NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.L IN THE MATTER OF THE GUARDIANSHIP OF X.R.C.-L

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6183-08T46183-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.L.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF X.R.C.-L.,

A Minor.

__________________________________________________

 

Submitted June 3, 2010 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-73-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Justin J. Walker, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Veronica A. Beke, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, defendant C.L. argues the trial judge erroneously terminated her parental rights to her daughter, X.R.C.-L. (hereafter Jasmine, a fictitious name). After closely examining the record, we affirm.

Plaintiff Division of Youth and Family Services (the Division) first became involved with defendant in September 2005 when she was seventeen years old. Defendant, at that time, called the Division to report that her mother refused to enroll her in school. The Division substantiated educational neglect in light of the mother's acknowledgement that she was "not willing to put [defendant] in school" because "she [was] tired of [her] and [did] not want to be bothered anymore with her." The mother told the Division she wanted to "wash her hands" of defendant because she "does not listen . . . [and] she goes and comes as she pleases and does whatever she wants to do." The Division also learned at the time that defendant was five months pregnant and had not been receiving pre-natal care.

Because defendant was essentially abandoned by her mother, she had no stable home and had been "bouncing [around] from relative . . . to relative." Concerned these circumstances posed potential harm for defendant's unborn child, the Division contacted defendant's father to see if he would allow defendant to reside with him. The father said he would accept her if she wanted, but he anticipated she would refuse. As predicted, the Division urged defendant to move in with her father, but she resisted. As a result, defendant continued to reside with other relatives.

Jasmine was born on February 5, 2006. Following their release from the hospital, defendant and Jasmine moved in with defendant's aunt in Jersey City. A few months later, defendant left that home in order to reside with a paramour and his family, taking Jasmine with her. However, defendant soon returned Jasmine to her great aunt's home but continued to live with her paramour's family. Defendant left that residence and moved into her paramour's sister's home and later still moved in with her own father. Jasmine continued to reside with her great aunt in Jersey City.

On September 6, 2006, defendant's eighteenth birthday, the trial court awarded the Division custody of Jasmine based on the judge's concerns regarding defendant's inability to provide Jasmine with a stable home. Over the next several months, the Division worked with defendant in an attempt to remedy the problems standing in the way of reunification. Defendant was referred for psychological evaluations, psychotherapy, drug assessments, and parenting classes; she was also provided with opportunities to visit with Jasmine. Although defendant completed one of the parenting programs and was partially compliant with the visitation schedule, she did not partake or engage in a majority of the other services offered by the Division, particularly the substance abuse programs recommended.

As a result, in July 2007, the Division changed its goal from reunification to relative adoption. The child's great aunt expressed an interest in adopting Jasmine and, on July 17, 2007, the trial court entered an order approving the Division's plan. Although the Division continued to make available a variety of services, defendant remained largely non-compliant.

In May and June 2009, Judge Elaine L. Davis presided over a five-day guardianship trial. By this time, Jasmine was well over three years old and had spent most of her life with her great aunt. On June 25, 2009, Judge Davis rendered an oral decision and a judgment terminating defendant's parental rights to Jasmine.

In appealing, defendant argues that the evidence was insufficient to support a finding in favor of the Division, by clear and convincing evidence, on any of the four prongs. We reject her arguments.

Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' 'far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "The preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.

However, the constitutional right to the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, the parent's interest must yield to the State's obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). As a result, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division prove by clear and convincing evidence the following four prongs:

(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) The [D]ivision 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.

See also A.W., supra, 103 N.J. at 604-11. The statute's four prongs are not "discrete and separate; they 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.

Once judgment is entered, our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "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), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998); N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 112 (App. Div.), certif. denied, 180 N.J. 456 (2004).

The first prong calls for an exploration of the "endangerment of the child's health and development resulting from the parental relationship." K.H.O., supra, 161 N.J. at 348. The focus is not necessarily on a "single or isolated" event, but rather on "the effect of harms arising from the parent-child relationship over time." Ibid.

Here, Judge Davis found by clear and convincing evidence that the first three months of Jasmine's life were "spent under very difficult circumstances" because defendant failed to provide her with a stable home. According to Judge Davis, the child "was taken from one place to another and then basically dropped off to someone else to take care of."

