NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5986-09T1

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.T.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF C.S., JR., AND D.S.,

Minors.

April 25, 2011

Submitted March 7, 2011 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-182-09A.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors C.S., Jr., and D.S. (Christopher A. Huling, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

Defendant L.T., the mother of D.S., born April 8, 2004, and C.S., Jr., born March 13, 2005, appeals from the June 30, 2010 termination of her parental rights. L.T. alleges the State failed to meet the four-prong test found in N.J.S.A. 30:4C-15.1 by clear and convincing evidence. We do not agree, and therefore affirm.

We first summarize the evidence and documents presented to the trial court. The Division of Youth and Family Services (the Division) first became involved with L.T. in 2002, prior to the birth of the two children now at issue. As a result of those earlier proceedings, L.T.'s two older children have been in their grandmother's custody pursuant to a kinship legal guardianship agreement (KLG) since March 2005. See N.J.S.A. 3B:12A-1 to -7.

In November 2005, C.S.,1 the children's father, attempted suicide after L.T. requested that he move out of their home. In the Division's ensuing investigation of the children's safety because of the domestic violence which preceded the incident, C.S. admitted to physically abusing L.T. As a result, the Division began to informally monitor the family, concerned not only about domestic violence in the home but also L.T.'s refusal to participate in counseling.

On January 22, 2006, C.S. again assaulted L.T. It was alleged that he struck C.S., Jr. during the course of the confrontation, although no injuries were observed on the child and L.T. declined to obtain medical attention for him. C.S. was arrested on a charge of simple assault, but L.T. initially refused to obtain a temporary restraining order (TRO). Over the next two days, however, he repeatedly returned to the apartment and assaulted her. As a result, L.T. obtained several TROs, and a final restraining order (FRO) issued February 8, 2006.

When visited by her caseworker in May, L.T.'s apartment was found to be unclean and chaotic; garbage was spread on the floor mixed with roaches and cigarettes. Because the children nonetheless appeared to be adequately dressed and groomed, no action was taken. L.T. was reminded that the restraining order prevented C.S. from being in the home. Yet, within two weeks, C.S. had returned to live with L.T. and the children.

The home continued to be in poor condition and the children now appeared hungry: Division workers noted the only food in the kitchen was iced tea. Once the Division discerned C.S. was again living in the apartment, he was ordered to leave. Division workers also spoke to L.T. about concerns that the only food observed in the house on a second occasion was iced tea.

On June 1, 2006, L.T. dismissed the FRO restraining C.S. from the home. As a result, the Division filed an order to show cause for custody and supervision of the children, which was granted as to supervision, but denied as to custody. Around this time, L.T. was evicted from her Section 8 housing because of the domestic violence involving C.S. She then moved into the home of her former health aide. This arrangement lasted only briefly as, on July 10, 2006, the aide called the Division concerned about L.T.'s mental state and parenting abilities. The aide also indicated that conflicts between L.T. and C.S. continued; at one point, she had to intervene. She noted L.T. needed reminders to change the children's diapers, feed them, and bathe them.

Ultimately, L.T. was transported to Jersey City Medical Center for a psychiatric evaluation. She was discharged the following morning and evaluated on behalf of the Division by Dr. Robert Kanen, a psychologist, on July 11, 2006. Among other issues, he found she had an I.Q. of 73, placing her in the borderline range of intelligence. In his opinion, this cognitive limitation, when joined with her other challenges, would make it very difficult for her to effectively function in daily life and be able to adequately care for her children. He diagnosed her with a delusional disorder and paranoid ideation, and characterized her as suffering from severe parenting deficits which exposed her children to the risk of neglect.

L.T. and the children next moved into L.T.'s grandmother's home in a senior citizen apartment complex. C.S. was barred from that residence, and homemaker services were put in place. Because of L.T.'s significant progress, the homemaker services were removed on September 18. On October 10, the grandmother was informed that L.T. and her children were going to be asked to leave the apartment complex. By December, the grandmother had received additional notices requiring L.T. and her children to vacate the premises by January 16, 2007. If L.T. and the children did not leave, she too would be evicted and homeless. She was very concerned that L.T. did not seem to comprehend the gravity of the situation.

In December 2006, L.T. stipulated to the Family Court's jurisdiction and agreed to accept Division services. Another instance of domestic violence occurred on December 11 C.S., L.T., and the children moved in with another relative, and once again homemaker services were provided for the family. On February 25, the Division learned the family had been asked to leave that relative's home because of problems resulting from L.T.'s conflicts with C.S.

During this period of time, the children were diagnosed as suffering from significant dental, developmental, and behavioral issues. Despite the Division's scheduling of appointments, L.T. showed a complete inability to follow through on the children's urgently needed dental care, necessary early intervention services, and speech difficulties.

L.T. submitted to a psychiatric evaluation with Dr. Alison Strasser Winston on July 3, 2007, who noted she had an adequate degree of emotional attachment to her children and seemed to acknowledge their speech difficulties. Although her shortcomings in the area of understanding child development were again documented, Dr. Winston did not diagnose L.T. as suffering from a delusional disorder.

