DIVISION OF YOUTH AND FAMILY SERVICES v. R.P IN THE MATTER OF THE GUARDIANSHIP OF C.P.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5253-09T3

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

R.P.,

Defendant-Appellant.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.P., a minor.

______________________________________

April 26, 2011

Submitted March 23, 2011 - Decided

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-11-10.

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

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kimberly Gunning-Marcantonio, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

R.P. (Rose) appeals from an order terminating her parental rights to her son, C.P. (Carlos), born May 25, 2004 to her and to C.S. (Clarence),1 2 and granting guardianship to the Division of Youth and Family Services (Division). We affirm.

Carlos was removed from Rose's custody on May 28, 2008, after police responded to a call from a neighbor who had been contacted by neighborhood children after they heard Rose's daughter, Martha, yelling inside Rose's apartment. The neighbor knocked on Rose's apartment door. Carlos opened the door, at which time the neighbor observed Martha "laying on her back gasping for air" and Rose on top of Martha choking her. The neighbor pulled Rose off of Martha and called police. Rose was arrested, and upon the arrival of Division caseworker, the children were removed. On May 30, 2008, the court placed Carlos under the care and supervision of the Division. He was placed with his maternal great-aunt, Agnes, with whom he continued to reside when the trial commenced on March 31, 2010. Agnes has expressed her desire to adopt Carlos.

In addition to Martha, born October 26, 1995, and Carlos, Rose is also the mother of Melody, born November 5, 1994. Martha and Melody have the same biological father. At the time of trial, both girls were living with their father, who also had legal custody of them. The Division's involvement with Rose dated back to as early as 1995 when she was arrested and charged with fourth-degree child cruelty, to which she pled guilty, and was sentenced to four years probation. The probation included undergoing parenting skills training, receiving psychological counseling and treatment. The Division continued its involvement since that time, receiving upwards of ten allegations of abuse or neglect on Rose's part, of which three were substantiated.

Throughout its involvement with Rose, the Division has offered and provided a myriad of services to her, although most of the documented services in the record appear to have occurred following the May 28, 2008 assault of Martha that led to the emergency removal of the three children from her custody. Approximately one year earlier, on April 23, 2007, following the receipt of an anonymous call from the children's school reporting that the children came to school filthy, a Division caseworker conducted an in-home assessment. The worker substantiated the allegation of environmental neglect and required Rose to accept services on cleanliness from Unlimited Care. The Division also provided bunk beds for the children and assisted Rose in obtaining a psychological evaluation with Leslie A. Trott, Ed.D.

Dr. Trott evaluated Rose on July 12, 2007 and, as a result of the evaluation, recommended that Rose be referred for weekly psychotherapy. Dr. Trott also recommended that the Division "maintain monthly contact with [the] involved schools and make evening visits at [Rose's] home to insure the three children are well cared for."

Following her arrest on May 28, 2008, Rose was arraigned in Superior Court where bail was set. As a condition of bail, the court entered a "no contact" order that prohibited Rose from having any contact with her children, including supervised visitation. Rose remained incarcerated until bail was posted on December 28, 2008. Upon her discharge, she commenced participating in the court-ordered services. Through a program called Options Counseling Center, she underwent domestic violence education, as well as parenting and substance abuse classes between March 2, 2009 and September 29, 2009. She expressed a desire to see her children during this period, but her Division caseworker reminded her that there was a court order in connection with the criminal proceedings prohibiting any such contact. Sonia Oquendo, M.D., performed a psychiatric evaluation of Rose in September 2008, while Rose was incarcerated, and another on March 9, 2009, after Rose had been released from jail for slightly more than two months. In her latter report, Dr. Oquendo issued the following summary:

[Rose] is a [forty-five]-year-old African-American female, who was recently released from jail on charges of assaulting her daughter. She has experienced depression through the years, but she has never had any formal treatment in a hospital or as an outpatient for more than a brief period of time following the diagnosis of postpartum depression. While she denied using any alcohol or substances at this moment, she has a history of abusing alcohol, which has interfered with her judgment in the past. She also seems to be impulsive and has been incarcerated on two occasions for physically abusing her children. At the time of the interview, her mental status was essentially normal. She denied symptoms of depression and there was no evidence that she was psychotic or delusional in any way. She is essentially healthy and family history is significant for depression in both of her birth parents.

