OF YOUTH AND FAMILY SERVICES v. S.B. IN THE MATTER OF THE GUARDIANSHIP OF A.N.H. AND F.I.H minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5473-10T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

_______________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.N.H. AND F.I.H., minors.

_______________________________________

April 16, 2012

Argued March 28, 2012 - Decided

Before Judges Fuentes, Graves and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-210-10.

Ryan T. Clark, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Clark, on the brief).

Eric Meehan, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mr. Meehan, on the brief).

Todd Wilson, Designated Counsel, argued the cause for minors A.N.H. and F.I.H. (Joseph E. Krakora, Public Defender, Law Guardian,attorney; Mr. Wilson, on the brief).

PER CURIAM

S.B. is the biological mother of A.H. (fictitiously Anna), born September 27, 2005, and F.H. (fictitiously Frank), born almost a year later on August 13, 2006.1 S.B. appeals the May 31, 2011 order terminating her parental rights to the children. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge Garry Furnari in his oral opinion of May 27, 2011. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).

The Division of Youth and Family Services (Division) has been involved with Anna and Frank since November 2006. The Division received referrals on four occasions between 2006 and April 2009. The referrals alleged that Anna and Frank were being left unattended. On each occasion, the Division found that the allegations were unfounded.

On April 22, 2009, however, S.B. called the Division to request housing assistance. She asserted that she was homeless and that she needed assistance in caring for Anna and Frank. A case file was opened. Following an investigation, which disclosed that S.B. and the children's father, F.H., had no housing and that they had left Anna and Frank without care, the Division conducted an emergency removal of the children. On May 8, 2009, the Division was granted custody of Anna and Frank. The children were placed in a Tri-City contract foster home.

Anna and Frank remained in their initial placement until August 2009. Unfortunately, both children have behavior issues and the foster mother was not able to effectively resolve them. In August 2009, the children were placed together in another home, where they remained until April 20, 2011. At the time of the trial in May 2011, Anna and Frank were living in a new foster home, with their half-brother,2 who had previously been removed from S.B.'s care.

After the emergency removal of the children, the Division's goal was to work with S.B. to effectuate a reunification. Almost immediately, however, S.B. was incarcerated on an assault charge. She remained in jail from June 2009 until January 31, 2010. Upon her release, S.B. did not contact the Division. Nevertheless, the Division still arranged for S.B. to have supervised visits with the children through the Tri-City Corporation and she appeared for most of them. However, S.B. continued to avoid working with the Division outside of the supervised visitation setting and the agency was not able to locate her in the community. Accordingly, S.B. was placed in "missing status."

On March 31, 2010, the trial court granted the Division's motion to relieve it of its obligation to provide reasonable efforts to reunify S.B. with the children. In spite of this order, however, the Division continued to voluntarily offer services to S.B., including parenting skills training, G.E.D. courses, anger management classes, psychological evaluations, and therapeutic services. Supervised visitation continued. The Division also offered to provide assistance to S.B. in finding suitable housing.

On June 30, 2010, the Division filed its guardianship complaint. Service of the complaint was accomplished at a supervised visit because S.B. still refused to make her whereabouts known to the Division. S.B. signed a case plan agreeing to secure housing and employment and to complete an anger management course by August 3, 2010. S.B. successfully completed a Tri-City Behavioral Clinic anger management program. In October 2010, the Division referred S.B. to a parenting skills course at the Wise Women's Parenting Center, but she was terminated from the program after missing three consecutive classes. S.B. was not able to verify that she had secured employment or stable housing. She dropped out of a G.E.D. program after attending only a few classes.

S.B. signed a second case plan. She agreed to move into a new apartment by the middle of December and to complete the parenting skills course. She was able to complete the course, but she continued to have difficulty maintaining stable housing. During this period, S.B. tested positive for marijuana after a court-ordered screening. She was referred to a substance abuse evaluation, but she failed to attend the appointment.

In October 2010, the Division referred S.B. to Barry Katz, PhD, for a psychological and bonding evaluation. Dr. Katz testified at trial and his written report was admitted in evidence. During her interview with Dr. Katz, S.B. stated that she and Anna had been the victims of domestic violence by F.H. However, she continued to leave the children alone with him. She later denied that there had been any violence in the home, that she had any parenting problems, and that her rights to her other children had been involuntarily terminated.

As a result of his testing, Dr. Katz opined that S.B. experienced "chronic feelings of depression," as well as "impaired social functioning, bizarre and paranoid ideation and anxiety." These conditions, in Dr. Katz's opinion, adversely affected S.B.'s parenting ability. She had "extremely limited coping skills combined with strong feelings of depression, impaired interpersonal functioning, instability in housing and work along with a pattern of anti-social behavior." As a result, S.B. easily became overwhelmed and, when this occurred, she "would react in [a] poorly modulated and impulsive manner[, which] could result in behavior impulsivity as well as anger, violence." Dr. Katz testified that S.B. would not benefit from further parenting classes because "the chronic nature of the deficits that she has have not ameliorated for over ten years now."

