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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5179-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF S.R., Jr., a minor.

_________________________________

June 27, 2011

Submitted May 3, 2011 - Remanded May 10, 2011.

Resubmitted June 9, 2011 - Decided

Before Judges Wefing, Baxter and Koblitz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Essex County,

Docket No. FG-07-194-09.

Yvonne Smith Segars, Public Defender, attorney

for appellant S.R. (Anna Patras, Designated

Counsel, of counsel and on the briefs).

Paula T. Dow, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Mary Harpster,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor S.R., Jr.

(David R. Giles, Designated Counsel, on

the brief).

PER CURIAM

S.R. appeals from a trial court judgment terminating her parental rights with respect to Sam,1 a son who is now nearly four years of age. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Sam was born in August 2007. In December 2007, the New Jersey Division of Youth and Family Services (DYFS) removed Sam from his mother's care and custody on an emergency basis when she brought him to University Hospital in Newark suffering from first- and second-degree burns from his lower abdomen to his knees. S.R. said that she and Sam had been visiting with her mother in Haverstraw, New York. She said she left Sam briefly in her mother's care while she went to the store and that her mother gave him a bath in the sink while she was gone. While she was doing so, the water suddenly turned scalding hot, which she attributed to someone else in the building flushing a toilet. Upon her return from the store, S.R. did not seek immediate medical care for Sam but waited until her mother's husband returned, and he then drove them to Newark, at which point she brought the baby to the hospital. There was nearly an eight-hour delay in Sam being seen by a doctor. The extent of his burns, and the delay in seeking treatment, led the emergency room doctor to contact DYFS. Sam was transferred from University Hospital to St. Barnabas Hospital in Livingston for treatment in its Burn Unit, where he was treated for ten days. Upon his discharge from the hospital, Sam went to his paternal grandmother's house, with the condition that his mother and father only have supervised visitation.

Sam's stay with his paternal grandmother was short lived; he was removed in January 2008 when DYFS learned that the condition for supervised visitation was not being complied with. It developed that Sam's father was also residing there, and DYFS learned of at least one incident in which Sam's father physically abused S.R. Eventually, S.R. obtained a final restraining order against him.2

DYFS then placed Sam with the biological father of S.R's older daughter. Sam remained there for approximately three months, until the father asked in March 2008 that Sam be placed elsewhere. Sam was then placed with a foster family, with whom he has resided ever since. His foster parents are committed to adopting Sam.

After Sam's removal from S.R.'s care, DYFS offered her a variety of services, including parenting classes, substance abuse evaluation, psychological evaluation, psychiatric evaluation and referral for housing assistance. S.R. was terminated from several of the programs to which she was referred for her non-attendance. She was unable to overcome her substance abuse problems, and she did not maintain stable housing.

DYFS arranged to have psychological evaluations of S.R. performed by Daniel E. Williams, Ph.D., and Andrew P. Brown, III, Ph.D. Dr. Williams conducted his evaluation in February 2008, Dr. Brown in January and September 2009. Dr. Brown testified at trial, and Dr. Williams's report was received into evidence. Dr. Williams noted in that report that he had found "no obvious psychological characteristics that might preclude [S.R.] parenting her children, effectively."

At trial, DYFS presented Dr. Brown as its expert witness. Dr. Brown conducted a psychological evaluation of S.R. in January 2009. In his written report, Dr. Brown noted that S.R. exhibited "poor parental and personal judgment." He expressed the view that "[h]er parenting style should be considered inflexible or rigid and this renders her with a shallow repertoire of methods for establishing limits and control." He also noted that S.R. had no "expressed plan for parenting" and that she was dependent upon her relatives to supply her with housing and funds. He recommended she participate in drug treatment and parenting education and that attempts at reunification were dependent upon her compliance.

Dr. Brown conducted a second evaluation in September 2009. He noted in his written report that although she told him that she had completed drug treatment in May 2009, the records supplied to him revealed that she had been terminated from the program in July 2009 for her non-compliance. He found the same conditions as had existed at the time of his earlier evaluation and reported that in his opinion, her prognosis for parenting was poor.

In his trial testimony, Dr. Brown testified that S.R. told him that she had stopped using marijuana in February 2009, saying that she did so for herself and for her children. He agreed that it would be a matter of significant concern to learn that she had given birth to another child in October 2009 and that the baby's meconium had tested positive for marijuana. Dr. Brown also testified that her inability to maintain stable housing raised concerns because of a child's need to develop a sense of stability. In his testimony, Dr. Brown reviewed the various tests he administered to S.R. and the results; he said he concluded from those tests and his clinical interview that S.R. had "poor insights" and an inflexible parenting style and "very little to support a plan for parenting."

Dr. Brown also conducted a bonding evaluation between S.R. and Sam. He observed a positive relationship and noted that Sam was not afraid of her or angry with her and that he exhibited no anxiety when Dr. Brown separated the two. He found a familiarity between the two but expressed the opinion that Sam was not bonded to her.

Dr. Brown conducted a bonding evaluation of Sam with his foster parents as well. He observed that Sam was very comfortable with them and that their interaction was not coerced or forced in any way. When Dr. Brown asked Sam's foster mother to leave the room, Sam stopped smiling and looked very concerned. When, after a brief interval, Dr. Brown opened the door, Sam ran out to greet his foster mother. Dr. Brown conducted a separate bonding evaluation with Sam's foster father and testified that Sam would not permit his foster father to leave the room but ran after him. Dr. Brown testified that Sam's foster parents were his psychological parents and that he was bonded to them. He said Sam would experience harm if he were separated from them. He expressed this view in this manner:

When you remove a child from caretakers whom he has bonded to, then what you are doing is if you think about the development of -- of personality, and I -- and I used -- I associated it with the underpinnings or the infrastructure. If you think of the infrastructure of a building for example, and you remove that infrastructure, what happens? The building will crumble, it will fall.

