OF YOUTH AND FAMILY SERVICES v. K.P. IN THE MATTER OF THE GUARDIANSHIP OF Sa.P and Sh.P

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4151-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

K.P.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF Sa.P. and

Sh.P.,

Minors.

__________________________________

April 18, 2012

Submitted: March 14, 2012 - Decided:

Before Judges Cuff, Lihotz and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-97-08.

Joseph E. Krakora, Public Defender, attorney for appellant (Chanima K. Odoms, Pool Attorney, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors Sa.P. and Sh.P. (Caitlin McLaughlin, Designated Counsel, on the brief).

PER CURIAM

K.P., the mother of thirteen-year-old Sa.P. (Steve) and five-year-old Sh.P. (Shea)1 appeals from an order terminating her parental rights to these children.2 K.P. contends that the evidence presented by the Division of Youth and Family Services (DYFS) failed to establish by clear and convincing evidence that she harmed the children, that she could not alleviate harm to the children, and that termination of her parental rights would not do more harm than good.

DYFS responds that it proved by clear and convincing evidence that Steve's and Shea's health, safety and development have been and will continue to be endangered by their mother. DYFS contends that K.P. cannot care for herself and address her personal psychiatric needs let alone address the significant needs of these children. Finally, it argues that termination will not do more harm than good.

The Law Guardian urges that termination of K.P.'s parental rights is in the best interests of the children, and argues that K.P. is not an appropriate caregiver and that a return of these children to her will disrupt the stable environments in which they reside. We affirm.

DYFS has been involved with K.P. and her children since 1991. K.P. is thirty-seven years old. She has been diagnosed with histrionic personality disorder3 and has a history of drug addiction, which included at times daily use of cocaine. Since 1991, K.P. has attempted suicide four times and still acknowledges suicidal ideations. She has had periods of employment as a security guard and counselor for mentally disabled adults but was never able to remain employed on a long-term basis. K.P. has not worked since 2007 and has experienced recurring incidents of homelessness.

Steve is thirteen years old. He has been removed from K.P.'s care or placed by K.P. with friends or relatives at least three times. He has not been in K.P.'s care since August 2007. Physical abuse of Steve by Shea's father and K.P.'s boyfriend was substantiated in March 2007. The August 2007 removal was precipitated by medical neglect by K.P. of both children, failure to comply with Steve's medication regimen and psychiatric treatment, refusal to take Steve for a neurological evaluation, failure to comply with clinical treatment and recommendations for herself, and failure to provide a clean and safe home for the children. Steve has been diagnosed with oppositional defiant disorder and pervasive developmental delays, which eventually led to his placement at Devereux, a residential treatment facility. At Devereux, he was also diagnosed with Asperger's Syndrome. By August 2007, he had experienced four psychiatric hospital admissions. He is currently residing in a therapeutic foster home. Steve's father, who is incarcerated with an expected release date in 2023, sexually abused Steve's older sister B.B. Steve's father surrendered his parental rights in June 2010.

Shea is five years old. She was removed from K.P.'s care when she was nine months old and has resided with her foster parents since that time. Her father committed suicide in January 2008. She currently displays no developmental delays. Steve and Shea visit monthly and enjoy each other's company. Each child regresses emotionally and behaviorally when they visit K.P.

Four psychologists examined K.P. between 2003-2008. Doctors Bernard Loigman, Andrea Lynn Sollitto, Margaret Doherty Delong, and Karen Wells rendered diagnoses of histrionic personality disorder. Her intellectual functioning was considered at the low average level. No substance abuse was noted until 2006 when K.P. was reported to have passed out while B.B. and Steve were visiting. In 2007, she commenced using crack cocaine. During that year, she was charged with various minor criminal offenses and her psychological condition markedly deteriorated. In December 2007, K.P. attempted suicide by taking an overdose of Prozac, one of Steve's medications, with alcohol. This led to a several week psychiatric hospitalization, unemployment, and a period of homelessness. In her March 2008 evaluation of K.P., Dr. Wells continued to render a diagnosis of histrionic personality disorder and dependent personality disorder to which she added borderline personality disorder.

Emblematic of K.P.'s psychological deterioration is the alteration in the prognosis for reunification with her children. In 2003, Dr. Loigman opined that K.P. "appears to possess the ability to parent effectively when she is not distracted or adversely [a]ffected by other problems." However, during Steve's psychiatric hospitalization in July 2007, occasioned by K.P.'s inconsistency with Steve's psychiatric appointments and therapeutic regimen, his care providers opined that K.P.'s "reasoning always focuses on the impact of the drama she surrounds herself with that precludes her from being able to follow through with even basic parental responsibilities." Dr. Wells remarked in March 2008 that K.P.'s "sustained marked pattern of emotional instability and psychological dysfunction" interfered and "markedly hinder[ed] her ability to provide care for herself on an independent basis." (Emphasis added). Accordingly, reunification with Steve and Shea was "clinically contraindicated."

Dr. Wells reiterated her opinion regarding reunification in October 2008, and during her December 2008 trial testimony, Dr. Wells opined that termination would not do more harm than good to either child. She explained her opinion as follows:

Because of the level of need that [Steve], and care, that [Steve] requires, it would be in his best interest to have someone who could consistently and appropriately attend to those needs, as well as understand what those needs are, demonstrate patience in the quality and care, as well as have support to meet those needs.

