DIVISION OF YOUTH AND FAMILY SERVICES v. S.D.M and T.D IN THE MATTER OF THE GUARDIANSHIP OF S.S.M., a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0266-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.D.M.,

Defendant-Appellant,

and

T.D.,

Defendant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.S.M., a minor.

_________________________________

November 4, 2011

 

Submitted September 21, 2011 - Decided

 

Before Judges Graves, Harris and Koblitz.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-223-09.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the briefs).

 

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.S.M. (Lisa M. Black, Designated Counsel, on the brief).

PER CURIAM

Defendant S.D.M. appeals from a June 8, 2010, Family Part judgment of guardianship granting the request of the Division of Youth and Family Services (DYFS or the Division) to terminate her parental rights to the youngest of her four children, S.S.M., (fictitiously, Samuel), born on April 9, 2008.1 S.D.M. has been involved with the Division since at least 2001. Throughout the years, she has struggled with mental illness, homelessness and substance abuse. As a result, none of her four children are currently under her care. Her two oldest children, one of whom was the subject of a kinship legal guardianship, are now emancipated. S.D.M.'s parental rights to her third child were terminated on November 8, 2006. Samuel never lived with S.D.M. He remained hospitalized for more than three months due to his premature birth and continues to have special needs. We conclude the proofs presented by the Division amply support the judge's conclusion that termination of S.D.M.'s parental rights is in Samuel's best interests. We therefore affirm.

I

During S.D.M.'s pregnancy with Samuel, she tested positive for amphetamines and cocaine on multiple occasions. At Samuel's birth, she tested positive for amphetamines and opiates. S.D.M. acknowledged using heroin three days before the birth, but explained, "I tested positive for crystal meth at [Samuel's] birth, but I never used it. The doctor sa[id] it may have been mixed in with the heroin."

Despite in utero exposure to drugs, Samuel tested negative for illegal substances at birth. He was born prematurely at approximately twenty-eight weeks of gestational age and weighed only two pounds and six ounces. Samuel remained hospitalized after his birth due to severe malnutrition, and he also developed sepsis, meningitis and respiratory issues.

Based on S.D.M.'s history with the Division, her name had been placed on the "At-Risk List with instructions to alert DYFS when [she] delivered." The day after Samuel was born, a Division worker visited S.D.M. at the hospital. S.D.M. informed the worker that she had been using heroin for nineteen to twenty years; was diagnosed as bi-polar and schizophrenic; and had been living at the House of Hope, a homeless shelter in Newark, for approximately one year. S.D.M. signed a case plan that required her to attend family team meetings, as well as substance abuse and psychological evaluations.

Nearly two weeks later, on April 22, 2008, the Division obtained custody of Samuel pursuant to an order to show cause (OTSC). The removal was based on S.D.M.'s extensive substance abuse history and homelessness.

After more than three months in the hospital, Samuel was discharged on July 24, 2008. Because the Division classified him as "medically fragile,"2 he was placed with a Special Home Service Provider (SHSP).

That same month, S.D.M. tested positive for cocaine and heroin. In October 2008, S.D.M. enrolled in the Women In Strength Empowered program at Integrity House. She was scheduled to attend classes five days a week in the areas of parenting, relapse prevention, life skills, domestic violence, health education, anger management, co-occurring disorders, as well as drug and alcohol addiction. The program also provided weekly individual counseling sessions. Despite being given a bus pass by the Division, S.D.M. never returned to Integrity House after her intake appointment and was discharged on November 5, 2008. S.D.M. also missed three scheduled substance abuse assessments and four psychological evaluations.

In November 2008, Samuel was determined to be eligible for Early Intervention Services (EIS) based on at least a 25% delay in the developmental areas of communications and motor skills. His movements were deemed very slow; he had weakness throughout his body; and he used his right hand "in a tight, fisted manner."3 EIS services commenced in March 2009, providing Samuel with occupational and physical therapy.

