NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES IN THE MATTER OF THE GUARDIANSHIP OF K.H.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5252-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.E.M.,

Defendant-Appellant.

__________________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.H.P., a minor.

___________________________________________

May 2, 2011

Submitted April 11, 2011 Decided

Before Judges A.A. Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-185-09.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor K.H.P. (Todd Wilson, Designated Counsel, of counsel and on the brief).

PER CURIAM

L.M., the birth mother of K.H.P., a boy born in July 2006, appeals from the May 25, 2010 judgment terminating her parental rights to the child. The boy's birth father, K.P., executed a voluntary surrender on the condition that his mother, T.P., be awarded custody. We affirm.

During the first seventeen months of K.H.P.'s life, L.M. lived with K.P. and T.P. In December 2007, L.M. moved into her own residence with K.H.P. During that time, K.H.P. spent four days a week at T.P.'s home.

The Division of Youth and Family Services (DYFS) first became involved with L.M. in March 2008, when L.M. was transported by ambulance to Jersey City Medical Center. She was incoherent, paranoid and delusional. Testing revealed that L.M. was under the influence of ecstasy and alcohol. Nineteen-month-old K.H.P was in her sole custody at the time and traveled in the ambulance with her. The charge nurse at the hospital reported that L.M. "could barely hold [K.H.P.] and he almost fell out of her hands." Police officers at the hospital contacted K.P., T.P. and two of L.M.'s sisters.

T.P. and K.P. arrived at the hospital and requested to take K.H.P. home. The caseworker initially refused this request because L.M.'s sisters had alleged that K.P. beat L.M. in front of T.P. T.P. and K.P. denied the allegations. The caseworker asked the police officers to do background and domestic violence checks on K.P. and T.P. T.P.'s background check was clear. K.P. had several past arrests and had been recently arrested for possession of illicit narcotics, possession of a handgun and receiving stolen property. The caseworker initiated an emergency removal of K.H.P and developed a plan that called for K.P. to move out of T.P.'s home, and K.H.P. to go home with T.P. L.M.'s sisters refused to provide any background information about themselves to the DYFS caseworkers.

DYFS filed an order to show cause. Judge James S. Rothschild granted legal custody of K.H.P. to DYFS and physical custody to T.P. After a fact-finding hearing, Judge Rothschild found by clear and convincing evidence that L.M. and K.P. had placed K.H.P. "in imminent danger of harm." DYFS provided L.M. with services including psychological and psychiatric evaluations, substance abuse treatment, transportation, counseling, parenting skills classes and frequent visitation.

Two months after her initial hospitalization, L.M. was admitted to Newark Beth Israel Medical Center for a substance-induced psychotic disorder. She admitted using ecstasy two days prior to her admission. DYFS then learned that L.M. had not been attending treatment for more than a month. L.M. admitted that she was "afraid to leave her home because 'people may be following her.'"

By the middle of May 2008, L.M. was visiting K.H.P. at T.P.'s home on a regular basis. At the time, she was unemployed and living with her sister. However, by the middle of August 2008, T.P. reported that L.M. was no longer visiting K.H.P. regularly, and had only visited twice over the previous two months. One year later, T.P. requested that a caseworker find alternative location for L.M.'s visitation based on L.M.'s behavior. In response, DYFS set up bi-weekly visitation at its offices.

Barry A. Katz, Ph.D., a clinical psychologist, conducted a psychological evaluation of L.M. in the latter part of June 2008. L.M. denied the allegations made by her sister that K.P. was violent towards her. She did not know what year it was at the time of the evaluation and "was disjointed in her presentation." Dr. Katz noted that L.M. tried to control the information that was in his report, but "she did this so poorly that it was clear she did not have the cognitive rationale or judgment to lie in a convincing fashion much of the time." According to Katz, L.M. "described limited coping ability to deal with children's problems" on the sentence completion task. Dr. Katz concluded that L.M. had mental health issues and recommended a complete psychological evaluation, substance abuse assessment, frequent urine screenings, a parenting class, weekly counseling sessions and a psychological reevaluation in three-to-six months.

