NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1766-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.R.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF B.J.B., a minor.

__________________________________

May 16, 2011

 

Submitted April 11, 2011 Decided

 

Before Judges Lisa, Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-44-08.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Sarah L. Monaghan, Designated Counsel, on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (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 minor, B.J.B. (Hector Ruiz, Designated Counsel, on the brief).

PER CURIAM

Defendant,1 B.R., appeals from an October 30, 2009 judgment of guardianship, terminating her parental rights to her biological son, B.J.B.,2 born July 22, 2000. Brian was removed from his mother three times: between September 2000 and January 2001; between July 2004 and October 2005; and lastly in April 2007.

On appeal, defendant argues that the Division failed to prove the second, third, and fourth prongs of N.J.S.A. 30:4C-15.1a, pertaining to: the parent's unwillingness or inability to protect the child, N.J.S.A. 30:4C-15.1a(2); reasonable efforts by the Division of Youth and Family Services (the Division or DYFS) to provide corrective services, N.J.S.A. 30:4C-15.1a(3); and the balance of benefit and harm from termination of parental rights, N.J.S.A. 30:4C-15.1a(4). We affirm substantially for the reasons that Judge Mary K. White expressed in her written and oral decisions.

 

 

I.

By an order entered April 30, 2007, the court affirmed Brian's emergency removal from the home and awarded the Division custody after he and his mother were assaulted by her live-in boyfriend, Sheldon Jones, on April 26, 2007.

The court ultimately entered a fact-finding order October 1, 2007, determining that defendant abused or neglected Brian in that she was intoxicated while caring for him, failed to obtain medical assistance for his injuries, and was evasive or uncooperative in providing information regarding the injuries. The same day, the court ordered that Brian remain under the Division's custody, care and supervision.

On April 22, 2008, the court entered a permanency order. The court found that it was not safe, and would not be safe in the foreseeable future, to return Brian to his mother because she "failed to complete services to address substance and mental health issues and continues a relationship with [Jones], who is violent and has failed to complete services." The court found that termination of parental rights followed by adoption was the appropriate plan, as the parents had failed to complete services and Brian had been in placement for twelve months.

On June 16, 2008, the Division filed its complaint for guardianship. In February 2009, the court scheduled trial to begin May 26, 2009, and ordered a mediation, which was unsuccessful. On April 3, 2009, defendant moved to amend the permanency plan to make reunification the goal, and to dismiss the guardianship complaint. Defendant argued that her successful completion of substance abuse treatment and receipt of domestic violence counseling warranted that relief. The court disagreed and denied the motion on May 26, 2009, concluding that modifying the permanency plan as requested two years after removal would violate federal and state statutory mandates to achieve permanency. The court denied defendant's request for dismissal, inasmuch as there existed genuine issues of material fact regarding whether termination of parental rights was in Brian's best interest.

Trial was conducted over six days between May and September 2009. The Division called James L. Loving, a clinical and forensic psychologist, as an expert witness. He testified about his psychological evaluation of defendant, and the results of his bonding evaluation of defendant and Brian's then-current foster parents. Various Division employees testified regarding defendant, Brian, the foster home, and Brian's prospects for adoption. Defendant did not testify, nor did she call any expert or other witnesses. The Law Guardian also did not call any witnesses and ultimately supported termination of parental rights.

The court entered judgment October 30, 2009, and issued an oral opinion on November 17, 2009, as well as an undated written decision. The court found that the Division had satisfied the four-element test for termination of parental rights by clear and convincing evidence. We will review the basis of the court's decision at greater length in the context of our discussion of the four elements.

Defendant filed her notice of appeal on December 16, 2009. The Division and the Law Guardian ask us to affirm the trial court's decision.

II.

In an action to terminate parental rights, the Division has the burden to establish by clear and convincing evidence four elements:

(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) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

 

[N.J.S.A. 30:4C-15.1a.]