Samuel remained in the care of the SHSP until December 2008. During that period, S.D.M. was allowed one supervised visit per week at Babyland Family Services, Inc., with the Division providing her transportation to and from these visits. Carolyn Cammock, S.D.M.'s Division caseworker since before Samuel's birth, acknowledged that S.D.M. visited consistently at that time.

In early December 2008, Samuel was transferred from the SHSP home to Hudson Cradle Infant Home (Hudson Cradle), with an admitting diagnosis of failure to thrive.4 While Samuel was at Hudson Cradle, S.D.M. was offered three one-hour visits per week, with the Division providing both bus passes and bus tickets. S.D.M. visited him only two times a month from January through March 2009, and three times in April 2009. She did not visit her son again until September 3, 2009. Hudson Cradle staff indicated that "[p]er mother, the reason why she was not visiting with [Samuel] [was] because she was sick and hospitalize[d]."

On March 6, 2009, based on the prior termination of S.D.M.'s parental rights to her third child, the court granted the Division's motion for an exception to the requirement of reasonable efforts to reunify S.D.M. with Samuel. See N.J.S.A. 30:4C-11.3(c) (stating that reasonable efforts need not be provided when "[t]he rights of the parent to another of the parent's children have been involuntarily terminated"). The court also entered a permanency order approving the Division's plan to terminate parental rights and pursue adoption. The Division filed an OTSC and complaint for guardianship on June 12, 2009, and an amended complaint on December 7, 2009.

Despite the "no reasonable efforts" order, the Division continued to provide S.D.M. with services. S.D.M. was referred to a psychiatric evaluation with Alexander Iofin, M.D., on July 7, 2009. S.D.M. informed Dr. Iofin that heroin was "her drug of choice" and she used it "less than one week before the current evaluation." According to Dr. Iofin's report, S.D.M. also had a history of mental illness, "in the moderate to severe realm," which resulted in two hospitalizations. She was hospitalized most recently in 2006 because of a suicide attempt. Dr. Iofin found that S.D.M. "presented with [a] confused thinking pattern . . . [with] poorly developed cognitive mastery and coping skills."

S.D.M. had a poor relationship with her own mother, who beat her with an extension cord. S.D.M. dated the start of her drug use to age eight, when she began smoking marijuana. Dr. Iofin concluded that S.D.M. was "clearly a MICA [mentally ill chemical abuser] patient. . . . The prognosis for her to be considered as a minimally adequate parent for [Samuel] is extremely poor now and in the foreseeable future, which constitutes a period of up to [twelve] months in duration."

Peter DeNigris, Psy.D., conducted a psychological evaluation of S.D.M., as well as a bonding evaluation between her and Samuel in early September 2009. Dr. DeNigris noted that S.D.M. was seeking someone who could adopt [Samuel]. . . . She indicated that she does not plan to pursue reunification." Dr. DeNigris agreed with S.D.M.'s plan. Moreover, the results of the bonding evaluation indicated that S.D.M. "lack[ed] knowledge about child development" and a "healthy bond [was] not present between [mother and son]."

The Division referred S.D.M. to a Certified Alcohol and Drug Counselor (CADC) on September 23, 2009 for an evaluation. S.D.M. recounted to the CADC her extensive substance abuse history, including the consumption of up to twenty-five bags of heroin per day.

On November 30, 2009, through her own efforts, S.D.M. gained admission to St. Michael's Behavioral Health Services (St. Michael's), a hospital-run drug treatment program intended to address her addiction and other parenting issues. She tested positive for opiates on December 8 and 15, 2009.

After her visit on September 3, 2009, S.D.M. did not visit her son again during his remaining three months at Hudson Cradle. Samuel's medical condition greatly improved as a result of the occupational and physical therapy he received. Upon his discharge in late December 2009, Samuel was placed in the care of his godmother, who was also one of his social workers at Hudson Cradle.

