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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4940-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.S. and L.B.

Minors.

__________________________________

July 13, 2011

Submitted May 25, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-35-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors A.S. and L.B. (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant-mother M.S. appeals from the final judgment of the Chancery Division, Family Part, terminating her parental rights to a son, now nine years old, and a daughter, now five years old. We affirm.1

Defendant has been a habitual abuser of illegal drugs. She has admitted using marijuana, cocaine, ecstasy, benzodiazepines, heroin, and crack cocaine. She has made no effort to address her drug abuse despite being the single mother of five children. The harm she has caused by neglecting her children's needs has been physically manifested in at least two of her children and noted by school personnel and others.

In November 2007, the Division of Youth and Family Services (DYFS) removed four children from defendant's apartment, the two who are the subject of this appeal and two teenage sons who were placed in the custody of their father in New York. Defendant also has a twenty-year-old son who lived with his girlfriend and two-year-old child in a separately-locked room attached to defendant's apartment.

DYFS had contacts with the family since 1993, receiving a total of twelve reports in the ensuing years, some of which were substantiated and some not. In May 2007, DYFS received a referral from the father of the then five-year-old boy complaining that he looked undernourished and had marks on his body. Abuse and neglect were not substantiated at that time.

In September 2007, an anonymous caller notified DYFS that defendant had gone out at night to buy marijuana and had left the children sleeping and alone in her apartment. She was arrested that night and did not come home until late the next morning. The two older boys went to school in the morning not even realizing that their mother was not home. The two younger children, then five years old and nineteen months old, were left alone. The DYFS investigation that followed found defendant continuing her drug use and failing to provide adequate care for the children.

DYFS attempted to enroll defendant in drug treatment programs. She rejected all treatment, claiming that in-patient rehabilitation programs of several months duration were too long, and she might lose her federally-subsidized full rent assistance if she stayed away from her apartment. She had no similar excuse for failing to attend the out-patient programs that DYFS made available for her; she simply did not go. She also missed many appointments DYFS scheduled for drug abuse evaluation. When detoxification was recommended, she said she was not ready for it.

Defendant also gave excuses for failing to enroll the five-year-old boy in kindergarten; failing to take him to a dentist for several years to the point where his teeth were in such poor condition that he could not chew food; failing to attend to the boy's delayed development in speech and ambulation, subsequently diagnosed as a neurological impairment; repeatedly missing appointments with an optometrist for one of the teenage boys, who was unable to read the blackboard at school because his eyesight was poor and his glasses had been broken for several months; and allowing the teenage boy to miss many days of school.

Defendant missed most of the visitations DYFS arranged for her with the two younger children. In March 2008, the court suspended the visitations because she repeatedly tested positive for drug use, showed other signs of being under the influence of drugs, and refused to cooperate for drug treatment. Defendant has not seen the children since February 15, 2008. The children are in the care of foster parents and have improved noticeably since they were removed from defendant's home. On one occasion soon after his removal, the boy cried when he thought he was being returned to defendant's apartment.

Defendant repeatedly failed to attend court proceedings adjudicating her parental rights. The court patiently accommodated her disregard, vacating her default and adjourning proceedings to allow her to be heard. The termination of parental rights trial began on July 9, 2009, and then continued sporadically over eight court dates because defendant missed court dates. The trial was finally completed on May 5, 2010. Defendant's testimony was anticipated a day earlier, but again, she did not come to court. Instead, she spoke to her attorney on the telephone and requested to testify by telephone from her friend's apartment. The court denied that request but agreed to re-open the case to take her testimony the next day in the courtroom.

Defendant attended the next day and testified tearfully that she loved her children and wanted to regain custody; she said her depression had become more severe because the children had been taken from her; she denied the special needs of her sons; she admitted she was still using cocaine and heroin in April 2010; she gave no reasonable explanation for failing to address her drug addiction; and she said she had made mistakes in caring for her children, such as failing to enroll her child in school. After her testimony, defendant went home rather than return to the courtroom after the lunch recess to hear the court's decision. Her lawyer reported to the court that her ankles were swollen and the morning session had tired her.

On appeal, defendant argues that the judgment should be reversed because DYFS failed to present sufficient proofs for termination of her parental rights and because her procedural rights were not protected by the court. These arguments are entirely without merit. The proofs were clear and convincing that defendant neglected her children and is unfit to be a parent, and the younger children now have an opportunity for health and nurture in the care of their foster parents, who want to adopt them.

Under N.J.S.A. 30:4C-15.1a, parental rights may be terminated when:

(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 for 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 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.

The four prongs of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). DYFS bears the burden of proving all four prongs by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007).

"Termination of parental rights severs all ties and contacts between a parent and a child. The object is to allow the child the opportunity for a permanent placement with a new family, where the child can grow and thrive with the end goal of adoption." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 92 (2008). The family court's inquiry is extremely fact-sensitive, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007), and the scope of appellate review is limited, G.L., supra, 191 N.J. at 605. "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid.

In this case, defendant does not challenge the family court's finding that the first prong of N.J.S.A. 30:4C-15.1a was proven, namely, that the children's safety, health, and development has been and will continue to be endangered by the parental relationship. She argues that DYFS failed to prove the other prongs of the statute, especially because it did not present live expert testimony. One reason for the absence of expert testimony, however, was that defendant did not attend professional evaluations as they were scheduled. DYFS was unable to conduct a bonding evaluation because defendant would not cooperate. The early psychological evaluation of defendant that was performed was presented to the court in a written report.

