DIVISION OF YOUTH AND FAMILY SERVICES v. M.A.D.C. and R.E.C IN THE MATTER OF THE GUARDIANSHIP OF C.M.C a Minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4260-10T3

A-4373-10T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.A.D.C. and R.E.C.,

Defendants-Appellants.

______________________________________

IN THE MATTER OF THE GUARDIANSHIP OF

C.M.C.,

a Minor.

_______________________________________

March 22, 2012

 

Argued February 14, 2012 - Decided

 

Before Judges Parrillo, Skillman and Hoffman.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-128-10.

 

Michael C. Wroblewski, Designated Counsel, argued the cause for appellant M.A.D.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Wroblewski, on the brief).

 

Cary L. Winslow, Designated Counsel, argued the cause for appellant R.E.C. (Joseph E. Krakora, Public Defender, attorney; Mr. Winslow, on the brief).

 

Jennifer A. Lochel, Deputy Attorney General, argued the cause for respondent State of New Jersey (Jeffrey S. Chiesa,attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).

 

Jeffrey R. Jablonski, Designated Counsel, argued the cause for minor C.M.C. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Jablonski, on the brief).

PER CURIAM

These are consolidated appeals from a final judgment terminating defendants' parental rights to their minor child, C.C., born April 7, 2009. M.D.C. is the natural mother of C.C. and R.E.C. her natural father.1 Following a three-day trial, Judge Angelo DiCamillo issued a written decision on March 15, 2011, and entered a judgment of guardianship terminating defendants' parental rights the following day.

Following careful review of the trial record, we discern no basis to disturb the trial judge's decision. Judge DiCamillo's opinion addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law. In reaching his conclusions, the trial judge appropriately applied the controlling legal principles to the lay and expert evidence of record. Defendants' claims to the contrary are without merit. R. 2:11-3(e)(1)(E).

We affirm for the reasons set forth in Judge DiCamillo's comprehensive written opinion. We add the following comments.

I.

 

 

In addition to C.C., defendants had one other child together, B.C., who was born on October 2, 2006. Their parental rights to B.C. were terminated on June 6, 2008, following a trial, primarily due to defendants' failure to maintain stable housing.2 The Division of Youth and Family Services (DYFS) also sought to terminate M.D.C.'s parental rights to her older daughter, J.D., who was born on June 5, 2005.3 At the conclusion of the trial regarding B.C., M.D.C. consented to the termination of her parental rights to J.D. in favor of her maternal grandparents for the purpose of adoption.

M.D.C. gave birth to C.C., at 35.4 weeks gestation, on April 7, 2009. Shortly after birth, C.C. was diagnosed with "short gut syndrome," a potentially life-threatening intestinal disorder, secondary to gastroschisis.4

On April 9, 2009, in light of defendants' prior DYFS history, the hospital contacted DYFS about C.C.'s condition. On April 14, 2009, C.C. was transferred to Cooper Hospital in Camden to undergo emergency surgery. On April 15, 2009, the hospital noted that M.D.C. was unavailable to authorize certain emergency treatment for C.C. Two days later, DYFS sought and was granted temporary custody, care, and supervision of C.C.

During the first five months of her life, C.C. underwent fifteen surgical procedures to treat her condition, and numerous tests and scans. By September, it was determined that C.C.'s condition necessitated a transfer to a hospital capable of completing a bowel, intestine, and liver transplant. The closest hospital capable of completing these procedures was Children's Hospital of Pittsburgh (CHOP), approximately a six-hour drive from defendants' home. With the consent of DYFS and defendants, C.C. was transferred to CHOP on September 25, 2009.

At trial, defendants both testified that upon C.C.'s transfer to Pittsburgh, they visited her on a weekly basis until December 2009. Defendants failed to provide any evidence to support this contention, with the exception of one photograph allegedly taken at CHOP in October 2009. The judge found both defendants not to be credible witnesses, describing their testimony as "inconsistent [and] unconvincing." There is no dispute that defendants failed to visit C.C. after December 2009. They attributed this failure to a combination of financial, health, and employment issues.