 

These four, often overlapping elements, "provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). We recognize that a parent's right to raise his or her child is constitutionally protected. Id. at 346. However, that right may be terminated upon a showing by clear and convincing evidence that the child is at risk of serious and lasting future harm under the four-prong statutory test. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our scope of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We give deference to the trial court's factual findings based on the trial judge's familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). We do not disturb the trial court's findings unless they are so clearly mistaken or unsupported as to deny justice. N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 104. Rather, we affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. Ibid.

III.

Defendant does not challenge on appeal the court's finding that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). However, as the four statutory factors interrelate, we will briefly review the substantial evidence in the record supporting the court's finding that the Division satisfied the statute's first prong. We will then turn to consider the remaining three prongs that are the subject of defendant's appeal.

A.

The evidence at trial demonstrated the endangerment of Brian's "safety, health or development." His mother suffered from significant long-term substance abuse problems, and was diagnosed at various times to suffer from numerous psychiatric conditions including depression, adjustment disorder, anxiety, bipolar disorder, and borderline personality disorder. Her romantic relationship with Jones, which began in 2001, was marked by assaults upon her and her son. For a year after the April 2007 removal, defendant was largely non-compliant with offered services, continued to abuse substances, and was inconsistent in visitation with her son.

Starting in April 2008, defendant did avail herself of treatment for her alcohol abuse, and ultimately completed a course of domestic violence counseling. April 2008 coincided with two events: the filing of the permanency order, and yet another domestic violence attack on defendant. Thereafter and through trial, defendant consistently tested negative for substance abuse. But, beginning in late 2008, she began regularly visiting Jones in prison, often on a weekly basis.

The April 2007 removal was Brian's third. Defendant was intoxicated when she gave birth to Brian, and Brian tested positive for alcohol. Thereafter, the Division implemented a safety plan that provided for Brian and defendant to live with Brian's maternal grandmother. However, Brian was removed in September 2000 after he was found in the sole care of defendant, who was too intoxicated to handle feeding him and reportedly was striking him on the head with a baby bottle. Defendant was later hospitalized after she threatened suicide.

Brian was ultimately returned to his mother in January 2001. The family received services from the Division in late 2002 and early 2003, after it received a referral for alcohol-related parenting neglect, which was not substantiated.

By early 2004, defendant was living with Jones. DYFS received referrals reporting that Brian was present during domestic violence incidents. Services were provided, although defendant denied being assaulted. However, after a July 4, 2004 incident, defendant confirmed multiple acts of domestic violence, including one in which Jones pushed her down stairs, causing defendant to suffer a broken arm and leg. Brian reported to the Division after the July 4, 2004 incident that he saw Jones assault his mother and threaten to kill her with a knife. Division workers observed that Brian was covered with insect bites, his clothes were dirty, and the home was trash-strewn. He was removed from his mother for the second time.

After defendant failed to cooperate with services or even regularly appear at scheduled visits with Brian, visitation was suspended from November 2004 until February 2005. Defendant did begin attending counseling and substance abuse treatment in May 2005. She was diagnosed as suffering from bipolar disorder as well as alcohol, cannabis and cocaine abuse. Following completion of treatment, Brian was returned to his mother in October 2005, after a placement of fifteen months. Jones was not then living with defendant.

Between October 2005 and April 2007, the Division received reports alleging domestic violence incidents and suspicious injuries to Brian. Although abuse or neglect was not substantiated, a services case was opened in March 2006 and closed in October 2006.

Then, on April 26, 2007, the domestic violence incident occurred that led to Brian's third removal from his mother's custody. Jones assaulted both Brian and defendant. Brian was assaulted with a belt numerous times, and had multiple belt marks all over his body, including his arms, legs, and abdomen. His mother sustained severe swelling on her face and lower left jaw, abrasions on the back of her head, loose teeth, and cut upper and lower lips. Defendant had instructed Brian to lie about how he was injured. She also declined to seek domestic violence restraints against Jones, who was incarcerated and ultimately sentenced to a custodial prison term.