As far as [Shea], this was a child who fortunately began to thrive once she was removed from [K.P.]'s care. To place her in a situation where she would regress and diminish in that capacity as a result of not really understanding why she was not with caregivers who have become her psychological parents, would be detrimental to her as well.

And so I could not support -- it would be in the children's best interest, that it would cause them significant harm, emotional harm, deterioration in their neurological functioning, relational harm, it just, especially for [Steve], it was just too much to put him in a situation where he would be at risk.4

Dr. Wells also documented reports of behavioral regression by both children following visits with K.P.

Dr. Wells also conducted bonding evaluations between K.P. and the children. She reported that K.P. recognized that each had developmental differences and different needs. She opined that Steve's bond with K.P. was "intact" and Shea was comfortable with K.P. Nevertheless, Dr. Wells also opined that neither child would likely experience a significant or enduring reaction if the court severed K.P.'s parental relationship. She noted that Shea did not consider K.P. a psychological parent.

Moreover, Dr. Wells found that Shea considered her foster parents her psychological parents and was "thriving" in their care. Dr. Wells opined that Shea would deteriorate functionally if removed from their care.

In his oral opinion, Judge Coogan found that the unkempt condition of the home and K.P.'s pervasive inability to care for her children consistently caused harm to them. He found that K.P. cannot eliminate the harm to her children and provide a safe and stable home for them. The judge found that K.P.'s mental status interfered with her own care and prevented her from caring consistently for her children.

Judge Coogan also concluded that DYFS made reasonable efforts to provide services to K.P. to permit reunification of the family. He cited a variety of family preservation services provided to K.P. Finally, the judge accepted the opinion of Dr. Wells that K.P. cannot adequately care for herself without significant assistance. He also found that Shea was thriving in her placement and K.P. had not been able to address Steve's considerable developmental and psychological needs. Therefore, he found that termination of K.P.'s parental rights would not do more harm than good to either child.

"Parents have a constitutionally protected right to maintain a relationship with their children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). However, that right is not absolute, and "must be balanced against the State's parens patriae responsibility to protect the welfare of children." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation and internal quotation marks omitted).

When seeking to terminate parental rights, the State 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-15.1a.]

See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). Application of the four-factor test requires a fact-sensitive approach, and the factors "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, 259 (App. Div. 2005) (emphasis in original)).

"Termination of parental rights permanently cuts off the relationship between children and their biological parents." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, "the cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child[ren] harm." Ibid. "Presumptions of parental unfitness may not be used in [termination] proceedings . . . and all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.

"[T]he family court's decision to terminate parental rights" should not be disturbed "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)). This court should "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 M.M., supra, 189 N.J. at 293). "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." Ibid. (quoting G.L., supra, 191 N.J. at 605).

We have reviewed the record in its entirety. We hold that the findings of fact by Judge Coogan are well-supported by this record. Indeed, the evidence submitted by DYFS clearly and convincingly establishes each prong of the four-prong test to support the termination of K.P.'s parental rights to Steve and Shea.

K.P. has been involved with DYFS since 1991. As demonstrated by the record, K.P. has had great difficulty caring for Steve independently. Prior to his removal from her care in August 2007, there were at least three prior occasions when K.P. placed Steve with friends or relatives or DYFS removed him from her care.

Shea has not been in K.P.'s care since she was nine months old. When removed in August 2007, she demonstrated some delays. Within months, there was no evidence of any delays. One report actually noted advanced development.

The record also demonstrates a continual deterioration in K.P.'s psychological condition and her ability to care for herself and her children. In 2003, Dr. Loigman expressed the opinion that K.P. might have the ability to parent effectively under certain circumstances and with on-going supervision and assistance. By December 2008, Dr. Wells opined that "[t]here are no indications that [K.P.] can consistently and independently meet [her children's] needs," and required significant assistance to attend to her own needs. Moreover, as K.P.'s mental status deteriorated and her ability to care for her own needs declined, the children have been in the care of others for years. Shea considers her foster parents her psychological parents. Both children regress emotionally and behaviorally after visits with K.P. The absence of a foster family ready and willing to adopt Steve is troubling, but there is no evidence that supports reunification with K.P. In fact, Dr. Wells remained resolute in her opinion that K.P. cannot care for her son.

We, therefore, affirm the March 8, 2011 order terminating K.P.'s parental rights.

1 We have elected to use pseudonyms in place of initials for the children.

2 K.P. is the mother of two other children not parties to this appeal. B.B., now an adult, was removed from K.P.'s care in 2002 after substantiation of sexual abuse allegations by K.P.'s boyfriend. K.P. surrendered her parental rights to S.P. when the child was an infant.

3 Some physicians have also diagnosed her as bipolar.

4 Initially, Steve's paternal grandparents planned to adopt him. When they were no longer able to do so, all parties moved to reopen the record. Dr. Wells continued to recommend termination of parental rights, although the record contains only summaries of her letters. No party disputed the summaries offered by the Deputy Attorney General, which related Dr. Wells' continued opposition to reunification.