Joseph Moore, a DYFS caseworker assigned to the family for the first year of C.C.'s life, testified that defendants never told him they could not afford to visit C.C. in Pittsburgh. In addition, there was no evidence of defendants ever alerting the court to this issue at any pretrial proceeding.

C.C. received treatment at CHOP until December 29, 2009, when she was transferred to The Children's Institute in Monaca, outside of Pittsburgh. The Children's Institute provides rehabilitation services to children who are sufficiently healthy to permit discharge from CHOP, but are not healthy enough to function in a home environment.

Although CHOP concluded that C.C.'s condition required placement on the intestinal transplant list, such placement could not occur until DYFS identified a family willing and able to meet C.C.'s extensive medical needs. In a letter to DYFS, CHOP outlined the following requirements:

Pre-Transplant: [C.C.] needs to be placed with a family that is within 45 minutes of Children's Hospital. They must be fully trained through Children's Hospital of Pittsburgh to meet [C.C.]'s extensive medical needs, participate in a psychological evaluation, and be available to transport her to the hospital when organs are located. In addition, the family must be observed numerous times by hospital staff providing direct care of [C.C.]'s special medical needs.

 

Post-Transplant: [C.C.] needs to be placed with a family that is fully trained to meet her extensive medical needs, needs that are much more extensive after the transplant. They must be committed to meeting the needs of this child for at least two years. The family does not need to be within 45 minutes of the hospital but ready and willing to bring her to the hospital for all post-operative visits, scopes, medication checks, etc., etc. They will also need to bring her immediately to Children's Hospital should an emergency occur.

 

Given the above requirements, extensive training was obviously required before defendants or any family could provide an appropriate home for C.C. To that end, DYFS worked with CHOP to schedule defendants to undergo training in Pittsburgh during the week of April 19, 2010. In an April 9, 2010 letter to defendants, DYFS outlined defendants' week of training:

You are expected to be at the Children['s] Institute . . . 24 hr/day the entire week. You will participate in all care throughout the day and attend every therapy session that [C.C.] has . . . . At least one parent will be required to stay overnight and perform her overnight care as well. Your first day is scheduled to review [C.C.]'s care and be show[n] how to care for [C.C.]. You then will be expected to perform care with supervision. By the end of the week you should be able to initiate care when it needs to be completed.

Despite the considerable efforts of the DYFS caseworker, who made arrangements for defendants' transportation and housing, defendants failed to attend the training session. Although defendants indicated they wanted another opportunity to complete the training, they failed to take necessary steps to reschedule. By the time of trial, defendants had visited C.C. only once in the preceding fourteen months, and that was for a bonding evaluation in December 2010.5

Through a program administered by The Children's Institute, and after a thorough family profile review, DYFS selected F.M. and F.F.6 as C.C.'s placement family in the event defendants were unable or unwilling to meet C.C.'s medical needs. F.M. and F.F. met C.C. for the first time on February 27, 2010, and over the next several weeks, introduced her to their five children and visited frequently at The Children's Institute. These visits allowed for bonding with C.C., participation in her therapy sessions, and instruction on caring for all of C.C.'s medical needs. The foster parents competently completed all of the requisite training at The Children's Institute as well as intestinal transplant training and a psychological evaluation at CHOP. (This was the same training that defendants failed to attend.) Upon defendants' failure to appear for their scheduled training, DYFS decided to place C.C. with F.M. and F.F. On April 29, 2010, The Children's Institute discharged C.C. to their care.

C.C. requires a high level of care and attention from her foster parents. For instance, according to a DYFS case report dated December 3, 2010,

every three hours [C.C.] receives 150ml of Elecare formula via a syringe in her feeding tube. . . . At bedtime, [C.C.] is connected to a continuous pump via her feeding tube and she is receiving a slow drip of 50ml of her formula from 9pm-9am every night. . . . The caretakers have their alarm set to check on her numerous times throughout the night every night to make sure everything is in working order and there are no kinks in her tubing.

 

C.C. receives occupational, physical, speech, and developmental therapies in home, and feeding therapy outside the home. She still has a feeding tube but is now able to receive much of her daily nutrition by mouth.