. . . .

It is my opinion with a reasonable degree of medical certainty that the symptoms of depression that [Rose] presented at the time of her first evaluation in September of 2008 were directly related to the stressful situation that she was experiencing. She was facing legal charges, which resulted in her incarceration and her family was disrupted by the separation from all of her children. When I saw [Rose], all of her symptoms of depression were in remission and there was no evidence that she was depressed any longer, psychotic, or suicidal. She is[,] in contrast, motivated to improve herself, will be attending parenting classes and is enrolled in a program to pursue a career as a medical assistant.

At this time, it is my opinion that [Rose] does not need treatment with medication[,] and as such, follow-up by a psychiatrist is not recommended. I recommend that [Rose] continue[] to attend school, complete her parenting classes, alternative to domestic violence classes, and any other requirement as specified by DYFS. Once she completes everything as required from her[,] provided that she is free of substances, an attempt should be made for her to have supervised visits with her children. This should be planned in a therapeutic environment under the assistance of a family therapist that will prepare the children and [Rose] to start seeing each other again.

If the interaction between [Rose] and her children is adequate[,] a plan should be created where she would be allowed to spend more time with her children. The ultimate goal should be for the children to remain safe and without risk of getting hurt again, while at the same time reestablishing a relationship with [their] mother as long as it is healthy and not otherwise contraindicated.

The Division received Dr. Oquendo's report and presented it to the court in its April 20, 2009 report.3

Also on March 29, 2009, the Division recommended that Rose's parental rights to Carlos be terminated, followed by adoption. In recommending termination, the Division stated in its report:

[Rose] is a repeat[] offender with a history dating back[] to June 11, 1995. There has been a total of [ten] allegation[s] of abuse and neglect[] with [three] substantiations. This is also [Rose's] second arrest related to child physical abuse (June 1995 and May 2008). [Melody]'s letter to the court depicts her accounts of the level of abuse (see attach[ed]). . . . As recently as March 20, 2009[,] [Carlos] disclosed his desire not to return to [Rose]'s care and how she would pull his finger back until he cried. These children endured years of physical and emotional abuse and will be placed at risk of harm if reunified with [Rose].

On April 2, 2009, at the request of the Division, Dr. Trott, who had performed a psychological evaluation of Rose in July 2007, conducted another psychological evaluation of Rose. In his cognitive assessment, he noted that Rose demonstrated "significant difficulty copying the nine test designs on the single sheet of paper. Her work at that time appeared most haphazard, poorly organized. Her performance deteriorated from that presented one year before." Dr. Trott attributed Rose's "decrease in functioning" to her "overall psychological deterioration" and opined that "some stress was impacting negatively on this mother significantly decreasing her ability to reason cognitively."

Addressing her performance during the social-emotional assessment, Dr. Trott found that as "testing progressed [Rose] provided responses showing she was at that time emotionally distressed and so emotionally impaired that she could not be considered ready to parent." His overall impression was that

this mother is most psychologically distressed and cannot parent at this time. Information obtained shows that she is struggling with a thought process disorder, a personality disorder, is depressed and maybe suicidal. She continues to appear similar to adults who later are involved in child neglect or abuse. While [Rose] appears cognitively competent, her emotional distress is so significant as to not allow her to employ her cognitive skills and insight. She feels persecuted, isolated. [Rose] is at risk for harming herself without treatment and support will encounter increased risk towards further psychological deterioration.

Dr. Trott reported that Rose "is struggling psychologically[,] showing evidence that she feels persecuted, sustains a thought process disorder, is depressed and maybe suicidal." Dr. Trott diagnosed Rose with Depressive Disorder NOS and Schizoid Personality Disorder and recommended that Rose "cannot parent at this time" and "is at risk for harming herself without treatment[.]"

