OF YOUTH AND FAMILY SERVICES v. T.T.M IN THE MATTER OF THE GUARDIANSHIP OF K.I.M a minor

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RECORD IMPOUNDED


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION


SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3454-10T1


NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,


Plaintiff-Respondent,


v.


T.T.M.,


Defendant-Appellant.

__________________________________


IN THE MATTER OF THE

GUARDIANSHIP OF K.I.M., a minor.

__________________________________________________

March 9, 2012


Submitted January 31, 2012 - Decided


Before Judges Messano and Espinosa.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0136-09.


Joseph E. Krakora, Public Defender, attorney for appellant T.M. (Douglas M. Greene, Designated Counsel, on the brief).


Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Patricia L. Parker, Deputy Attorney General, on the brief).


Joseph E. Krakora, Public Defender, Law Guardian, attorney for K.I.M. (Paul M. Klein, Designated Counsel, on the brief).


PER CURIAM

Defendant, T.T.M., appeals from the December 15, 2010 order of the Family Part that terminated her parental rights to her daughter, Kim.1 Defendant presents the following arguments on appeal:

I. THE TRIAL COURT'S DETERMINATION THAT THE DIVISION SATISFIED ALL FOUR PRONGS OF THE STATE STATUTE BY CLEAR AND CONVINCING PROOFS IS NOT SUPPORTED BY THE RECORD


A. DYFS DID NOT MEET ITS BURDEN OF PROOF UNDER THE THIRD PRONG OF THE STATUTE

I. THE COURT SHOULD INTERPRET THE DEFINITION OF REASONABLE EFFORTS UNDER N.J.S.A. 30:4C-15.1(c) TO INCLUDE HELPING COGNITIVELY LIMITED DEFENDANTS COMPLETE HOUSING APPLICATIONS


II. DYFS FAILED TO PROVIDE REASONABLE SERVICES SINCE THEY DID NOT FOLLOW DR. IOFIN'S RECOMMENDATIONS


We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Defendant was eighteen-years old when she gave birth to Kim in March 2007. At the time, she was living in a foster home operated by Tri-City Peoples Corporation. Defendant had been under the care and custody of the Division of Youth and Family Services (DYFS or the Division) since she was approximately one-year old and had resided in various foster homes.

Prior to Kim's birth, DYFS considered, but rejected, plans to house defendant and her daughter together in the same foster home. Dr. Lawrence DeMilio conducted a psychological evaluation of defendant on August 19, 2006. He concluded defendant demonstrated "multiple deficit areas[,]" including Oppositional Defiant Disorder, possible borderline IQ and poor maturation. Noting defendant's "current functional level [wa]s quite immature [and] passive[,]" DeMilio determined that defendant lacked the "necessary skills" to live independently, and individual psychotherapy and medication were unlikely to help.

Drs. Danielle Wiesen and Marc Gironda psychologically evaluated defendant on December 13, 2006 in anticipation of her placement "in a group home for mothers and infants." Wiesen and Gironda concluded defendant displayed "significant cognitive deficits" and "require[d] a life coach to review important daily living information[,]" as well as "individualized instruction on the birth process" and newborn care. They further warned that defendant's behavior and "intellectually deficient cognitive skills" put her at a higher risk of committing child abuse.

Defendant agreed to a separate foster home placement for her daughter after birth, telling DYFS that she did "not feel capable of raising her child." At trial, Angel Ward, the Division's case worker, testified that DYFS initially offered defendant the option of living with Kim at the "Mommy and Me" program. However, defendant rejected that offer because she preferred to remain in her current foster home, even if Kim was not with her.

After Kim's birth, defendant told hospital workers that she had no involvement with DYFS, and, despite the Division's prior instruction, the hospital released Kim to defendant. On March 30, 2007, DYFS conducted an emergency removal and placed Kim in a separate foster home. On May 31, while represented by counsel, defendant stipulated to a finding of abuse and neglect.

Dr. Gerard A. Figurelli conducted a psychological evaluation of defendant on June 15, 2007 at the request of defense counsel. Although he noted that defendant was "motivated to assume a parenting role[,]" Figurelli advised that she needed "ongoing, closely supervised, individualized parenting education . . . to help her to acquire and learn" parenting skills.

