DIVISION OF YOUTH AND FAMILY SERVICES v. L.M IN THE MATTER OF THE GUARDIANSHIP OF N.M Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2128-10T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF N.M.,

Minor.

March 13, 2012

Submitted January 23, 2012 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0109-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor N.M. (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

Defendant L.M. appeals the November 5, 2010 Family Part judgment terminating her parental rights to N.M., born August 19, 2006, pursuant to N.J.S.A. 30:4C-15(c) and -15.1. For the reasons that follow, we affirm.1

The Division of Youth and Family Services (the Division) removed N.M. from L.M.'s care on an emergent basis on February 7, 2009. It was the second referral the Division had received regarding the child, although L.M. had numerous contacts with the Division beginning in 1997 regarding two other children whose placements are not in dispute. In fact, L.M.'s parental rights were previously terminated as to one of those children.

The Division filed a verified complaint for custody of N.M. on February 10, 2009. The child was placed initially with the maternal grandmother, and subsequently, with a maternal cousin.2 The child continues to reside with the cousin and she wishes to adopt him.

The Division engaged in reunification efforts until January 20, 2010, when a permanency hearing was conducted. At that juncture, the Family Part judge accepted the Division's plan for termination of parental rights, followed by adoption. The court then indicated that "it is not and will not be safe to return the child[] home in the foreseeable future because [of L.M.'s] serious and ongoing mental health problem . . . ." The court also referred to L.M.'s unresolved substance abuse issues as additional grounds that warranted the Division moving forward. Accordingly, the Division filed a complaint for guardianship on February 25, 2010.

The following family history was developed during the trial. The Division's first contact with L.M. with regard to N.M. occurred on February 27, 2008, when L.M. was admitted to a hospital for auditory hallucinations and homicidal ideation towards N.M., which she subsequently denied. At the time, she was reported as having said that "babies are bad." Although L.M. had been prescribed medication, she refused to take it. N.M. was then in the care of his maternal grandmother.

The Division took no further action as L.M. had arranged for the child to stay with her mother, and L.M.'s doctor at the time believed that the issue had been "blown out of proportion[,]" although the Division worker urged L.M. to continue to attend "South Jersey Behavioral," the agency that was treating her mental health issues. The Division closed its case in August 2008 as L.M. was then compliant with her medication regimen. Records from that hospitalization also indicate that L.M. was to return to a substance abuse treatment provider, Parkside Recovery, for outpatient services and methadone maintenance. Whether L.M. returned to Parkside Recovery is not known; the date she stopped taking her medication is also unknown.

On February 7, 2009, almost a year later, L.M. appeared with N.M. at Our Lady of Lourdes Hospital, claiming, in graphic terms, that the child had been sexually assaulted. L.M. said that when she awakened that morning and checked on the child, he had semen and pubic hair in his mouth, and signs of assault around his rectum. L.M. was uncooperative and attempted to leave the facility before the child could be seen by a physician, although she did ask to speak to a Division worker. After being interviewed, L.M. was admitted to the crisis unit of the hospital. This episode resulted in the Division seeking emergency removal of N.M.

Even though the Our Lady of Lourdes doctor concluded, after examining N.M., that the allegations of sexual abuse were unfounded, the Division had N.M. evaluated on February 10, 2009. The rape kit completed at the hospital did not produce evidence of abuse; no abuse was found to have occurred.

On April 1, 2009, during a visit with N.M. at Division offices, L.M. took the child out of the building without authorization. She was discovered some two hours later; in the interim she had changed the child's clothing and taken him to a shelter. L.M. ultimately pled guilty to interference with custody, N.J.S.A. 2C:13-4(b), and on July 17, 2009, was placed on probation for a term of two years, conditioned upon her compliance with her medication regimen and with Division recommendations.

The Division required L.M. to complete a substance abuse evaluation and referred her to the Substance Abuse Initiative. Evaluations were scheduled for June 16, June 25, and July 8, 2009. L.M. missed all of the appointments, resulting in the closure of her case on July 16, 2009.