 

And much the same way when a child is bonded to the caregiver, and that caregiver is suddenly removed, then you are exposing that child to what we call trauma. And trauma is a state which we now know cannot be repaired in children this young. This is something that he will carry with him for the rest of his life. And it will impact on his -- his overall personality development.

 

He noted that Sam was at a critical development period, a "time period when the personality structure is being laid down, when it's being built." Dr. Brown also opined that S.R. lacked the psychological ability and insight to mitigate the harm of separation trauma and that Sam would experience no harm if S.R.'s parental rights would be terminated.

The Law Guardian also presented an expert witness, Peter N. DeNigris, Psy.D., who conducted a psychological evaluation of S.R. and a bonding evaluation of Sam with his foster parents and of Sam and S.R. His results mirrored those of Dr. Brown. Dr. DeNigris testified that in his opinion, based upon her history of poor judgment, her substance abuse history, and her failure to plan for Sam, S.R. was not able to parent him. He said that he did not observe a healthy bond between S.R. and Sam and that in his opinion Sam was forming a bond with his foster parents. According to Dr. DeNigris, Sam would experience no harm if S.R.'s parental rights were terminated but would experience both short-term and long-term harm if he were removed from his foster parents. He said that in his opinion the most appropriate plan for Sam was termination of S.R.'s parental rights and his subsequent adoption by his foster parents.

Although S.R. did not present any countervailing expert testimony, she herself did testify. She recounted the incident with Sam being scalded and attributed her delay in seeking treatment for him to her reliance upon her mother's advice. She admitted that she had engaged in heavy use of marijuana but said she completed the drug program DYFS had recommended. She said she had completed this program in December 2009 and had not used marijuana since. She also testified that she had completed an individual counseling program and parenting skills program. She admitted that she had given birth to another child in October 2009 whose meconium had tested positive for marijuana, but she attributed that to the lingering effects of prior use. She said she had severed her relationship with Sam's father because he had been physically abusive to her, and she would not return to him. She admitted on cross-examination that at the conclusion of her drug treatment (approximately three months prior to the trial), she had been recommended to go to Narcotics Anonymous but had not done so.

After the conclusion of the trial, the trial judge issued a comprehensive written opinion setting forth his factual findings and legal conclusions to support his determination that S.R.'s parental rights should be terminated. This appeal followed.

On appeal, S.R. raises the following contentions:

The Decision to Terminate S.R.'s Parental Rights was Not Supported by Adequate, Substantial and Credible Evidence.

A. Prong 1: The Division Has Not Shown By Clear And Convincing Evidence That S.R.'s Relationship with Sam Has Caused or Will Cause Enduring Harm.

B. Prong 2: S.R. [E]liminated the [H]arm to Sam.

C. Prong 4: Termination of S.R.'s Parental Rights Will Do More Harm Than Good to Sam.

 

In his written opinion, the trial judge noted that S.R. had harmed Sam in several ways, including her failure to seek prompt medical care for him; by continuing, for a period of time, her relationship with Sam's father; and her admitted heavy use of marijuana. He also noted that she remained unable to present any reasonable plan to provide care for Sam and still appeared unwilling to accept responsibility for her actions and decisions. He found that DYFS had made reasonable efforts to assist her in having Sam returned to her care, but those efforts had been unsuccessful. He also concluded that Sam would experience enduring harm if he were to be separated from his foster family and, in contrast, would suffer little to no harm if S.R.'s parental rights were terminated. He also noted the controlling legal principles that governed his analysis of these factual predicates and found that S.R.'s parental rights should be terminated. Having reviewed this record, we find no flaw in the trial judge's factual findings or legal conclusions. All are amply supported.

While this appeal was pending, S.R.'s third child, who had been born during this litigation, was reunited with her. S.R. argued that this demonstrated her ability to parent Sam and that the judgment entered by the trial court should be reversed.

This subsequent development caused this court to have a concern, and we ordered a temporary remand to the trial judge, with directions that he reconsider whether S.R.'s parental rights with respect to Sam should be terminated. We have since received the results of that reconsideration. We set forth the trial judge's final determination.

While it is true that [S.R.] was reunified with her second [sic] child [T], on October 6, 2010, this subsequent reunification has no affect [sic] on the termination of her parental rights in regards to [Sam]. [S.R.] was unable, or perhaps unwilling, to change her lifestyle or be compliant with Division-offered services and court orders during the entire course of the litigation surrounding [Sam]. Further, the Division still maintains care and supervision over [T], and continues to monitor [S.R.'s] compliance and care of her daughter.

The fact remains that [Sam] has been and continues to be in a loving, stable foster home with the only parents he has ever known. Whatever tenuous relationship existed between [Sam] and [S.R.] in April 2010 has now become attenuated to the point of non-existence. The Division and this court took every reasonable step to reunify [S.R.] with [Sam] to no avail. There was clear and convincing evidence supporting [S.R.'s] termination of parental rights in April 2010, and that evidence remains to this day. Further, it is of some consideration to note that [S.R.] never sought visitation with [Sam] pending her appeal, even after her reunification with [T]. [S.R.'s] actions lead this court to believe that she has essentially written off the child, [Sam].

 

The judgment under review is affirmed essentially for the reasons expressed by Judge Bernstein in his written opinion of April 6, 2010, as supplemented by his letter of June 2, 2011.

Affirmed.

1 The name is fictitious.

2 Sam's father did not participate in the guardianship proceedings, and default was entered against him. He did not seek to set aside the default or to participate in this appeal.