Dr. Minerva Gabriel psychologically evaluated defendant on July 25, at the Division's request. Gabriel concluded that defendant had "severe emotional problem[s]," was immature and displayed "poor impulse control." Gabriel advised against placing defendant and Kim together even in a "structured setting with supervision."

Additional psychological evaluations conducted throughout 2008 revealed similar findings and conclusions. In July 2008, for example, Dr. Barry Katz concluded that defendant suffered from a "severe mood disorder[,]" likely bipolar disorder, which prevented her from "effectively control[ling] her impulses[.]" Katz further opined that defendant's "cognitive limitations, poor impulse control, impaired judgment, lack of stress tolerance and distortions in thoughts and perceptions indicate that she is still not capable of parenting a child, even in a supervised setting."

Ward testified at trial that sometime in early 2008, DYFS placed defendant in another foster home because the prior home was "being closed." Several attempted placements at different foster homes were all unsuccessful because DYFS received complaints about defendant's lack of hygiene and refusal to comply with rules. In one instance, defendant was removed from a foster placement after chasing her caretaker down the street with a broomstick. DYFS attempted to place defendant at Covenant House, but she refused to stay "because she did not want to comply with their rules." Ultimately, Ward testified that because no other foster home "would take her[,]" DYFS provided defendant with a list of shelters.

The judge initially rejected the Division's plan to terminate defendant's parental rights during a series of permanency hearings held in 2008. She did, however, permit DYFS to supplement the record with additional psychological reports. To that end, Dr. Alexander Iofin interviewed defendant and concluded she suffered from cognitive limitations and several psychiatric disorders, including anxiety and bipolar disorder, all of which required therapeutic and pharmacological treatments. Iofin concluded that whether these treatments could be effective would not be known for years. He opined that defendant's capacity to parent was "very limited[,]" noting further that her ability to parent in the future was "pretty grim" in light of her chronic conditions and cognitive limitations.

Iofin's report recommended continued, "preferably life-long," mental health care for defendant that included "psychotherapeutic as well as psychopharmacological treatment modalities." Iofin believed defendant's "treatment should be bolstered with random screens that should include blood levels of her medication[.]" Iofin recommended that defendant have follow-up assessments "in a period of four to six months[.]" Somewhat critical of prior assessments and treatment rendered to defendant, Iofin opined that "[u]ntil she is in proper treatment for a reasonably long period of time, she cannot be reassessed to find out her overall functioning . . . ."

Ultimately, on December 12, 2008, the judge approved the Division's termination plan, concluding that defendant could not adequately parent [Kim] due to her mental illness. On February 10, 2009, DYFS filed its guardianship complaint. The trial took place during several days between June 21 and November 8, 2010.

Dr. Mark Singer, a psychologist, testified as an expert at trial. Singer evaluated defendant and conducted a bonding evaluation with defendant and Kim, and with Kim and her foster mother. Singer concluded that defendant lacked resources, specifically emotional resources, now and in the foreseeable future, to provide Kim with a safe and permanent home or serve as a viable parenting option.

Although defendant's verbal behavior during the bonding evaluation was appropriate, Singer noted areas of concern. Defendant left Kim unattended on a couch when she had to use the bathroom and became "agitated" when Kim, answering defendant's question, stated that defendant was not her mother. Singer concluded "that [Kim] had [not] come to see [defendant] as being a significant consistent parental figure." Conversely, Kim had "come to see her foster mom as being her significant parental figure." Although Singer believed Kim would react negatively if defendant's parental rights were terminated, that reaction would not prove "significant and enduring in nature." However, severance of the bond between Kim and her foster mother would likely be enduring in nature and defendant could not mitigate that harm.

Iofin testified that defendant's psychological condition remained the same between his 2008 evaluation and an evaluation he conducted in 2010. Iofin noted that between evaluations, defendant was referred to group therapy at East Orange General Hospital but could not be properly evaluated because she was non-compliant. Iofin further observed that defendant had a history of non-compliance with services and concluded that given defendant's significant cognitive impairments, improvement was unlikely.

Ward was defendant's caseworker for eighteen months beginning December 2007. She testified as to the services DYFS provided to defendant, but she could not recall what, if any, referrals DYFS made after it received Iofin's report in 2008.