Furthermore, although defendant eventually found a suitable apartment prior to the guardianship trial, the judge was rightly troubled by defendant's failure to adequately address her substance abuse problem, finding defendant's marijuana use posed a serious risk to Jasmine because "the taking of drugs is mind altering, the taking of drugs is a crime, the taking of drugs places people in a position of poor judgment."

Defendant described herself as an occasional marijuana user, but her problem appears to be more significant. The record reveals that defendant tested positive at least five times since Jasmine was removed from her care. One of the positive results was obtained only two months before the trial was scheduled to begin and defendant also sabotaged a test attempted during the course of the trial. In addition, defendant has resisted most of the Division's efforts to assist her. Defendant repeatedly missed appointments and never fully addressed her mental health or substance abuse issues.

Indeed, even if it were fair to conclude that defendant was, as she claimed, only an occasional user, the first prong would still have been established by her failure to address -- with her relationship with her daughter in the balance -- this allegedly minor problem. In many ways, that fact reveals an even deeper problem. See e.g., K.H.O., supra, 161 N.J. at 353 (explaining that "indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse" should be considered when evaluating the potential harm to the child).

In concluding that the Division met the first prong with clear and convincing evidence, we do not mean to ignore or discount the efforts and progress defendant did eventually make. The record reveals that defendant found a suitable two-bedroom apartment in Jersey City and secured a steady job as a package handler for UPS, although her hours -- 11:00 p.m. to 4:00 a.m. -- are not exactly conducive to raising a young child. However, the issue is not whether defendant has made progress but whether the judge was justified in finding the timing and sufficiency of those efforts adequate to preclude a finding in the Division's favor. The judge found that defendant's efforts were too little and too late. That determination is fully supported by the record. As noted earlier, our standard of review does not permit the second guessing of a judge's view of the facts and the credibility of the evidence. Having closely examined the evidence, we are entirely satisfied that the judge was justified in concluding that the Division proved the first prong by clear and convincing evidence.

With regard to the second prong, the Division was required to demonstrate that defendant was either unwilling or unable to eliminate the harm to the child. N.J.S.A. 30:4C-15.1(a)(2); K.H.O., supra, 161 N.J. at 347. The "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Id. at 348. The Division can satisfy its burden by showing that "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.

Judge Davis concluded that the Division successfully met this prong by clear and convincing evidence. She was particularly persuaded, as are we, by defendant's inability to effectively resolve her drug problem:

Again, going back to the use of an illegal substance and a continuing use of an illegal substance proves to me without a doubt that [defendant] is unwilling to eliminate the harm. She's had every opportunity to do so. This child has been in placement for three years. She has been given many opportunities to deal with the problem.

Judge Davis was also moved by defendant's "temerity to come to a trial and attend a trial where there were big stakes at hand and during that trial test positive for drugs." In the judge's view, this demonstrated defendant's defiance and suggested her insensitivity to a child's needs. In essence, as already discussed with regard to the first prong, defendant failed to adequately address her drug use in the face of the consequences of that failure and despite all the assistance offered. The judge rightly found from this evidence that defendant was either incapable or simply unwilling to cease her drug use for the sake of her daughter and the parental relationship.

Additionally, psychological evaluations revealed defendant has mental health issues that will continue to prevent her from being able to effectively care for Jasmine. Dr. Peter DeNigris, who evaluated defendant in April 2008 and again shortly before trial, testified that defendant has an inflated sense of self-worth, which makes her unreceptive to criticism and causes her to exalt her own needs above the needs of others. He also testified that defendant has low self-esteem and a tendency to misconstrue details about her life in order to foster a more favorable portrayal. Because of this, Dr. DeNigris opined that defendant would not be a suitable parent for Jasmine.

Dr. Robert Kanan's report of May 2006, which was in evidence, also asserted that defendant suffers from "mild to moderate depression" and shows "evidence of long-standing personality problems." He observed that defendant's "increasingly hopeless feelings spring from a wide and pervasive range of events that include family problems, her own personality problems, an unstable lifestyle, and difficulty functioning adequately in daily life." Based upon these findings, Dr. Kanan concluded that defendant "[i]n her present condition . . . is not capable of providing her child with a permanent, safe, and secure home."