In August 2008, L.M. received a substance abuse assessment from Catholic Charities and was referred to substance abuse treatment at Integrity House. She missed her intake appointment. DYFS also referred L.M. to parenting classes at Family Connections. She was dismissed from both the substance abuse and parenting classes for noncompliance. DYFS made a second referral for individual substance abuse treatment and parenting skills training at Reunity House. L.M. attended the first intake appointment and subsequent outpatient appointments on a regular basis. She tested negative for drugs through the end of January of 2009.

Natiliya Osmanova, M.D., conducted a psychiatric evaluation of L.M. in August 2008, and opined that L.M. was "denying and minimizing," gave contradictory statements and was confused. Dr. Osmanova concluded that L.M. was uncooperative and resistant and that "[h]er responses were delayed and inappropriate at times." Dr. Osmanova recommended a follow-up psychiatric examination.

Dr. Katz conducted a follow-up psychological evaluation of L.M. in January 2009, and reported that L.M. was not "honest or forthcoming" during the exam, and "continues to have severe deficits in cognitive processing, resistance to discuss her problems, denial, distortion and likely psychotic processes." According to Dr. Katz, L.M. "continues to engage in bizarre and uncooperative behavior." Dr. Katz concluded that L.M. "displays no change in her behavior from the previous examination." He opined that L.M. "should not be considered as an appropriate placement for a child at this time."

After providing services to facilitate reunification of K.H.P. and L.M. with limited success, DYFS filed a guardianship complaint. DYFS advised Judge John J. Callahan that its plan called for the termination of parental rights of L.M. followed by adoption by T.P., who had expressed her intention to adopt K.H.P.

In October 2009, Andrew P. Brown, III, Ph.D, a licensed psychologist, conducted a neuropsychological evaluation of L.M. According to Dr. Brown, L.M. "presents with neuropsychological indices consistent with the impression of shallow cognitive processing, reasoning, and decision-making abilities." Dr. Brown opined that L.M. "will have difficulty attending to the needs of her child in a thoughtful and timely manner," and that she "is not able to parent her child independent of supervision due to the extent and pervasive nature of neuropsychological deficits." Dr. Brown also concluded that although "participation in parenting skills is not discouraged it is within a reasonable degree of psychological certainty that the magnitude of [L.M.'s] deficits will overwhelm benefits that may be derived from a course in parenting skills." Finally, he determined that L.M.'s "neuropsychological deficits are permanent and will not be lessened or altered with efforts aimed at remediation.

At trial, Dr. Brown reiterated his opinion that L.M. would never be able to parent independently. He concluded, within a reasonable degree of neuropsychological certainty, that her cognitive deficits were permanent, and she could not overcome them with counseling.

Alexander Iofin, M.D., conducted a psychiatric evaluation of L.M. and noted that L.M.'s "thought process was generally logical" and that she had "[n]o thought blocking, thought derailment, [or] pressured speech." However, "rambling or loose association was noted throughout the length of the examination." Dr. Iofin concluded "based on a reasonable degree of psychiatric certainty, that [L.M.] cannot be considered as a minimally adequate parent for her child in question now or in the foreseeable future." At trial, Dr. Iofin testified that although L.M.'s mental functioning is classified as "being mild mentally retarded," he cited "additional significant difficulties for her to be considered as a minimal[ly] adequate parent for [K.H.P.]," and opined that L.M. would have significant difficulty in properly nurturing a child due to her mental problems.

Dr. Katz performed an evaluation of the relationships between L.M. and K.H.P., and between T.P. and K.H.P. Dr. Katz noted in his observation of L.M. and K.H.P., that K.H.P. referred to L.M. as "mommy" and that L.M. was able to provide limited comfort to K.H.P. However, twenty minutes into the evaluation K.H.P. walked away from L.M. and repeatedly stated that he wanted to go home. He remained seated in a chair on the other side of the room looking away from L.M. He later reengaged in conversation with L.M. but did not make eye contact with her. Dr. Katz concluded that although K.H.P. recognized L.M. as a familiar figure, he had an insecure and unstable attachment to her.

