NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. B.C.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2004-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

B.C.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.A.R., a minor.

_________________________________

October 25, 2012

Submitted October 3, 2012 - Decided

Before Judges Grall and Koblitz.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-03-11.

Joseph E. Krakora, Public Defender, attorney for appellant B.C.R. (Eric R. Foley, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Melissa H. Raksa, Assistant Attorney General, of counsel; Mary Jane Lembo Cullen, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.A.R. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

B.C.R. appeals from the November 16, 2011 order terminating her parental rights to her son, A.A.R., who was born in June 2009. B.C.R. argues that the Division of Youth and Family Services (Division) did not demonstrate by clear and convincing evidence three of the four prongs of N.J.S.A. 30:4C-15.1a. The law guardian supported termination in the trial court and, on appeal, joins the Division in urging us to affirm. After reviewing the record in light of the contentions advanced on appeal, we affirm.

B.C.R. first became known to the Division after allegations were brought against her parents for abuse and neglect. She was raised in foster care in various placements. She reports that she was raped, abused and neglected while in placement before December 2011, when she was placed in a foster home with B.O. B.C.R. exhibited aggressive physical and verbal behavior in school and was identified by one school psychologist as having "serious social and emotional problems." She was classified as being multiply handicapped.

In December 2002, at the age of fifteen, B.C.R. gave birth to her first child, I.R., who lived with B.C.R. in B.O.'s foster home until June or July 2005. At this time, B.C.R. was evaluated by Cherie L. Young, Psy.D. Dr. Young found that her parenting capacity was inadequate and, based on testing, diagnosed her with severe major depressive disorder, with psychotic features, and borderline personality disorder. B.C.R. was subsequently hospitalized for approximately two weeks in a psychiatric unit. She did not comply with the numerous referrals for services provided by the Division after her release. In May 2005, she was arrested after throwing a bottle at a police officer.

In September 2006, B.C.R. was evaluated by another doctor, who found it unlikely that B.C.R. could "successfully and safely parent her child independently in the foreseeable future." B.C.R.'s diagnostic tests at this time indicated that she had intermittent explosive disorder, depressive disorder and borderline personality disorder. On February 5, 2007, B.C.R. voluntarily surrendered her parental rights to I.R., who was adopted by the child's paternal grandmother.

B.C.R. gave birth to A.A.R. in June 2009, by emergency c-section. He was born six weeks premature with encephalopathy and is developmentally delayed.2 The Division received a referral from Capital Health Systems because B.C.R. was not taking her psychological medications, had limited support, and had exhibited issues regarding her ability to care for a child. The Division investigated the matter and found that B.C.R. was living with a friend, receiving SSI benefits, and was unemployed. The Division confirmed that she was not taking her medication and did not have baby supplies for A.A.R. B.C.R. stated and later confirmed that she believed it appropriate to discipline her child by hitting him.

A.A.R. was placed in foster care with L.R. shortly after birth. He has remained in L.R.'s foster home since this time.

One month after A.A.R. was born, Alan Lee, Psy.D., conducted a psychological evaluation of B.C.R. Dr. Lee reported:

there remain striking concerns about [B.C.R.]'s ongoing inability to independently care for a minor child, especially a rather young minor child who, by virtue of his chronological age and associated development, remains highly vulnerable and dependent on a stable caretaker. Reunification of the minor child [A.A.R.] to the birth mother is not supported at this time.

Dr. Lee administered the Child Abuse Potential Inventory (CAP I), and concluded that B.C.R. had many characteristics in common with child abusers. He identified her as angry, aggressive, depressed and impulsive and suggested that she be assessed to determine if psychological medication was appropriate.

A psychiatric evaluation of B.C.R. resulted in diagnoses of major depression and intermittent explosive disorder.

B.C.R. was referred to various programs, at times participating and other times refusing to participate. One program indicated that she did not exhibit enough therapeutic progress to parent effectively, and recommended adoption.

Two months later, the court found that B.C.R. was "being deliberatively obstructive" and ordered her to attend medication monitoring services. B.C.R. informed Division staff that she felt she was not receiving the appropriate medication and refused to take the medicine prescribed. She has at times self-medicated using marijuana. A few days after a visit with A.A.R., his foster mother found loose pills in a bag he had received from B.C.R.

At the Division's request, Amy Becker-Mattes, Ph.D., conducted a psychological evaluation of B.C.R. in January 2011. After the evaluation, B.C.R. was classified as "experiencing a serious psychological disturbance." Under the Adult-Adolescent Parenting Inventory, three out of five of her scores were identified as "high risk for abusive parenting behaviors." She exhibited elevated abuse scores on the CAP I. Dr. Becker-Mattes recommended that B.C.R. "not be considered as the caretaker of a minor."