Because of the placement with the current foster parents, C.C.'s name was able to be placed on the transplant list at CHOP with a level two status, meaning that while she is moving up on the list, CHOP is not actively looking for an organ for her. If, however, her condition were to deteriorate, her status would be elevated to level one.

On November 11, 2010, M.D.C. and R.E.C. underwent psychological evaluations conducted by Dr. Vivianne Rodriguez-Silverstein, Ph.D. Dr. Rodriguez-Silverstein was the only expert to testify at trial. With regard to her evaluation of M.D.C., Dr. Rodriguez-Silverstein noted:

[M.D.C.] . . . misrepresents and exaggerates her involvement in the early care of her daughter [C.C.]. Reports from Cooper Hospital staff, Children's Hospital of Pittsburgh staff, and Project Star of Pittsburg[h], as well as from different social workers from [DYFS], all contradict [M.D.C.]'s . . . recollection of how often they visited.

 

. . . .

 

. . . The documents regarding the two older daughters' cases indicate many instances of serious neglect, including lack of pre-natal care, inability to follow routine medical car[e] and even difficulties in every day parenting activities involving feeding and toileting care.

 

. . . .

 

The results obtained in this evaluation are consistent with those obtained by the two psychologists who had previously evaluated her. It is the opinion of all three psychologists, including this one, that [M.D.C.] shows considerable behavioral difficulties which interfere with her ability to parent even a normally developing and healthy child and much more a child with significant health problems and some developmental delays.

 

. . . .

 

[M.D.C.]'s lack of [honesty] or at [least] her overrepresentation and inaccurate reports and perceptions of the events and situation which have resulted in the removal of all three of her daughters from her custody, indicates that she cannot be trusted to accurately report and comply with the care and treatment her daughter [C.C.] needs. In addition due to her lack of trust in others and her non-compliance with court orders, treatments and schedules [M.D.C.] does not show the ability to be able to follow through and maintain the appointments and complex relationships needed in the care of [C.C.].

 

With regard to her evaluation of R.E.C., Dr. Rodriguez-Silverstein concluded, "[g]iven [R.E.C.]'s documented past behavior and his lack of acceptance of any responsibility in what has happened to him regarding the custody and care of the children, [R.E.C.] does not appear to be capable of taking proper care, or to appropriately parent a healthy, developmental[ly] normal child, [much] less of a very medically involved and developmentally delayed one such as [C.C.]."

Of particular note, Dr. Rodriguez-Silverstein testified that R.E.C. struggled with impulse control. She observed that during his evaluation, R.E.C. often "responded in a way that, at times . . . was hostile [and] almost could be taken as threatening. And certainly not appropriate to the evaluation." When asked why impulse control is important, Dr. Rodriguez-Silverstein responded:

Because children really push your buttons. And caring for a child is a very stressful job, very difficult. And this child in particular has lots of needs. Lots of physical needs, lots of psychological needs, she requires considerable care.

 

And all that enhances the normal stresses of parenting, and can generate certainly lots of frustration. I am concerned also -- that concern with the impulse control and the verbally aggressive at times responses of [R.E.C.], with what is in the documents, the complaint for guardianship, regarding the involvement of [R.E.C.] with his two children from another relationship, and the fact that one of the issues was the children were removed, had to do with [R.E.C.] being a very harsh disciplinarian to the children.

 

Dr. Rodriguez-Silverstein also completed bonding evaluations of C.C. with both her natural parents and her foster parents. As to the bonding evaluation with defendants, Dr. Rodriguez-Silverstein observed that C.C. "did not show comfort or particular attachment to them." She testified, "[C.C.] responded to them the same way she responds to me." In contrast, Dr. Rodriguez-Silverstein testified that C.C.'s bonding evaluation with her foster parents demonstrated a "very strong bond," evidencing a "secure attachment." She further found the foster parents to be C.C.'s psychological parents.