On January 4, 2010, S.D.M. informed the court that "she [was] currently unable to care for [her son]" and was "unsure what her plan for [him] will be." S.D.M. also tested positive for marijuana, morphine and methamphetamine. The court noted that S.D.M. had "not resolved her substance abuse and mental health problems and does not have stable housing."

On February 1, 2010, approximately five weeks after placement, Samuel was removed from his godmother's home at her request. After staying in two different short-term placements, he was placed with his current caretaker, a licensed foster care provider, on February 9, 2010. This caretaker later informed the Division of his commitment to adopt Samuel.

S.D.M. informed the Division that she was "unable to care for [Samuel] but does not want to have her rights terminated as she is unsure as to whether or not she will see [him] after he is adopted."5

In January 2010, S.D.M. reported that she was having housing issues and would return to the program when those issues were resolved. In response, St. Michael's assisted S.D.M. with establishing structured housing by referring her to Real House in Montclair, a shelter and halfway house for women recovering from substance abuse. After living for approximately three years at the House of Hope homeless shelter in Newark, S.D.M. moved to Real House's Montclair location on March 1 and subsequently transferred to its second location in Bloomfield.

S.D.M. also resumed services with St. Michael's. Progress reports in May 2010 indicated that she was attending the program as scheduled; all urine screens from the beginning of the year were negative; she stabilized in her treatment and was working on developing resources to help her abstain from the use of illicit substances; and her mental state was stable.

At this time, S.D.M. also regularly attended scheduled visits with Samuel. Cammock supervised the visits, and on March 5, 2010, she noted that S.D.M. had a "new upbeat attitude" and that Samuel appeared sad when the visit ended.

Later that month, Dr. DeNigris conducted another bonding evaluation between S.D.M. and her son, as well as an updated psychological evaluation. In his report, Dr. DeNigris reaffirmed his prior opinion that S.D.M. was unfit to parent Samuel. His report observed that S.D.M.'s poor judgment had continued since the date of the previous evaluation. S.D.M. admitted to using heroin in November 2009 and tested positive for opiates on December 8, 2009, and on December 15, 2009. On January 4, 2010, she reportedly tested positive for marijuana, morphine, and methamphetamine. The report noted that, in reference to the January 2010 test results, S.D.M. stated, "I bought pills off the street for pain. I don't know what they were, but they were narcotics. . . ." The report concluded that S.D.M.'s ongoing substance abuse, her prolonged lack of employment or any source of income, and her continued residential instability reflected that she had not achieved the stability necessary to appropriately and safely care for Samuel.

Dr. DeNigris referred to his previous report, in which he noted S.D.M.'s lack of knowledge about child development and common developmental milestones of children, as well as her minimal understanding of Samuel's special needs and the specific services that he is receiving. Dr. DeNigris stressed his prior opinion that without an awareness of these factors, S.D.M. might maintain developmentally inappropriate expectations for Samuel, causing the child's needs to be neglected if reunification were to occur.

In commenting on the interactions between S.D.M. and Samuel, the report stated that "the criteria commonly found in mutually-gratifying parent/child interactions were not pronounced." For example, although S.D.M. regularly provided verbal praise and gestures of affection to the child, such gestures were rarely, if ever initiated by Samuel. Additionally, the report emphasized that Samuel exhibited few exploratory behaviors while in the presence of S.D.M., and that he appeared more exploratory after S.D.M. had left the room.

The report concurred with Dr. Iofin's finding that it was unlikely that S.D.M. would be fit to parent Samuel in the foreseeable future. It noted that S.D.M. had not demonstrated sufficient progress to warrant a recommendation of reunification, nor had she consistently complied with services to help her to achieve that end. Casting further doubt on her commitment to achieve reunification was her failure to visit Samuel from September 2009 until January 2010. The report concluded by underscoring both Samuel's need for permanency, stability, structure and predictability, and S.D.M.'s apparent inability or unwillingness to provide any of these conditions. Dr. DeNigris found that termination of S.D.M.'s parental rights would not do more harm than good, and that Samuel would be at risk for harm if unified with her. He ultimately recommended that S.D.M.'s parental rights be terminated.