By February 4, 2008, L.T. appeared to have made some progress. The Family Resource Center, an agency involved with the family, informed the Division that L.T. had completed additional schooling, was volunteering at a local daycare, and had "come a long way."

On February 11, however, C.S. again assaulted L.T. According to L.T., C.S. did so with the specific intent that the Division remove the children. L.T. admitted C.S. had choked and bitten her, and showed the worker bite marks on her arms, although she claimed the children were at daycare when the incident occurred. The worker reminded L.T. the Division was more likely to seek the removal of the children if she did not obtain an FRO against C.S. An FRO hearing was scheduled for February 21.

On February 13, the Division was advised C.S. was not compliant with anger management services. When a caseworker called the apartment on February 26, C.S. answered the phone and identified himself. The Division then learned neither party had appeared at the February 21 hearing and that L.T. had cancelled the two most recent sessions with her domestic violence counselor. At an unannounced visit that same month, the Division worker observed L.T.'s home was in significant disarray.

Pursuant to N.J.S.A. 9:6-8.29, the Division immediately executed a Dodd removal of the children and placed them in a foster home. While the children were receiving pre-placement physicals, L.T. contacted the Division to state that, despite the removal, "she was dropping the restraining order in order to work things out 'like a family.'"

On February 28, 2008, the Division was granted custody of the children. They were initially placed with a maternal relative, but that individual could not care for them over the long-term. Three months later, they were transferred to the home of their paternal aunt, N.S., who lives in Virginia. They have lived continuously with her since that time. L.T. was granted two hours of weekly visitation with the children so long as they remained in New Jersey, and four hours per month once the placement in Virginia with N.S. was completed.

L.T. was reevaluated by Dr. Winston on April 22. On this occasion, Dr. Winston was concerned about L.T.'s inexplicable inability to understand how her children were at risk as the result of recurring domestic violence between their parents. Despite her strong emotional attachment to the children, Dr. Winston concluded L.T.'s cognitive difficulties made it questionable whether she could ever develop the skills necessary to appropriately care for them and protect them from harm. In reaching her conclusions, Dr. Winston referenced L.T.'s failure to keep the children's dental, developmental, and speech therapy appointments.

On April 9, while the children were in foster placement, the Division determined that C.S., Jr., had nine cavities and D.S. had six. Additionally, C.S., Jr., at three years of age, was having difficulty walking while D.S., at four, was still learning to dress herself and clean herself after using the bathroom.

On May 15, 2009, after months passed notably without incident, L.T. was psychiatrically evaluated by Dr. Robert James Miller, II. Dr. Miller diagnosed L.T. as suffering from either paranoid or delusional schizophrenia and paranoid personality disorder. L.T. reported to Dr. Miller that she had the ability to see her mother, who died when L.T. was young, watching over her. She also claimed D.S. could see her mother and explained that her son, who could not yet see the dead, would soon grow into it.

Dr. Miller further expressed concern that L.T. was unaware of appropriate developmental milestones for her children and did not see them as fully separate individuals with their own emotional needs. L.T. did not seem to comprehend the developmental issues faced by her children.

On June 1, the Division filed a complaint for guardianship.2 Dr. Miller, who conducted bonding evaluations on June 8 and 9, concluded the children had meaningful attachments with all three significant adults in their life their parents as well as their foster mother, N.S. He recommended, however, that they remain in the care of N.S. in the foreseeable future based on his observations of the parents and their children. As stated in the report:

the children in this case should continue to benefit from the effective age-appropriate parenting style demonstrated by [N.S.] and the greater psychological harm would be to return the children to the care and custody of the biological parents in this case. . . . [They] should not be considered as primary caretakers for the children at this time or for the foreseeable future. Placement of the children in the care and custody of the biological parents would expose them to unnecessary risk of harm and to further emotional neglect.

On September 18, 2009, following mediation, N.S. preliminarily consented to enter into a KLG agreement with C.S. and L.T. On October 10, C.S. and L.T. were married. On December 10, N.S. changed her mind after overhearing L.T. attacking C.S. while talking to him on the phone. As confirmed to the court in a March 3, 2010 hearing, N.S. thus determined to adopt the children. In preparation for trial, Dr. Miller performed additional evaluations of L.T. and C.S. on February 11 and March 1, 2010. The evaluations were conducted to determine whether services provided to the parents had had any ameliorating effect.

The parents arrived twenty-five minutes late to at least one interview. L.T. appeared disheveled and unkempt, and expressed frustration at having to be evaluated again. She asserted her marriage to C.S. was going well and explained that she had been prescribed a drug by her primary care physician to address her depression. L.T. was unable to name the physician or provide a business card. She was also unable to name the psychiatrist with whom she was allegedly treating. L.T. stated that since her children had moved to Virginia, she had difficulty sleeping and had spent days in bed lying fully awake. She continued to believe she had the ability to see and communicate with her deceased mother, but was unable to appropriately detail her children's current health and developmental status and receipt of services.