The following day, Dr. Becker-Mattes conducted a bonding evaluation of A.A.R. and his foster mother, L.R. In her report, Dr. Becker-Mattes concluded that,

[L.R.] and [A.A.R.] appear to have a loving, reciprocal relationship that involves structure, learning and discipline, as well as fun. It seems to be the case that [A.A.R.] counts on his foster mother for a sense of safety, security, nurturance and guidance. It is this examiner's impression that to disrupt this relationship could potentially do serious psychological harm to this child. This opinion is rendered within a reasonable degree of psychological certainty.

Dr. Becker-Mattes also conducted a bonding evaluation of B.C.R. and A.A.R. While noting the positive interaction between B.C.R. and the child, Dr. Becker-Mattes concluded that,

[B.C.R.] cannot be seen as someone who can offer a child sufficient safety, security, nurturance and guidance. This is despite the fact that she appears to have a generally positive rapport with her son. This examiner does not feel that [B.C.R.] can be considered as a caretaker of [A.A.R.] now or at any time in the foreseeable future. This opinion is stated within a reasonable degree of psychological certainty.

In February 2011, the Division was informed that B.C.R. stopped attending most of her required services, as she did not believe she needed them. In September, B.C.R. threatened to assault her Division caseworker and threatened to burn down the Division's office. B.C.R. also did not allow the Division to inspect her home.

B.C.R. consistently attended supervised visitation with A.A.R. She was provided bus passes by the Division. At no point did B.C.R. identify a person who could care for A.A.R., or offer an alternate plan regarding custody of A.A.R.

L.R. wants to adopt A.A.R. She is willing to allow B.C.R. to visit as long as she behaves appropriately.

B.C.R. raises the following issues on appeal:

POINT I: THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING B.C.R.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).

A. THE TRIAL COURT'S DETERMINATION AS TO THE FIRST PRONG OF THE STATUTE IS NOT SUPPORTED BY SUBSTANTIAL, CREDIBLE EVIDENCE.

B. THE COURT'S FINDINGS AS TO THE SECOND STATUTORY PRONG WERE INSUFFICIENT TO SUPPORT A DETERMINATION THAT THE DIVISION MET ITS BURDEN OF PROOF BY CLEAR AND CONVINCING EVIDENCE.

C. THE DIVISION'S EFFORTS TO REUNIFY THE FAMILY WERE INSUFFICIENT TO SATISFY ITS OBLIGATIONS UNDER THE THIRD PRONG.

The standard of review in parental termination cases has been established by the New Jersey Supreme Court:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.

[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (internal quotation marks and citations omitted).]

The Supreme Court has "consistently imposed strict standards for the termination of parental rights." See In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). When seeking the termination of a parent s rights pursuant to N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following factors:

(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.

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 448 (internal quotation marks and citations omitted).

"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." K.H.O., supra, 161 N.J. at 347 (1999) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

We affirm substantially for the reasons expressed by Judge Audrey P. Blackburn in her oral decision of November 16, 2011. We add only the following comments. B.C.R. does not contest that the Division proved prong four, that termination "will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Indeed, the bonding evaluation demonstrated that A.A.R. would be harmed far more severely by separation from L.R. than by termination of B.C.R.'s rights.

Judge Blackburn noted, in considering prong one, N.J.S.A. 30:4C-15.1(a)(1), that B.C.R.'s untreated psychiatric issues endangered her son's safety and development, especially in light of A.A.R.'s special needs, which cause him to be very active and require a patient, calm and consistent caretaker. B.C.R.'s explosive temper, poor judgment and unpredictable behavior, combined with her refusal to take prescribed medication, put A.A.R. at great risk of harm in her care. A court need not wait until the child is "irreparably impaired" by parental abuse or neglect. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted).

B.C.R.'s refusal to take prescribed medication, complete the therapeutic programs she began, or allow the Division to inspect her home demonstrated prong two, her unwillingness or inability to eliminate the harm facing A.A.R. N.J.S.A. 30:4C-15.1(a)(2).

As Judge Blackburn pointed out, the Division provided visitation, bus passes, evaluations and program referrals, all to no avail. Here, there is no indication that the Division failed to provide adequate referrals based on B.C.R's age or previous custodial status. B.C.R. was twenty-two and no longer in the custody of the Division when her second child, A.A.R., was born. See N.J. Div. of Youth & Family Servs. v. L.J.D., __ N.J. Super. __, __ (App. Div. 2012) (slip op. at 47) (finding that the Division has a heightened burden to demonstrate that the services extended were reasonable based on the parent's young age of fourteen and her status as a child in the custody of the Division). Thus, prong three was also satisfied by clear and convincing evidence. N.J.S.A. 30:4C-15.1(a)(3).

It is clearly in A.A.R.'s best interests to be adopted by the only caretaker he has ever known, L.R.

A

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families. The reorganization includes the renaming of the New Jersey Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 He is a special-needs child who receives occupational, physical and speech therapy.