Dr. DeNigris did not perform a bonding evaluation of Samuel with his foster father because, at the time of trial, Samuel had been in this placement for only three and one-half months. Dr. DeNigris indicated that a strong bond would not form in such a short time.

Additionally, Dr. Iofin performed a psychiatric reevaluation of S.D.M. on April 7, 2010; this examination was originally scheduled to occur on February 17, 2010, but S.D.M. failed to attend. Like Dr. DeNigris, Dr. Iofin was concerned by S.D.M.'s "active use of illicit substances as recently as in December of 2009." He further found that S.D.M. suffered from significant psychiatric problems, which "create[d] [an] inability for [her] to be considered as a minimally adequate parent for [Samuel] now or in the future."

A two-day trial occurred on June 1 and 2, 2010. Cammock, Dr. DeNigris, Dr. Iofin, and Samuel's caretaker testified for the Division. S.D.M. did not testify or call any witnesses.

In his findings, the trial judge reviewed in detail S.D.M.'s extensive history with the Division in relation to her three older children, finding that her drug abuse persisted for many years, even though she was offered services by the Division. Although he found S.D.M.'s apparent abstention from non-prescribed drugs to be "a strong start" after many years of addiction, he found that the Division proved its case by clear and convincing evidence.

On appeal S.D.M. raises the following issues:

POINT I

 

THE COURT BELOW ERRED IN FINDING THAT S.[D.]M. WAS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME AND THAT DELAY OF PLACEMENT WOULD ADD TO THE HARM TO [Samuel].

 

A. THE DEFENDANT HAS EXHIBITED A WILLINGNESS AND ABILITY TO ELIMINATE THE HARM WHICH LED TO THE REMOVAL OF [Samuel].

 

B. THE DIVISION FAILED TO SHOW THAT A DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.

 

POINT II

 

THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD.

 

POINT III

 

THE COURT BELOW ERRED IN FINDING THAT THE DIVISION PROVED BY CLEAR AND CONVINCING EVIDENCE THAT IT COMPLIED WITH THE THIRD PRONG OF THE TEST IN ORDER TO JUSTIFY TERMINATION OF S.[D.]M.'S PARENTAL RIGHTS.

II

Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, our scope of review of a trial judge's findings of fact is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We ordinarily defer to the trial court's factual findings "because it has the opportunity to make first-hand credibility determinations about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citations omitted). Indeed, a trial court's findings are "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).

"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). However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. J.N.H., supra, 172 N.J. at 471. When a child s physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). In some cases, severance of the parent-child relationship may be required to protect the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child s best interests will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603 (quoting In re Guardianship of Cope, 106 N.J. Super. 336, 340-41 (App. Div. 1969).

New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves 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).]

 

These four statutory criteria are "not discrete and separate; they 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.

As to the first prong, S.D.M. does not dispute that the Division proved by clear and convincing evidence that Samuel's well-being was endangered by her extensive drug use during pregnancy. We therefore will not address this prong. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 (App. Div. 2005) (holding that an issue not briefed is deemed abandoned).

As to the second prong, S.D.M. maintains that the efforts she made while the litigation was pending, especially during the five months prior to trial, evidence a willingness and ability to eliminate the harm to Samuel. She attended evaluations; she attended drug treatment at St. Michael's and tested negative for drugs;6 she obtained housing at Real House, the women's shelter; she stabilized her mental illness and she visited Samuel regularly. Indeed, the trial judge credited S.D.M. with "a good start" towards rehabilitation. When balanced against her extensive history of drug relapse, homelessness, joblessness, and psychiatric disabilities, however, the judge correctly found that the Division had demonstrated by clear and convincing evidence that S.D.M. was unwilling or unable to eliminate the harm to Samuel.