Based upon her evaluations, and all of the reports and records she reviewed, Dr. Rodriguez-Silverstein concluded that

[defendants] would not be able to meet the complex medical and even psychological needs [C.C.] has. It is this psychologist['s] opinion, provided within a reasonable degree of psychological certainty, that removing this child from her current home and placing her in the care of her birth parents . . . would place her at risk not only of psychological problems but of very serious and even life threatening medical problems. . . . It is also important to remember that [C.C.] has a chronic condition and will require medical and possibly other kinds of support and care for the rest of her life. Her care requires competent and responsible parents who are constantly supervising and assessing her needs and condition. . . .

 

The biological parents have shown evidence of [being] unable to handle the demands of their own schedule and needs and have not shown that they are capable of handling those of a child like [C.C.].

 

C.C. remains in the care of F.M. and F.F., who desire to adopt her.

II.

 

 

A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). "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." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

The "best interests of the child" standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Ibid. This statute provides that DYFS shall petition the court for termination of parental rights if the following four standards are met:

(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.

 

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

"The four criteria enumerated in the best interest standard 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. Because "determinations of parental fitness are 'extremely fact sensitive,'" ibid. (quoting L.A.S., supra, 134 N.J. at 139), such considerations "require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348.

"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (citation and internal quotation marks omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).

 

III.

 

 

The first prong of the best interests test requires that DYFS demonstrate harm to the child. K.H.O., supra, 161 N.J. at 348. Although a single harm may suffice, the focus is on the cumulative effect of harm over time. Ibid. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period is a cognizable harm under the best interests standard. Id. at 356. DYFS must show "a pattern of parental inaction and neglect, amounting to unfitness." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007).

With regard to this prong, the trial court noted:

It has been held that under the best interest of the child standard a parent's withdrawal of parental solicitude, nurture, and care of an extended period of time is itself a harm that endangers the health and development of the child. A parent "who never sees his child or never makes efforts to be a part of a child's life sufficient to cause the child to view the person as a parent, causes harm to the child." In re [A]doption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring).

 

[Defendants] here have failed to provide a reasonable explanation for their failure to visit [C.C.] in Pittsburgh. [M.D.C.] said she had some financial problems, but cannot explain why she could not visit for over a year. The court finds that the Division had provided [defendants] with ample resources to take the trip to visit the child, and [defendants] have willfully and of their own volition failed to attend. This failure in itself constitutes substantial harm to the child which this court finds endangers the child's health and development.

 

The judge also considered C.C.'s extensive medical needs, and determined that "[i]t would be dangerous to place [C.C.] in the care of [defendants] due to the fact that they do not reside within the requisite 45 minute commute" to CHOP, and had repeatedly refused to relocate.

Defendants essentially argue that their lack of financial resources, along with the fact that Pittsburgh is six hours from their home, fully explains, and should excuse, their lack of involvement with C.C. since September 2009. Defendants further contend DYFS should have done more to help them remain involved with their daughter.

To support their position that their absence from C.C.'s life, by itself, was not sufficient to satisfy the first prong of the best interests test, defendants rely on N.J. Div. of Youth & Family Servs. v. I.S. 202 N.J. 145 (2010). In I.S., the Supreme Court found that an eight-month delay in the child's father offering himself as a caregiver was not sufficient to satisfy this prong. Id. at 170. By the time the father assumed his parenting role, the child was sixteen months old. The court noted that "in order to justify a termination of parental rights, something more than the delay presented here is required." Id. at 171.

Defendants' reliance on I.S. is misplaced. Unlike the child in I.S., C.C. has a life-threatening condition with corresponding medical needs. C.C.'s special circumstances required defendants to step forward and demonstrate their willingness and ability to adequately fulfill their duties as parents. Defendants failed to do so. Defendants did not visit C.C. in the hospital, despite being apprised of her extremely severe condition. Further, they failed to attend a vital training session intended to educate them on how to care for their child. C.C. could not be discharged to defendants' care, or anyone's care, without completion of this training program. After missing the program, defendants failed to avail themselves of an additional opportunity to be trained to provide the care that is critical to C.C.'s health and wellbeing.

C.C. could not be placed on the transplant list at CHOP until a family willing and able to meet C.C.'s medical needs was identified. Defendants' failure to complete the training and establish that they were ready, willing, and able to shoulder the responsibility for C.C.'s pre- and post-surgery care thus caused a delay in C.C.'s placement on the transplant list, endangering her life and health.