On July 14, 2009, L.M. attended a psychological evaluation with Dr. Meryl E. Udell. It was Udell's opinion that L.M. suffered from "[b]ipolar [d]isorder with psychotic features vs. schizophrenia," and "[o]piate [d]ependence in [r]emission by report of [L.M.]." She concluded that L.M. was "not able to appropriately and safely parent her child at this time." Udell's determination stemmed from L.M.'s significant mental health issues and her complete lack of understanding of the nature of her difficulties. Udell noted that in addition to her mental health issues, L.M. suffered from chronic homelessness and unemployment. She reported that at times L.M. had become hostile towards her. L.M. claimed she had not used heroin in "quite a while[,]" and denied the use of any drugs other than heroin or methadone.

Udell wrote an addendum to the evaluation report after she learned from the records of an agency called Crisis Services that on February 7, 2009, six months prior, L.M. had tested positive for cocaine and benzodiazepines. In the addendum, Udell recommended random urine drug screens to ensure that L.M. remained drug free.

On August 4, 2009, L.M. failed to appear for a compliance review hearing. A second substance abuse evaluation had been scheduled for August 5, 2009 L.M. was a no-show for that interview as well. During this time L.M. continued to visit with N.M. Some of the visits were problematic, however, because the child displayed a great deal of anxiety and anger in his mother's presence.

Prior to L.M.'s scheduled visit with N.M. on August 13, 2009, L.M.'s mother notified the Division that L.M. had been off her medications for six weeks and suggested she not be left alone with the child. At the end of the visit, as a case worker was putting N.M. in his toddler seat in a vehicle, L.M. accused the worker of inappropriately touching the child. The worker had to call for a supervisor to assist him.

N.M.'s foster mother reported that N.M. behaved poorly after the visits with L.M., and that the visits, in her opinion, were doing him harm. The child was evaluated in August 2009. His temper tantrums and inability to calm himself were attributed at least in part to separating from L.M., the parent-child relationship, and L.M.'s mental health issues. The child also displayed a high level of aggression. The therapist who conducted the evaluation recommended an early intervention assessment in order to rule out any learning or developmental disabilities, and monitoring for three to six months.

When, on August 28, 2009, L.M. called to schedule a visit with N.M. and was informed that a court hearing was scheduled that day at 2:00 p.m. to address her future visitation, L.M. said she could not attend. Although she met at the Division's office with a worker, she refused to accept the written notice of her court hearing. That day, the Family Part judge suspended her visitation.

Three days later when L.M. returned to the Division office and learned that her visitation had been suspended, she became very upset. She refused to accept the documentation the worker attempted to give her, and provided an address where she said the judge should mail her notice.

On October 22, 2009, L.M. was psychiatrically evaluated by Dr. Leon I. Rosenberg. Rosenberg found L.M. to be "notably dysfunctional . . . ." L.M. reported she had been suffering from auditory hallucinations and had been recently prescribed Xanax. Rosenberg opined that L.M. suffered from bipolar disorder with psychotic features, and his concern about her need for medication was so great that he prescribed an injectable form of Risperdal. In his view, she was unable to care for her child.

On November 13, 2009, L.M. was found guilty of violating her conditions of probation because she failed to report to her probation officer. Probation was nonetheless continued and she was ordered to meet with a specially designated mental health probation officer and attend Beacon Partial Care Center for outpatient mental health treatment.

L.M. did not attend the permanency hearing conducted on January 20, 2010, nor did she attend the March 17 or the May 4, 2010 hearings. She did, however, participate in the May 20, 2010 proceeding.

L.M.'s difficulty with appearing for scheduled matters also manifested itself in the context of psychological and bonding evaluations scheduled with Dr. Chester E. Sigafoos. Although she participated in the bonding evaluation, her conduct resulted in its abrupt interruption and the cancellation of her initial psychological evaluation.

During that episode, N.M. asked to go to the bathroom; L.M. volunteered to take him. When she was told that she would have to be supervised, she became argumentative, insisting that she could take her own child to the bathroom unsupervised. Sigafoos reported that he had to stand in front of L.M. in order to give the foster mother, who by then had entered the room, the opportunity to take the child to the bathroom unimpeded. Eventually, the Human Services Police were called to remove L.M. from the premises. Naturally, N.M. became distressed during the incident and afterwards; the foster mother told the caseworker that she did not wish to have further contact with L.M.