In July 2007, defendant was hospitalized following a suicide attempt and possible auditory hallucinations. A psychological evaluation resulted in a diagnosis of alcohol dependence, depression, adjustment disorder with anxiety and borderline personality disorder. The evaluator recommended medication, substance abuse treatment, individual therapy, and domestic violence counseling. By January 2008, defendant was discharged from the substance abuse treatment program after poor attendance and cocaine use. After numerous missed visits with Brian, visits were suspended again in February 2008. By April 2008, defendant had resumed her relationship with Jones, who was arrested and ultimately incarcerated for another assault of defendant.

After Brian's removal in April 2007, he was also psychiatrically hospitalized in August 2007 after expressing suicidal ideation. After relatively short-term foster-home placements, he was placed in a Youth Consultation Service treatment home in December 2007 and remained there through the trial in 2009. Brian had suffered from behavioral problems, including tantrums, outbursts, self-injuring behaviors, hyperactivity and impulsivity, and was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He was enrolled in special education programs, and received medication for ADHD. With the efforts of his foster parents, his behavior had improved significantly. However, the family ultimately determined that it was not willing to adopt Brian, nor was the family interested in a kinship legal guardianship.

These facts, based on credible evidence in the record, amply support the court's finding, by clear and convincing evidence, that Brian's health, safety and development had been endangered.

B.

Defendant argues that the Division failed to prove the second statutory element:

DYFS Failed to Prove The Second Prong Because [Defendant] Clearly Rectified the Reasons for Removal and Because [Brian] Will Not Suffer Severe and Enduring Harm if Separated from His Foster Parents.

 

1. [Defendant] Eliminated the Reasons for removal.

 

2. Separating [Brian] from his current foster parents will not cause harm.

 

We are satisfied that there was sufficient evidence in the record to support the trial court's finding that the second element was met. The Division was required to prove that defendant was "unwilling or unable to eliminate the harm facing the child" or was "unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1a(2). Evidence of harm from removing the child from his foster parents is probative, but not essential. Ibid.

The second prong is aimed at determining whether the parent has "cured or 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." In re Guardianship of K.H.O., supra, 161 N.J. at 348. The court is not required to wait "until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999).

As reflected above, in our analysis of the first statutory element, Brian was harmed not simply as a result of defendant's substance abuse, but also as a result of her continuing relationship with an abusive boyfriend who engaged in repetitive and severe assaults against her and her son. The emotional and physical harm to Brian was patent. Although defendant had maintained sobriety for over a year preceding trial, she presented no evidence that she had severed her relationship with Jones. Rather, even after the April 2007 assaults, she resumed the relationship, and was assaulted again in 2008. Jones was incarcerated. Starting in December 2008, defendant commenced frequent, sometimes weekly visitation with Jones.

The court also credited the undisputed expert testimony of Dr. Loving, who noted in his psychological evaluation that defendant was prone to relapse into violent relationships and substance abuse. She reported to Dr. Loving that all of the romantic relationships in her life involved physical domestic abuse.

Brian was defendant's third child. She had her first child at age fourteen. The Division was first involved with defendant in 1984. She surrendered parental rights to her second child. She lost but regained custody of her oldest child. There was evidence in the record that she drank alcoholic beverages with her older son when he was seventeen.

Her alcohol abuse began in her pre-teens. She also abused marijuana in her teens and twenties, and cocaine in her twenties and thirties. She had received several courses of inpatient and outpatient substance abuse treatment between the 1980s and the time of the evaluation.

She reported a long, complex history of mental health symptoms including depression with suicide attempts, anxiety, anger, and substance abuse. She was hospitalized twice related to suicidal behavior or ideation. Defendant said she was a victim of physical and sexual abuse as a child. Also, Dr. Loving found, based on a review of various test results and his own evaluations, that her intelligence was in the borderline range.