Dr. Katz's evaluation of the relationship between K.H.P. and T.P. "revealed a child who has a secure and stable attachment to his current caretakers." K.H.P. "showed an ongoing and consistent desire for contact and approval [from] his grandparents." Dr. Katz concluded that the bonding evaluations revealed that K.H.P. "views his current caretakers as his psychological parents and he is strongly and securely bonded to them" and that it was his "only stable attachment." Finally, Dr. Katz opined that that "termination of [L.M.'s] parental rights would not do more harm than good."

At the request of L.M.'s attorneys, Albert R. Griffith, Ed.D., a licensed psychologist, conducted a psychological evaluation of L.M., and bonding evaluations. The psychological evaluation was conducted in August 2009. Dr. Griffith found that L.M. had "fragile emotional controls" that "could leave her subject to abuse and she would overreact to the child" when he tested her limits. Dr. Griffith indicated that L.M. has "a history of withholding behavior during child visits" and "appears to be unsure of how to express affection for her child." As a result, Dr. Griffith concluded that L.M. "could be neglectful." With regard to parenting, Dr. Griffith concluded that L.M. "is more comfortable with the material aspects of parenting than with the nurturing aspect." Dr. Griffith noted that "there is no sense of providing structure or of providing a set of expectations" and that L.M. "appear[s] to be unprepared for parenting at this time." In a follow-up visit in September 2009, Dr. Griffith indicated that L.M. had made no progress in dealing with her issues.

Dr. Griffith conducted a bonding evaluation between L.M. and K.H.P. K.H.P. was happy to see L.M. and enjoyed some candy that she brought him. K.H.P. did not accept any control or directions from L.M. and "showed a total disrespect for her." Nevertheless, Dr. Griffith noted, "the strength of [K.H.P.'s] interactions with [L.M.] suggests that there is still a good deal of attachment that exists between them." He concluded that K.H.P.'s "behavior appears to be so disruptive, at least with [L.M.], as to suggest that he would suffer significant harm if she were no longer in his life."

Dr. Griffith's evaluation of the relationship between K.H.P. and T.P., revealed that K.H.P. was attached to T.P. and that she was attentive to his needs. Dr. Griffith indicated that T.P. was capable of parenting K.H.P., but although T.P. "is a familiar, caring and protective figure for [K.H.P.,]" she doesn't "appear to be his primary attachment figure." Dr. Griffith concluded that "[i]t cannot be said however, that [K.H.P.] would suffer longstanding and significant harm if he were separated from [T.P.]"

At trial, Dr. Griffith indicated that he could no longer recommend the reunification of L.M. and K.H.P. because Dr. Brown's neuropsychological evaluation of L.M. "cast a serious doubt [on] her ability to absorb therapy." Based on L.M.'s condition at the time of his September 2009 examination, Dr. Griffith opined that removal of K.H.P. from T.P. and reunification with L.M. would result in enduring, serious harm.

Following the trial, Judge Callahan entered judgment in favor of DYFS. He found, by clear and convincing evidence, that K.H.P. should not be placed in L.M.'s care and the termination of her parental rights will not do more harm than good to K.H.P.

On appeal, L.M. contends that there was no substantial credible evidence to support the findings that: (a) L.M. was unable to or unwilling to eliminate the harm facing her child and unwilling or unable to provide a safe and stable home environment were erroneous; (b) DYFS made reasonable efforts at reunification and considered alternatives to termination; and (c) termination of parental rights would not do more harm than good. We reject these contentions.

A termination of parental rights must be supported by clear and convincing evidence of the following factors:

(1) The child's health and development have 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) [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-15.1(a); see also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-10 (1986).]

We defer to a trial judge's factual findings when they are based on credible evidence in the record unless those findings are "so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)) (internal quotation marks omitted).

After careful review, we conclude that the record contains ample clear and convincing evidence to support Judge Callahan's findings. Specifically, L.M. had a significant inability to function as a parent and a longstanding history of drug abuse and mental disturbances. This situation endangered K.H.P.'s health and development. DYFS made several attempts to provide services to L.M. She was not able to benefit from these services. The bonding evaluation showed that termination would not do more harm than good to K.H.P.

We also conclude that Judge Callahan applied the correct legal standards to the facts he found. We discern no sound reason for disturbing the judge's findings and affirm substantially for the reasons set forth in Judge Callahan's comprehensive and insightful May 25, 2010 oral decision.

A