Throughout the balance of 2009, Rose continued to avail herself of services offered by the Division, and the court entered a number of orders confirming Rose's compliance with court orders. She also underwent another psychiatric evaluation by Malini Bahtia, M.D., who opined that Rose exhibited poor insight and judgment and diagnosed her with impulse control disorder and alcohol abuse.

The Division filed a complaint seeking a judgment terminating Rose's parental rights to Carlos and his guardianship. In preparation for trial, the Division retained psychologist, Rachel Jewelewicz-Nelson, Ph.D., to perform a psychological evaluation of Rose and Carlos. She separately met with both twice before issuing her report. She found Rose to be "emotionally fragile and unstable," and without an understanding of "the harm she has caused her children." She expressed the opinion that Rose "is at risk for repeated incidents of child physical abuse in the future." At trial, she testified consistent with the opinions expressed in her report, but added that "not only would [Carlos] not suffer harm if he never saw his mother again, he would experience relief, and that it would enhance his ability to continue to grow and develop appropriately." She also testified, based upon her evaluation of Carlos, that he "is traumatized by his experiences with his mother" and recommended that he remain in the care of his maternal aunt, who he refers to as "grandma."

Also in anticipation of trial, the Division requested an updated psychiatric evaluation from Dr. Oquendo. She diagnosed Rose as suffering from Intermittent Explosive Disorder with "symptoms of depression [that] continue[d] to be in remission[.]" She also noted, at that time, that Rose presented "no symptoms of psychosis or suicidal ideation." She recommended that in light of Rose's demonstrated compliance with the Division's directives and in the absence of signs of mental illness, "she should be allowed to have supervised visits with her children" and possibly unsupervised visits if appropriate. After receiving this report, the Division apparently provided Dr. Oquendo with Dr. Jewelewicz-Nelson's most recent evaluation and, upon reviewing this report, Dr. Oquendo wrote a letter in which she expressed her concurrence that "[Carlos] needs to be protected" and her agreement with all of Dr. Jewelewicz-Nelson's recommendations. Specifically, she opined that "[Carlos] should not be forced to meet with his mother . . . and reunification should be postponed until [Rose] and [Carlos's] therapists believe that it would be in [Carlos's] best interest to interact with his mother."

The guardianship trial commenced March 21, 2010 and was concluded on May 20, after six non-consecutive days of trial. After considering all of the evidence presented, the trial judge issued a written opinion in which he concluded the Division had satisfied all four statutory prongs of the "best interest" test for termination of Rose's parental rights to Carlos by clear and convincing evidence. The present appeal followed.

On appeal, Rose raised the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN RULING THAT [ROSE]'S PARENTAL RIGHTS SHOULD BE TERMINATED[,] AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.

A. THE CHILD'S HEALTH AND DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.

B. [ROSE] WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILD AND WAS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.

D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

In concluding that the best interest of Carlos warranted termination of Rose's parental rights to him, the judge applied the four-prong test contained in N.J.S.A. 30:4C-15.1(a), which requires the Division to establish, 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.

In addressing the first prong, the trial judge found that a number of undisputed facts supported termination, including Rose's prior conviction for cruelty exhibited towards Melody when the child was only seven months old, an April 23, 2007 referral from school personnel reporting that Carlos was sent to school filthy and wearing girls' underwear, and the May 28, 2008 assault upon Martha witnessed by Carlos for which Rose pled guilty to second-degree aggravated assault. The judge credited the testimony of Dr. Jewelewicz-Nelson that Rose's actions on May 28 psychologically traumatized Carlos and impacted upon how Carlos perceived his mother.

From our review of the record, it is clear that Carlos's fear of his mother was not confined to the May 28 incident. Rather, he shared with Division caseworkers and Dr. Jewelewicz-Nelson other incidents that left him fearful of his mother and with no desire to see her. A finding of harm need not be based on extremes. Harm can be found where conduct is "detrimental to the physical or mental health of the child, specifically in the form of actual or imminent harm." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986). In A.W., the Court found harm where the mother was frequently and intensely battered by her husband, id. at 596, and their two sons "showed minor signs of physical neglect but major signs of a lack of emotional and developmental growth." Id. at 597. Carlos's witnessing of plaintiff physically abusing his sibling as well as his own reported interactions with Rose support the judge's findings as to the first prong.