Dr. Loving determined that defendant struggled with "an incredibly complex combination of difficulties." He identified "mild intellectual limitations, history of severe substance abuse, trauma, depression, and underlying personality disorder." As a result, he concluded that defendant posed "a high risk in several areas, so that her prognosis for maintaining long term abstinence and behavioral stability is poor." Consequently, he found that defendant was not a "safe candidate for reunification now or in the foreseeable future" despite her sobriety.

Dr. Loving's opinion and defendant's continuing relationship provided sufficient support in the record for the court's conclusion that defendant was unwilling or unable to eliminate the harm facing the child.

C.

Defendant argues that the Division failed to prove the third statutory element:

DYFS Failed to Prove The Third Prong Because It Did Not Investigate the Possibility of Long-Term Foster Care and Because it Failed to Provide [Defendant] With Certain Essential Services.

 

1. DYFS failed to provide certain essential services.

 

2. The Court Did Not Evaluate Alternatives to Termination.

 

We are unpersuaded and will not disturb the trial court's finding that the Division met the third statutory element.

The third element has two parts. First, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1a(3). Second, the court must have "considered alternatives to termination of parental rights." Ibid.

With respect to the first part, "reasonable efforts" consist of attempts to assist a parent in remedying the circumstances and conditions that led to the child's placement. N.J.S.A. 30:4C-15.1c. These include, but are not limited to: developing a plan for services; providing services to further family reunification; informing the parent at appropriate intervals of the child's progress, development and health; and facilitating appropriate visitation. Ibid. The statute requires that the Division's efforts be reasonable; not that they be successful. In re Guardianship of DMH, supra, 161 N.J. at 393. What is reasonable must be determined on a case-by-case basis. Id. at 390.

Defendant argues that the Division did not offer her referrals for treatment for her depression as recommended in a September 2007 evaluation by Genevieve Chaney, a licensed psychologist. Moreover, she argues that she was not offered training in parenting skills focused on a child with ADHD. She also asserts that the Division delayed in securing community-based visitation.

However, as the court noted, during the first year of placement, defendant failed to avail herself of basic services to address her substance abuse and domestic violence issues. The court noted that she participated in individual counseling but then stopped attending. Moreover, the Division had made numerous efforts to offer mental health services to defendant in the past, but she had attended intermittently. Nor do we conclude that the Division failed to make reasonable efforts to provide services because it did not offer specific training in parenting skills for ADHD children, when defendant did not consistently participate in visitation until well over a year after Brian's placement.

With respect to the Division's alleged failure to secure community-based visitation, defendant overlooks the fact that the delay resulted in significant part from her failure to maintain visitation in the summer of 2008. In June 2008, the court ordered the Division to pursue the community-based option if defendant consistently attended her sessions with Brian. Then, either because she simply did not appear, or failed to confirm her attendance in advance as required, four out of five weekly visits did not occur. Consequently, no action was taken at that time to pursue community-based visitation. Instead, in August 2008, the court ordered that visitation be suspended entirely if defendant missed two consecutive sessions. In October 2008, after defendant resumed regular attendance, the court ordered community visitation. However, the program had waiting lists and the visitation did not commence until early 2009. In sum, the delay cannot be attributed to a failure by the Division to make reasonable efforts.

With respect to the second part of the third prong, the court did consider alternatives to termination of parental rights. The court actively explored whether the foster parents who had custody of Brian beginning in December 2007 were interested in a plan for kinship legal guardianship, after it became clear that they were unwilling to adopt. A meeting with the foster parents and the Law Guardian occurred in the midst of the trial, but it was ultimately determined that the foster parents were unwilling to accept that path.

Dr. Loving expressed concern about the impact on Brian if he did not achieve permanency with his then-current foster parents. He nonetheless adhered to the view that reunification with Brian's mother was not a safe plan in either the short-term or long-term. Ultimately, he did not support long-term foster care that would be coupled with visitation, because it would not provide Brian with certainty or permanency. "[T]he better long term plan would be for him to have a home that he experiences as permanent, which I'm describing as him moving and being in an adoptive home." The court credited Dr. Loving's unrebutted testimony.

D.

