the third prong. When S.H.'s behavior led to her expulsion from a program, DYFS would attempt to find a replacement and in some cases, seek her reinstatement. That she did not successfully complete the treatments to which she was referred was not the result of lack of effort on the part of DYFS.

We turn, then, to the fourth prong, whether termination would do more harm than good. With respect to G, again the proof is overwhelming. G has spent almost his entire life separated from S.H. He does not recognize her as his mother, and he does not look to her for psychological reinforcement and protection. He is bonded with his foster parents, who wish to adopt him. Dr. Allen was clear that G would suffer severe harm if his relationship with his foster parents were to be severed.

An entirely different situation is presented with respect to D, who has a relationship with his mother and loves his mother, just as she loves him. The testimony at trial was that harm to D could not be avoided: if S.H.'s parental rights were to be terminated, he would suffer a deep loss; if he remained in his then-current situation of uncertainty, he would continue to suffer; if he joined T.M. and N.M. in Georgia and that placement failed, he would suffer further loss.

There had been testimony to the effect that kinship legal guardianship offered the best prospects to D, but that was not a viable alternative in light of the M's expressed desire to adopt D and their concern that if they entered a kinship legal guardianship, S.H. would continually interject herself, to D's detriment.

The trial court weighed these alternatives and was persuaded by the M's testimony that they were committed to adopting D. It thus entered a judgment terminating S.H.'s parental rights, freeing him for adoption. That is a judgment which we, as a reviewing court, are loath to reject.

However, as a result of the briefs filed by the parties on appeal, we were alerted to a subsequent development which appeared to cast doubt on the viability of that proposed adoption, specifically, that the M's had requested that D be removed because of behavioral concerns.

A general principle of appellate review is that an appellate court considers only the state of the record that was before the trial court which led to the entry of the judgment on appeal. M.M., supra, 189 N.J. at 278-79; R. 2:5-4. We were nonetheless convinced that our fundamental obligation to the parties did not permit us to ignore this statement. We therefore temporarily remanded the matter to the trial court, with directions that it promptly conduct a hearing to determine what had occurred and to report to this court the nature of the incident and whether the trial court had learned anything that would cause it to reconsider its earlier decision that S.H.'s parental rights with respect to D should be terminated.

That remand hearing has been conducted, and the trial court has filed its report with us. It is apparent from that report that the M's were frustrated by problems they experienced in coordinating the transfer of D's medical care and records to Georgia. The trial court has reported to us that D is now doing extremely well, that his behavior has improved dramatically, and that the M's remain committed to adopting him. The trial court concluded that nothing that occurred during the remand proceedings had any impact on its decision that D's best interests called for the termination of S.H.'s parental rights and his adoption by the M's.

 
Based upon our review of this entire record, as it has been supplemented through the remand proceedings, we are satisfied that the judgment terminating S.H.'s parental rights with respect to D and G should be affirmed.

Affirmed.

S.H. was present when her brother shot an off-duty sheriff's officer; she subsequently entered a negotiated plea to a reduced charge, conditioned upon her giving truthful testimony at her brother's trial.

(continued)

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A-5904-08T3

RECORD IMPOUNDED

June 25, 2010