Further evidence of harm to C.C. as a result of defendants' absence came from Dr. Rodriguez-Silverstein, who explained that C.C. was noted to have significant attachment issues before her placement with her foster parents:

Because she had been hospitalized all of her life, she had been treated and handled by many different people . . . and other professionals noted that she wasn't responsive to people in a way a child her age would be, and that she, when held, she wouldn't attach herself, she wouldn't cuddle like normal children do when they're held, and so on.

The record contains clear and convincing evidence to support the trial court's finding that the first prong of the best interests test was satisfied.

The second prong of the test addresses the parent's unwillingness and inability to eliminate the circumstances causing harm to the child. N.J.S.A. 30:4C-15.1(a)(2). Because of C.C.'s ongoing medical needs, C.C.'s health and life will continue to be endangered by the parental relationship until such time as she is adopted by her foster parents. The testimony of Dr. Rodriguez-Silverstein, and defendants' own past history, strongly support the conclusion that defendants' behavioral problems render them unable to eliminate the harm facing C.C. To the extent they have any ability to eliminate the harm, they have proven themselves unwilling to do so.

Further, the bonding evaluations clearly establish that C.C. has a very strong bond and secure attachment to her foster parents, who have become her psychological parents. To separate C.C. from her foster parents would likely cause serious permanent harm to the child. Thus, the second prong of the best interests test was satisfied by clear and convincing evidence.

The third prong of the test requires that DYFS make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Defendants contend that DYFS failed to make such reasonable efforts. To the contrary, defendants received, as noted by Judge DiCamillo, "an array of services provided by the Division." Defendants' participation in services was inconsistent and sporadic. Every evaluation ordered psychological, psychiatric, bonding, and substance abuse required multiple rescheduling. DYFS assisted defendants by arranging for individual and couples counseling, and parenting classes. DYFS also facilitated communication between defendants and various medical facilities, and made all the necessary arrangements for defendants to receive the critical medical training required to care for C.C.

There was clear and convincing evidence to support the finding that DYFS made reasonable efforts to help defendants correct their circumstances.

As to the final prong of the test, the evidence heavily weighs in favor of the conclusion that termination will not do more harm than good. As Judge DiCamillo concluded:

[C.C.] has never lived with her biological parents, and the only home that she has ever known consisted of living with the foster parents in Alleghany County[,] Pennsylvania. . . . [T]he biological parents are not equipped to take care of the child that requires such substantial medical attention as [C.C.].

Therefore, removing [C.C.] from her foster family will not only cause her severe psychological distress, the physical manifestation of which will most certainly deteriorate her fragile health, but, also would place [C.C.] in severe peril of having her medical needs completely ignored by irresponsible and careless parents.

T

he evidence clearly established that severing C.C.'s relationship with her foster parents would cause her serious and enduring harm. Additionally, F.M. and F.F. intend to adopt C.C. The evidence also established that C.C. has no strong attachment to defendants and she would not suffer serious and enduring harm if her relationship with defendants was severed. The fourth prong was firmly established.

Affirmed.

1 For ease of reference in this opinion, the child is referred to as C.C., the natural mother as M.D.C., and the natural father as R.E.C.

2 Defendants appealed this termination. On December 9, 2009, we reversed and remanded for further proceedings. A retrial was completed on June 27, 2011 and defendants' parental rights to B.C. were again terminated. Another appeal followed and remains pending.

3 R.E.C. is not the biological father of J.D. and therefore, his parental rights as to her were not implicated. R.E.C. had other extensive involvement with DYFS dating back to 1984 with his three other children. This involvement resulted in substantiation of allegations regarding physical abuse, extreme corporal punishment, and sexual assault.

4 Gastroschisis is a birth defect in which an infant's intestines protrude from the body through a defect in the umbilical cord.

5 At trial, both defendants attributed their failure to visit C.C. to their poor financial condition. This contention was undermined by the fact defendants began receiving $2,500 per month from a car accident settlement in December 2010.

6 These initials are fictitious, representing the foster mother and foster father.