Lastly, defendant argues that the Division failed to prove the fourth statutory element, because terminating defendant's parental rights will do more harm than good. See N.J.S.A. 30:4C-15.1a(4). Defendant argues:

The State Failed To Prove The Fourth Prong because Terminating [Defendant's] Parental Rights Will Do More Harm than Good.

 

1. [Brian] desperately wants to be with his mother.

 

2. The holdings in DYFS v. E.P.3 and DYFS v. J.L.4 make it clear that a parent-child relationship that continues to provide emotional sustenance to the child should not be severed based on the unlikely promise of a permanent adoptive home.

 

We disagree. The trial court's careful and sensitive balance of the benefits and harms of termination of parental rights was adequately supported by the evidence. The fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." In re Guardianship of K.H.O., supra, 161 N.J. at 355. It is, concededly, a "painfully difficult" decision that is vested in the trial judge who is most familiar with the case. Ibid. (quoting In re Guardianship of J.C., 129 N.J. 1, 25 (1992)).

The child's preferences are not controlling. The trial court acknowledged Brian's interest in reunification. The court also found that he enjoyed an affectionate relationship with his mother and enjoyed a bond with her. By the time of the court's decision, Brian had been enjoying his visits with his mother. By contrast, as recently as August 2008, it was reported that he was resistant to visitation, perhaps because of his mother's missed appointments. Moreover, in his bonding evaluation conducted in late November 2008, Dr. Loving found that defendant was unresponsive to Brian when he tried to play with her, and she appeared bored and ready to leave before the session was near its end. The court cited reports of community-based visitation, which also characterized defendant's time together with Brian as "somewhat parallel and detached."

The court distinguished the parent-child relationship and adoption prospects in New Jersey Division of Youth & Family Services v. E.P., supra, from those evident in this case. Andrea, the child in E.P., was a thirteen-year-old girl who had a "certain and intense bond to her mother," and a "slender prospect of adoption," because of her age and her unabated behavioral problems including multiple threats or attempts to kill herself. N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 110. Although her mother struggled with drug addiction, marked by multiple relapses and related problems of homelessness and unemployment, she remained bonded with the child. Ibid.

By contrast, Brian was just over nine years old at the time of the trial court's decision. Although he expressed a strong desire to live with his mother, the trial court found, based on the credible evidence, that his bond was not as "certain and intense" as Andrea's bond with her mother. As noted above, visitation was inconsistent until the summer of 2008, and interactions between mother and child were strained. The trial court also perceptively observed that there was no evidence in E.P. that the mother had allowed her child to be physically harmed while in her care; the same could not be said of defendant in this case.

Although Brian had coped with behavioral problems, his were not as significant as Andrea's in E.P. The court credited the testimony of a Division adoption specialist who described "child specific recruitment" and the "select home process." The witness expressed the opinion that Brian's prospects for adoption were excellent. She was able to identify matches with families that expressed an interest in adopting a child with Brian's background and needs. However, the effort to match Brian in such a home could not proceed until parental rights were terminated. Consequently, the court found, based on substantial credible evidence in the record, that termination of parental rights would not do more harm than good.

After the court announced its oral decision, counsel for the Division clarified that after the close of testimony in the trial, Brian had moved from what had been his foster home since December 2007, where the foster parents were unwilling to adopt. He moved to another home, which was considered a pre-adoptive home, although it was not one identified through the select home adoption process. The court learned that Brian had already been there for over two months.

IV.

In sum, there is adequate support in the record for the trial court's finding that the Division established all four factors by clear and convincing evidence. We therefore affirm the trial court's judgment terminating defendant's parental rights.

A

ffirmed.

1 As the defendant father has not appealed, we use "defendant" to refer solely to the mother.

2 For the reader's convenience, we will refer to the child as Brian. We also use fictitious names for other persons mentioned in the opinion.

3 196 N.J. 88 (2008).

4 State v. J.L., No. A-5503-08 (App. Div. May 12, 2010). Because this case is unpublished, we shall not address it. R. 1:36-3.