On May 11, 2010, Sigafoos completed the bonding evaluation of N.M. and his foster mother. He opined that a "healthy attachment bond" existed between them. In Sigafoos's view, N.M. would suffer greatly if his relationship with his foster mother was disrupted, and L.M. lacked the ability to assist him in recovering from such a loss. He perceived L.M. as being "in need of long-term mental health treatment" and characterized her as an "irrational and volatile person . . . not fit to parent a child." Sigafoos's concern about N.M.'s safety was so great that he considered even supervised visits to pose dangers and recommended that contact between L.M. and N.M. be stopped.

When L.M. submitted to a psychological evaluation with Sigafoos on October 10, 2010, she admitted that her mother had obtained a restraining order against her, as a result of which she had been homeless. As Sigafoos found, in addition to her polysubstance dependence, L.M. suffered from a bipolar disorder with psychotic-schizophrenic features and a borderline personality disorder. He opined that these conditions completely interfered with L.M.'s ability to interact with the child safely; only a dual diagnosis/MICA residential program could adequately treat her.

At trial, the Division presented only three witnesses, Sigafoos; Scott Abrowzowicz, a Division caseworker; and Dawn Hoyle, an adoption Division caseworker. L.M. neither testified nor presented witnesses.

Abrowzowicz testified that when he initially became involved with L.M. commencing in May 2009, she was actively participating in Beacon Behavioral Health, a partial care program that included monitoring patient compliance with psychiatric medication. He also said that L.M. had told him the reason she failed to appear for three scheduled substance abuse referrals was that she did not believe she needed to be evaluated as she had no drug issues.

Abrowzowicz testified over defense counsel's objection about the Division's involvement with L.M. prior to N.M.'s birth. He also stated that from May 2009 to July 2009, he observed a dramatic change in L.M., from a "pleasant, engaging, articulate" demeanor when she was reportedly taking her medication, to a "flat" demeanor, which resulted in L.M. at times completely ignoring the child during a visit. Abrowzowicz enumerated the referrals he had made for L.M. to obtain psychiatric treatment, at the University of Medicine and Dentistry, which was cancelled, and at the Center for Emotional Fitness, which she attended.

Hoyle testified that in February 2010 she initiated a search for L.M. and R.W., N.M.'s father, once the Division transferred the matter to the adoption unit. Hoyle located L.M. in May 2010.

Hoyle also testified that N.M. was thriving in his placement with his foster mother, and that the child had been classified and was receiving services in a preschool program for disabled children. The Division's plan for N.M. was relative adoption with his foster mother.

In the trial judge's twenty-nine page written decision, she concluded that the Division had met each prong of the statutory test for termination of parental rights. The court noted that L.M.'s use of drugs appeared to be ongoing, despite her assertions to the contrary. The judge reviewed L.M.'s hospitalizations since the birth of N.M., and the fact that she refused to take her prescribed psychotropic medications.

The judge mentioned L.M.'s acknowledgment that because she had stopped taking her medication, she was admitted to a crisis center on February 24, 2008. She also mentioned that when incarcerated on the charge of interfering with custody, L.M. reported that she refused all her prescribed medication. In June 2009, L.M. told Abrowzowicz that she did not believe she needed medication. In August 2009, L.M.'s mother notified the Division that they should not leave L.M. alone with N.M. because she had not taken her medication for six weeks and she was concerned for the child's safety. As the court opined, surely L.M. could not care for a child "when she cannot even properly care for herself."

The judge relied upon the experts' testimony and their written reports, including the expert opinions that N.M. would be significantly harmed by removal from his foster home. She enumerated the Division's efforts to involve L.M. in treatment, including referrals for evaluation, and the fact L.M. complied with so few. She pointed out that the Division had made supervised visitation available to L.M. until her behavior became a threat to the child's well-being. The judge reiterated Sigafoos's conclusion, that even if she were supervised, L.M.'s conduct still raised "strong concern[s] about the safety of [N.M.] . . . ." The judge actually found that the Division had met its statutory test by proof beyond all reasonable doubt, not merely the required standard of proof by clear and convincing evidence.