Based on these further evaluations, Dr. Miller diagnosed L.T. as suffering from a severe psychological disorder, as a result of which she experienced "florid psychotic process[es]." He did not perceive there to be any change in L.T.'s coping skills, and only noted a deteriorated psychological state as a result of her insomnia. Dr. Miller recommended the children continue in the care of N.S. in Virginia.

In a nineteen-page written opinion, Judge Nelson concluded the Division had met the statutory test by clear and convincing evidence, based on the proofs presented by the Division. We affirm essentially for the reasons stated in his detailed and thoughtful decision, and add only the following.

This court exercises only a limited review of a trial court's decision to terminate parental rights. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Significant deference is accorded the trial judge's factfinding and credibility determinations, derived from recognition of his or her ability to observe the witnesses firsthand and develop a clear "feel of the case[.]" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)), aff'd in part and modified in part, 179 N.J. 264 (2004). Reversal is required only where the court's findings went "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal citations omitted).

To prevent the State's parens patriae responsibility to protect minors from significant physical or emotional injury from improperly trumping a biological parent's "constitutionally protected, fundamental liberty interest" in raising his or her children, the Division must first satisfy the "best interests of the child" test, set forth at N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. 1998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000); see N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 241 (App. Div. 2010).

Specifically, the Division must show

(1) [t]he child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) [t]he 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 [or her] resource family parents would cause serious and enduring emotional or psychological harm[;]

(3) [t]he [D]ivision 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) [t]ermination of parental rights will not do more harm than good.

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

These criteria "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." K.H.O., supra, 161 N.J. at 348. In this respect, the test does not focus on establishment of a "single or isolated harm"; rather, "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

It is clear that L.T., with and without C.S., has significantly failed to provide a safe and nurturing environment for her children. Despite being provided with substantial resources, including, but not limited to, counseling, homemaker services, furniture, clothing, dental care, and speech therapy for the children, L.T. has simply been unable to provide them with any approximation of a safe, nurturing, and stable environment. Her inability to accept, much less understand, the ways in which the recurring domestic violence between her and the children's father poses a risk to their well-being is beyond inexplicable. We are satisfied the trial judge's conclusion that there was clear and convincing evidence the children's health, safety, and development had been or would be endangered by the parental relationship has ample support in the record. The Division met the first prong of the test.

We are similarly convinced, as set forth in the court's decision, the Division proved by clear and convincing evidence that L.T. was unable or unwilling to provide the children with a safe, nurturing, and stable home, and that delay of permanent placement would add to the harm inflicted upon the children. It must be noted that L.T. faces intractable life challenges ranging from cognitive limitations, mental health issues, and the inability to care for herself appropriately. She has not been able to manage her housing situation or maintain employment. After the removal of her children, her condition worsened rather than improved. The second prong of the test was met.

L.T. argues that "cultural differences" explain the visualizations of her mother, and that they are not symptomatic of psychiatric illness. We do not agree, either in principle or as to this individual. No cultural difference explains L.T.'s hallucinations, which she actually denied experiencing when in a more stable mental state for a brief time during her interview with Dr. Winston.

L.T. also asserts the Division did not provide her with psychiatric assistance and, by that omission, failed to undertake reasonable efforts to assist the family in "correct[ing] and overcome[ing] those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. In other words, the third prong of the test was not satisfied. Again, we do not agree. A host of services were extended to L.T. over many years, which did not stabilize her situation. These services included counseling to help L.T. address the chronic domestic violence issues in her life. Those services were provided with no visible effect.

Indeed, several Family Part judges responsible for this matter initially refused to approve the Division's plan of termination, hoping L.T.'s engagement with services would stabilize her life situation sufficiently to allow the return of the children to their mother. It was not until Dr. Miller supplied his report finding she had actually deteriorated, and had not benefited from either the passage of time or the provided services, that the court approved the plan.

Dr. Miller opined there was no reasonable prospect in the foreseeable future that L.T.'s psychiatric condition would improve. It is speculation and nothing more to suggest that, if only she had been provided with psychiatric services, L.T.'s condition would improve so as to enable her to care for the children. The third prong was also met by clear and convincing proof.

The final prong of the best interest test is whether termination of L.T.'s parental rights will not do more harm than good. We note that after the passage of this much time, the children have developed a stronger bond to their resource parent, "which if severed could cause the child profound harm." K.H.O., supra, 161 N.J. at 352. Given the length of time spent in placement, and the difficulties experienced by the children when residing with their natural parents, the answer to this question seems clear. We therefore conclude, as did Judge Nelson, the State has proven that despite the natural harm resulting to the children from termination of parental rights, the benefits of freeing them for adoption outweigh that harm.

A

1 C.S.'s parental rights were terminated by the same order; he does not join in the appeal.

2 The Division's proposed permanency plan of termination followed by adoption by N.S. was rejected on several occasions from February 2008 through June 2009. It was not until July 15, 2009, after receipt of reports from Dr. Miller and Dr. Winston, that the plan was approved.