S.D.M.'s lack of knowledge about child development and her failure to provide a safe and secure home for her other children loom particularly large in light of Samuel's special needs. The child has global developmental delays and has been diagnosed with reactive airway disease. He must attend regular appointments with a variety of medical specialists, including a pulmonologist, cardiologist, orthopedist, allergist, ophthalmologist and audiologist. He also requires early intervention services, including occupational therapy, developmental intervention and speech therapy. Samuel's foster father has been able to ensure that the child receives the required treatment.

S.D.M. also argues that the Division failed to demonstrate that a delay of permanent placement would cause or add to the harm to Samuel. Children are entitled to a permanent, safe and secure home. We acknowledge "the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child." N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). As public policy increasingly focuses on a child's need for permanency, the emphasis has "shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Id. at 111 (citations omitted). That is because "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

The question then is "whether the parent can become fit in time to meet the needs of the child[]." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004) (indicating that even if a parent is trying to change, a child cannot wait indefinitely.) Samuel has never lived with his mother. He now resides in a licensed foster home that is meeting his needs and where the foster father has testified to a long-term commitment to adopt Samuel. Any further delay of permanent placement under these circumstances is an unnecessary extension of Samuel's time in limbo.

S.D.M. also maintains that the Division failed to prove that it made reasonable efforts to provide her with services. The Division was relieved of this obligation by order of March 6, 2009, due to the involuntary termination of S.D.M.'s parental rights to Samuel's older sibling. Nonetheless, the Division offered evaluations, visitation, investigation of alternate caretakers requested by S.D.M., and treatment options during the course of this litigation. In fact, the Division's efforts to assist S.D.M. were commended by the judge as well as defense counsel.

Finally, S.D.M. maintains that the Division was unable to prove that termination would not do more harm than good in part because no bonding evaluation was conducted of Samuel and his foster parent. "In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. We stated in A.R. that we could "envision very few scenarios in which comparative evaluations would not be required" to help DYFS sustain its burden of proof under both prongs two and four. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (2009). Unlike the mother in A.R., however, S.D.M. was never Samuel's caretaker. The Division presented unrebutted expert testimony from Dr. DeNigris based on two separate bonding evaluations that Samuel was not bonded to S.D.M. Thus, termination of the child's relationship with S.D.M. would not cause Samuel more harm than good.

Because at the time of trial the current caretaker had not been in that position long enough to establish a bond with Samuel, a comparative bonding evaluation was not required. The court should not wait until a bond is formed with a caretaker to terminate the parental rights of an unfit parent who has not herself formed a bond with the child.

Affirmed.

1 The child's putative father, T.D., did not attend a scheduled paternity test nor did he participate in the guardianship proceedings. Default was entered against him, terminating his parental rights. He did not seek to set aside the default or to participate in this appeal.

2 According to a Division caseworker, "a child is classified as medically fragile if [he or she is] in need of specialized care," such as "one-on-one services." As a result, caregivers for these children are usually CPR certified and "able to attend to all of the child's needs, including the administration of medication."

3 The Division was informed that a tight fist was "attributed to drug withdrawal."

4 The intention was for Samuel to stay at Hudson Cradle during the month of December while his SHSP moved. However, the SHSP had difficulty finding new housing, and Samuel remained at Hudson Cradle for one year, until December 2009.

5 New Jersey does not permit open adoption. See In re Adoption of a Child by W.P., 163 N.J. 158, 171-73 (2000). Open adoption "reflects an agreement between the adoptive parents and one or more members of the child's biological family permitting visitation after the child has been formally adopted." Id. at 172-73.

6 As reflected in the order of January 4, 2010, S.D.M. tested positive for marijuana, morphine and methamphetamine on that date. S.D.M. also told Dr. DeNigris that she last used drugs in January 2010.