She was also evaluated by Dr. Vivian Shnaidman, who concluded that defendant exhibited "significant mood symptoms" consistent with post-traumatic stress disorder and suffers from "other issues" such as insomnia, anxiety and dysphoria. Although Dr. Schnaidman believed defendant was treatable, she considered it unlikely that defendant would ever actually improve because she had never engaged in any of the programs previously recommended:

Sadly, while I hope that [defendant] will at some point decide to engage in psychiatric treatment including medication and psycho-therapy, to expect a sudden motivation to do so after well over two years of non-compliance would be unrealistic. [Defendant] is not psychotic, she is not out of touch with reality, she is not a serious substance abuser, and she is not mentally retarded. She is capable of understanding that she has been an inadequate mother, and it is clearly in the best interests of [Jasmine] to remain with the foster mother who has loved her and raised her as her own since birth.

Defendant responded to this by likening her circumstances to those considered in N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235 (App. Div. 2005). There, the trial judge terminated the parental rights of both parents because they were living in squalor and failed to comply with the services provided by the Division. Id. at 254-56. In reversing, we focused upon two errors in the trial judge's decision, neither of which occurred here. First, we concluded that the trial judge had mistakenly attributed the father's non-compliance with services to the mother, who had been mostly cooperative throughout. Id. at 260-62. Second, we found the trial judge in F.M. had misconstrued some of the evidence in the record regarding a disease developed by one of the children. Id. at 259-60. The present matter is significantly different because the record is replete with evidence that defendant simply refused to comply with the services recommended by the Division, whereas the mother in F.M. "complied in whole or in part with virtually all of" the services recommended by the Division. Id. at 260-61. We, thus, reject defendant's argument that F.M. precludes termination and conclude that there was an abundance of evidence to support the judge's finding that the second prong was proven by clear and convincing evidence.

We find insufficient merit in defendant's arguments regarding the judge's findings on the third prong to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We lastly turn to the fourth prong, which requires clear and convincing proof that termination of the parent's rights will "not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). In that regard, consideration must be given to "whether a child's interest will best be served by completely terminating the child's relationship with [the natural] parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If "the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents," then the natural parent's rights should be preserved. K.H.O., supra, 161 N.J. at 355.

In concluding that the Division satisfied its burden of proving the fourth prong by clear and convincing evidence, Judge Davis relied on Dr. DeNigris's testimony as to the lack of a bond between defendant and the child and the strength of the bond between the foster mother and the child, stating:

So I do believe also that the fourth prong [has been met] because it is clear from [Dr. DeNigris's] report and I believe clear from all of the reports that the [c]ourt has had at its disposal that this child has no bond with the biological mother, this child would suffer greatly from the loss of her present caretaker and life with her biological mother would be insecure, would no doubt result in a parenting failure, but mor[e] importantly she could be subject to severe harm and danger not only from losing the foster mother at this time but also being subjected to the drug abuse of the biological mother and any or all persons that might be involved with the biological mother who may be providing such narcotics or illegal drugs.

The record fully demonstrates that Jasmine would suffer more harm if separated from her foster mother than if defendant's rights were terminated. Jasmine has been living with her great aunt for almost her entire life and, at the time of trial, she was over three years old. The evidence demonstrates that whenever a caseworker visited the foster mother's home, the child was properly groomed, well-fed and healthy. In addition, the child has developed relationships with the foster mother's other young children, who think of Jasmine "as their sister."

By all accounts, the child is doing well in the care of her great aunt. In contrast, when Jasmine was in her mother's care, she lived in three different locations in a short period of time and, at one point, was essentially abandoned by defendant. Also, evidence regarding the visits between defendant and Jasmine reveal a disconnect between mother and daughter. As the Division caseworker testified, "there is not much interaction" during the visits and often the child just sits on her mother's lap with no reaction toward her. The bonding evaluations conducted by Dr. DeNigris demonstrate that Jasmine has formed a healthy bond with her great aunt whereas she is not at all bonded to defendant. The judge fully explained the evidence provided in this regard and her findings as to the bond between the foster mother and the child, and the absence of a bond between defendant and the child, are deserving of our deference.

 
For these reasons, and substantially for the reasons set forth by Judge Davis in her thorough and thoughtful oral decision, we affirm the judgment under review.

(continued)

(continued)

16

A-6183-08T4

RECORD IMPOUNDED

June 16, 2010