DYFS case worker Ashley Mistilla also testified that she was assigned to defendant's case in January 2009. Although she acknowledged that she did not refer defendant to anger management, parenting/life skills education, or Division of Developmental Disabilities (DDD) programs, she noted that defendant had previously received parental skills training with the Isaiah House. When DYFS first received Iofin's 2008 evaluation and recommendations, it referred defendant to East Orange General Hospital and provided the hospital with several of her evaluations. The program offered various classes on "medication education, coping skills, anger management, and things of that nature," but defendant failed to complete the program and was terminated. Mistilla acknowledged that when the Division received Iofin's 2010 follow-up report, it made no new referrals.

Natasha McClain became defendant's caseworker in July 2009, when defendant had given birth to another child.2 She acknowledged she had not considered mental health agencies, other than DDD and programs sponsored by the Division of Vocational Rehabilitation, to assist defendant.

The trial testimony of these caseworkers reveals that DYFS had provided defendant with a variety of services in addition to those already referenced. Defendant received individual counseling. She was referred to a program dedicated to teaching life skills, but her enrollment was terminated after she missed too many sessions. Defendant's enrollment at a variety of other programs was terminated because of lack of attendance or her "immature attitude, limited insight into [her] illness and low motivation to work on her issues from a therapeutic perspective." Defendant's attendance at scheduled visitation was sporadic, and, although DYFS arranged for her visits with Kim at her foster placements, defendant "harass[ed] the caretakers, . . . call[ed] them constantly . . . [and came] any time she felt like it."

Defendant did not present any witnesses, nor testify on her own behalf.

In an extensive written opinion issued December 6, 2010, the judge concluded that DYFS had proven by clear and convincing evidence that terminating defendant's parental rights was in Kim's best interests. She entered the order under review on December 15, and this appeal followed.

II.

"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). We accord particular deference to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).

When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:

(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) [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 In re Guardianship of K.H.O., 161 N.J. 337, 347-48, 362 (1999).]


These four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (internal quotation marks omitted)).

Defendant only challenges the judge's conclusions regarding prong three of the statutory test. She acknowledges that DYFS provided her with numerous services, but argues the judge erred by engaging in a quantitative, not qualitative, analysis to determine if those efforts were reasonable. Specifically, defendant contends that because of her developmental disabilities, DYFS was required to do more to secure stable housing and coordinate her psychiatric treatments and efforts to obtain employment and housing. Defendant also argues that DYFS failed to follow Iofin's 2008 recommendations.

In her written opinion, the judge noted that although the Division's efforts were not specifically tailored toward defendant's "emotional and psychological deficits[,]" the "credible testimony" demonstrated DYFS tried to assist defendant regarding her housing needs. The judge noted the Division workers called shelters, provided defendant with housing applications and referred her to the Temporary Rental Assistance Program. The judge cited extensively to defendant's failure to attend or comply with the recommendations of various programs to which she was referred.

The judge noted that following various psychological evaluations, DYFS referred defendant for additional therapy, but she did not attend or otherwise failed to comply with the programs. The judge further noted that although there was some dispute as to whether the program DYFS referred defendant to at East Orange Hospital strictly complied with Iofin's recommendations, defendant refused to participate. The judge cited Iofin's opinion that even with years of therapy defendant was unlikely to be able to parent Kim.

N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281.

A court must consider whether a parent actively participated in the reunification effort. SeeIn re Guardianship of D.M.H., 161 N.J. 365, 390 (1999). The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of [DYFS's] efforts does not foreclose a finding that [DYFS] met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J.at 393), certif. denied, 192 N.J. 68 (2007).

We agree with the trial judge's conclusion that DYFS met its burden of proof regarding prong three. Although defendant presents several arguments as to how services may have been better tailored to her special needs, the statute requires that DYFS make "reasonable" efforts. N.J.A.C.10:133-1.3 provides:

"Reasonable efforts" means the provision of services to the family that are individually assessed to be relevant to the case goal, coordinated with other services, available and accessible and that have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or another permanent arrangement.3


There is no doubt that DYFS frequently tried to assist defendant and that defendant frequently thwarted the Division's efforts. When measured against all the services provided to defendant, the Division's failure to help her complete an application for housing, or its referral of defendant to counseling that did not strictly comply with Iofin's recommendations, did not make DYFS's efforts any less reasonable.

Affirmed.

1 We have fictionalized the name of the child. The order also terminated the parental rights of A.S., Kim's father. He has not filed an appeal.

2 That child was removed from defendant's custody and was not the subject of these proceedings.

3 We realize that in her decision, the judge cited to a prior, different version of the regulation.