On appeal, L.M. alleges the court erred as follows:

I. THE TRIAL COURT'S TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE

A. The Trial Court Erred in Finding that DYFS Had Demonstrated, By Clear And Convincing Evidence, That Reasonable Efforts Were Made to Provide the Mother with Appropriate Services

B. The Trial Court Erred in Failing to Adequately Consider Alternatives to Termination of Parental Rights

Our task on appeal is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003), aff'd and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

"Clear and convincing" evidence is evidence which results in a firm belief or conviction as to the truth sought to be established. Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record overall that the Division met the statutory test by such evidence.

On appeal, L.M. focuses her claims of error on the third prong of the statutory test, requiring the Division to prove it 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 . . . ." N.J.S.A. 30:4C-15.1(a)(3). We agree with the trial court that the Division made the requisite reasonable efforts to engage L.M. in treatment, all of which efforts ultimately failed.

The statute defines such efforts:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation.

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

"Whether particular services are necessary in order to comply with the [reasonable] efforts requirement must therefore be decided with reference to the circumstances of the individual case before the court, including the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. Moreover, the court has stated that the Division's efforts to reunify the family must be "properly viewed in light of [its] efforts on behalf of [the] family as a whole." Id. at 391. The Division's "efforts are not measured by their success." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 117 (App. Div. 2004); see also, D.M.H., supra, 161 N.J. at 393 (explaining that focusing on the custodial parent is not unreasonable as long as DYFS does not ignore the other parent).

Since at least 2008, L.M. was supposed to have been engaged in treatment with various mental health facilities and care providers. L.M. was prescribed medication, in addition to being expected to comply with a medication regimen as a condition of probation. And despite the fact that her failure to take the medication resulted in several hospitalizations documented in the record, L.M. was routinely noncompliant and clearly did not follow through on the treatment she was being offered through agencies other than DYFS.

It is therefore unreasonable to claim, as L.M. does now, the Division should have done more to engage her in mental health treatment. She rejected all the efforts made by other entities or agencies. L.M. never submitted to a substance abuse evaluation, even though several were scheduled by the Division, despite the fact she tested positive for illegal drug use during the time these proceedings were pending. On one occasion, a psychiatrist retained by the Division to evaluate L.M. became so concerned about her mental state that he gave her a prescription for medication. The record does not indicate whether she did anything at all with the prescription.

Accordingly, we agree with the trial judge that the Division's efforts to engage L.M. with services were sufficient. There was substantial credible evidence presented that the Division attempted to obtain treatment for L.M. and that her failure to follow through was a choice she made. These reasonable efforts by the Division were more than sufficient to attempt to reunify parent and child. D.M.H., supra, 161 N.J. at 390.

L.M. contends that a court order was required before the Division could cease to offer services to her. N.J.S.A. 30:4C-11.3(c) states, however, that the Division need not engage in reasonable efforts to reunify parent and child where "[t]he rights of the parent to another of the parent's children have been involuntarily terminated." That was the case here, and no prior order was necessary.

With regard to the claim that the Division did not seek alternatives to termination, we agree with the trial judge that no other alternatives existed. The sole alternative L.M. raises in her brief is that of kinship legal guardianship, N.J.S.A. 3B:12A-1(b). Kinship legal guardianship, however, is an option if adoption is not feasible. P.P., supra, 180 N.J. at 513. It is not to be employed as a defense to termination of parental rights. Ibid. N.M.'s foster mother expressed her desire to adopt N.M., even after having the option of kinship legal guardianship explained to her. Hence the statutory standard was readily met.

We have previously said that "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).

"A final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). It is always a grave loss to a child to lose biological parents and it is for that reason "doubts are to be resolved against" disruption of the relationship. Id. at 16. But permanence, stability, and support for emotional growth are also crucial to a child's upbringing and must be taken into consideration. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

The Division proved that L.M., even when offered services and support, could not provide N.M. with the stable and nurturing environment he requires. The Division also established that there were no alternatives to termination, and that termination would not do more harm than good. We therefore agree with the trial judge that the State has met its statutory burden by clear and convincing evidence.

1 The parental rights of R.W., N.M.'s father, were also terminated. He does not appeal.

2 Also referred to as N.M.'s aunt in the record.