Similarly, there was ample evidence in the record supporting the judge's conclusions regarding the second prong. Dr. Jewelewicz-Nelson testified that Rose externalized blame for the assault she committed upon Martha, which, in the doctor's opinion, increased the risk that Rose would cause harm to Carlos in the future. As the court stated in J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978), "[p]redictions as to probable future conduct can only be based upon past performance[.]" See also N.J. Div. of Youth & Family Servs. v. C.H., 414 N.J. Super. 472, 482 (App. Div.), same result on reconsideration, 416 N.J. Super 414 (App. Div. 2010); N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). Rose's past behavior as a predictor of probable future behavior was particularly relevant because she continued to take no responsibility for her abusive actions towards her children.

At the time Dr. Jewelewicz-Nelson conducted her last evaluation of Rose in anticipation of trial, Rose had completed numerous services offered by the Division, including parenting classes and abuse counseling. Nonetheless, she would not take responsibility for her actions and ignored the fact that it was a condition of bail that prohibited her from having contact with her children and, instead, placed all of the blame for the lack of contact upon the Division. While it is true the Division took no affirmative steps to amend the bail order so that Rose could have supervised visits with her children, particularly Carlos, the record is also devoid of any independent effort Rose undertook, through the criminal proceedings, to modify the order, at least as to Carlos, who was not the victim in the criminal proceedings. Under these circumstances, the record demonstrated an inability to eliminate harm to Carlos, and the delay in establishing permanency with his maternal great-aunt, with whom he had a warm and secure relationship, added to Carlos's harm.

Likewise, the record amply demonstrates that the Division made reasonable efforts to assist Rose in obtaining services that would assist her in correcting the conditions that led to Carlos's removal and reunification with Carlos. The reasonableness of the Division's efforts is not measured by their success but whether the efforts were reasonable under the circumstances. In re Guardianship of D.M.H., 161 N.J. 365, 387-393, 391 (1999).

Unquestionably, Rose successfully completed many of the programs offered. Her successful completion of those programs, however, was belied by her continued refusal to recognize that the physical force she used to discipline her children was excessive and inappropriate. The services provided to Rose were tailored to her needs and included services to assist her in developing her parental skills, proper hygiene, addressing her anger issues, and understanding domestic violence. The discharge summary from the Options Counseling Center, where she had undergone fourteen weeks of treatment in 2009 for parenting, anger management, substance abuse, and domestic violence, expressed concerns as to whether the techniques she learned to address issues, such as her anger management, would correct her behavior. We are satisfied there is substantial credible evidence in the record to support the judge's findings relative to the third prong.

Finally, turning to the fourth prong, the court credited Dr. Jewelewicz-Nelson's testimony that Rose lacked the psychological capacity, at the time of trial and in the foreseeable future, to provide a safe and stable home for Carlos given the trauma he suffered while in the custody and care of his mother. The judge also credited Dr. Jewelewicz-Nelson's opinion that "not only would [Carlos] suffer no harm if [Rose's] rights were terminated but 'he would experience relief,'" and "there is a 'very significant and severe risk of harm if [Carlos] is placed back with his birth mother.'"

Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered 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). Consequently, we only intercede to correct those factual findings when we are satisfied they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998). We discern no basis to do so on the record before us.

Affirmed.

1 Because the names of two of Rose's children have the same initials, we have chosen to use fictitious names not only for the children but for the parents and foster parent as well.

2 The whereabouts of Clarence were unknown to the Division throughout the entirety of this matter.

3 In view of the recommendation that there be supervised visitation, the court, during a December 2009 case management conference, invited defense counsel to seek a modification of the no contact order from the Criminal Division judge presiding over the criminal proceedings. Apparently, that modified order was never sought.