Furthermore, there was no need for expert testimony to prove by clear and convincing evidence the second prong of the statute that defendant is unwilling or unable to eliminate the harm facing the children. Much evidence in the record showed that defendant would not attend drug rehabilitation programs and that she continued to be a regular abuser of illegal drugs. Defendant tested positive for illegal drug use on each of the six dates she was tested from September 2007 through April 2010. DYFS caseworkers observed that she often appeared to be under the influence of drugs. Beginning in December 2007 and continuing through March 2009, DYFS referred her more than a dozen times for drug abuse assessment and treatment, but she consistently failed to attend and was discharged from the programs for failure to comply. She refused referrals to attend outpatient treatment in September 2007 and inpatient treatment in January 2008. She admitted in her trial testimony that she continued to use heroin and cocaine. The factual evidence at trial clearly and convincingly proved she was an unfit parent who was unable or unwilling to address her drug abuse.

With the second prong of the statute proven in that manner, DYFS was not required also to prove through expert testimony that delay in securing permanency for the children added to the harm, as in In re Guardianship of J.C., 129 N.J. 1, 19 (1992). In J.C., the Court required expert testimony "[i]n cases in which DYFS seeks termination of parental rights, not on grounds of current unfitness but because of potential harm to the child based on separation from a foster parent with whom the child has bonded." Id. at 18. See also N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437-40 (App. Div. 2009) (discussion of comparative evaluations under prong two). This was not such a case.

As to the third prong of the statute, defendant argues that DYFS failed to provide the "unique" services she needed to help correct her problems. We have already described the many efforts of DYFS to provide drug abuse rehabilitation for defendant. She seeks something more, a "different approach" that she does not identify and is seemingly beyond human powers.

Defendant contends that DYFS failed to make diligent effort to place the children with a relative, as required by N.J.S.A. 30:4C-12.1. She argues her twenty-year-old son should have been considered for relative placement of the children. The son was unemployed and financially unstable, lived in a room with his girlfriend and two-year-old child, had shown no signs of being able to care for his siblings, and in fact, was unaware when they were left home alone in September 2007, and was hostile toward DYFS workers. He was not a realistic alternative for placement of the children.

Also, DYFS considered and interviewed the woman married to the father of one of the children as a possible alternative placement for the children. That woman indicated a willingness to take custody of the girl but not the boy. Furthermore, she intended to resume living with the girl's father upon his release from prison, but he was also a drug user and was expected to be deported after serving his prison sentence. In addition, the woman had a criminal record of her own. She was not a viable alternative for placement of the children, who are currently thriving together in a single foster home.

DYFS also contacted other relatives, who declined to be considered for placement of the children. Defendant's argument that her friend "Patti" should have been considered is frivolous and need not be addressed. R. 2:11-3(e)(1)(E). We conclude, as did the family court, that DYFS made reasonable efforts to provide services to defendant and sought alternatives to termination of her parental rights.

As to the fourth prong of the statute, "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. In establishing this prong, DYFS should normally provide testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. J.C., supra, 129 N.J. at 19. The question "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.

Generally, "the fact that the child has a strong relationship with the foster parents is not by itself enough to terminate parental rights." A.R., supra, 405 N.J. Super. at 439. That relationship "must be viewed not in isolation but in a broader context that includes as well the quality of the child's relationship with his or her natural parents." J.C., supra, 129 N.J. at 18. Comparative professional evaluations are normally required. A.R., supra, 405 N.J. Super. at 440.

As previously stated, DYFS attempted several times to schedule a bonding evaluation of defendant and the children, but defendant refused to attend. Eventually, the children had not seen defendant for more than two years, thus, diminishing the importance of any bonding evaluation with defendant. Although it may have been preferable to follow through with a bonding evaluation of the foster parents with the children, the family court did not abuse its discretion in proceeding without such an evaluation. Relying on the testimony of a DYFS caseworker, the family court found:

[S]ince the children have been with the foster parents, they've developed a relationship that does not need to be evaluated by an expert. That the children appear to have a close bonding with the foster parents. That they appear to have a close bonding with the other children in the household. That the children are doing well, they're happy and the foster parents have indicated that they want to adopt these children. And, factually, the foster parents have in fact been addressing the needs of the children in each and every respect.

We agree with the family court that expert testimony was not required in this case. The evidence of defendant's unfitness and the resultant harm to the children was particularly strong, and in comparison, the factual evidence that the children were much safer and thriving in their foster home was also clear. "When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108. A child's need for permanency and stability is an important consideration. M.M., supra, 189 N.J. at 281.

There was clear and convincing factual evidence in the record to conclude that the children would not suffer more harm than good from termination of defendant's parental rights.

Finally, since defendant was inattentive to the court proceedings, and the court nevertheless accommodated her attorneys' requests for adjournments, she will not be heard to complain of violation of her procedural rights. Additionally, she was responsible for failing to communicate with her attorneys. If her disregard of the proceedings caused her attorneys not to be better prepared on all the trial dates, she has only herself to blame. We reject without further discussion in a written opinion her arguments that she received ineffective assistance from her appointed attorneys. R. 2:11-3(e)(1)(E).

In E.P., the Supreme Court said, "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." 196 N.J. at 104. "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." Ibid. (quoting G.L., supra, 191 N.J. at 605). In this case, DYFS presented ample evidence at trial to support termination of defendant's parental rights under N.J.S.A. 30:4C-15.1a.

A

1 The two fathers of the children no longer contest termination of their parental rights and are not involved in this appeal.