Dr. Katz also performed a bonding evaluation of S.B., Anna and Frank. Both children "displayed feelings of anger and a lack of respect for [S.B.] as a parental figure. [S.B.] displayed being at a loss as to how to deal with these issues. She responded at times by threatening to reject the children." The children's anger toward S.B., in Dr. Katz's opinion, caused them to behave poorly. He opined that Anna and Frank were experiencing "reactive detachment disorder" and that they would suffer harm if their relationship with S.B. continued. Dr. Katz testified that terminating S.B.'s parental rights was the "only means to alleviate the harm for these children."

The Division also referred S.B. to Alexander Iofin, M.D., for a psychological evaluation. Dr. Iofin prepared a written report and testified at trial. Dr. Iofin agreed with Dr. Katz that S.B. had depression and anxiety problems. He opined that S.B.'s continued denial of these issues made it difficult for her to meet Anna and Frank's needs and presented the risk that she would have a greater "proclivity to get angry, to snap because impulsivity is a part of [her] psychiatric problems." These conditions also contributed to S.B.'s criminal history and to her chronic homelessness and unemployment.

S.B. did not appear on the first day of trial. She did not appear until 10:00 a.m. on the second day. On that date, a Division caseworker testified that Anna and Frank were doing well in their foster home placement and that the current foster mother was committed to adopting them and their half-brother.

Minerva Gabriel, PhD, testified for the defense. She had conducted a psychological assessment and a bonding evaluation of S.B. Based upon this evaluation, Dr. Gabriel concluded that S.B. "had no areas of deficit" and that she understood "what she's supposed to do" regarding parenting Anna and Frank. S.B. had told Dr. Gabriel that she had no mental health or substance abuse problems. Dr. Gabriel was unaware that S.B. had a criminal record. Because S.B. also reported that she had completed an anger management course, Dr. Gabriel did not test S.B.'s ability to cope with anger or to deal with other issues. Dr. Gabriel noted that both Anna and Frank acted out during their bonding evaluation with S.B. Nevertheless, she concluded that the children had a bond with S.B., a conclusion that was based, in large part, upon S.B.'s self-reporting that she had no problem parenting the children.

S.B. also testified. She claimed that she had just started working at a movie theater and that, with rental assistance, she would be able to move into an apartment by the beginning of June 2011. However, she provided no documentation to support these assertions. She continued to deny that her parental rights to her older children had been terminated. She also downplayed the behavior issues Anna and Frank consistently displayed.

Following the two-day bench trial, Judge Furnari rendered a comprehensive oral decision, finding that the Division had satisfied the four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. As a result, he terminated S.B.'s parental rights to Anna and Frank.

S.B. raises the following issues on appeal:

POINT I. THE DIVISION FAILED TO PROVE ALL FOUR PRONGS OF THE BEST INTEREST TEST BY CLEAR AND CONVINCING EVIDENCE.

A. The Division's Argument that S.B. was Unable to Eliminate the Harm to the Children was not Based on a Reasonable or Credible Risk of Harm to Them.

B. There was no Clear and Convincing Evidence that Termination Would not do More Harm Than Good.

POINT II. THE FACTS UPON WHICH THE TRIAL COURT BASED ITS DECISION ARE NOT CREDIBLE AND LED TO AN IMPROPER DECISION THAT MUST BE REVERSED.

The law governing our analysis is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Ill., 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). However, the constitutional protection surrounding family rights is not absolute and may be 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). In some cases, severance of the parent-child relationship may be required to protect the child. E.P., supra, 196 N.J. at 102.

Under N.J.S.A. 30:4C-15.1(a), a court is authorized to terminate parental rights if the Division proves the following by clear and convincing evidence:

(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 [D]ivision 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).]

"These standards 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." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing K.H.O., supra, 161 N.J. at 348). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address[es] the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (citation omitted) (internal quotation marks omitted).

Our scope of review of a trial court's termination of parental rights is limited to "determin[ing] whether a trial court's decision . . . was based on clear and convincing evidence supported by the record before the court." P.P., supra, 180 N.J. at 511. We will not disturb a trial court's factual findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)).

In the present matter, S.B. claims that the trial court erred in terminating her parental rights because the Division failed to satisfy its burden of proof with regard to prongs two and four of the best interests test. We do not agree.

With regard to prong two, Judge Furnari properly found that S.B. was unable to provide a stable home for Anna and Frank and that she had continually failed to address her psychological and anger management issues, thereby endangering the children's welfare. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001), (affirming the termination of the parental rights of a mother whose severe mental illness rendered her incapable of caring for her child), certif. denied, 171 N.J. 44 (2002). S.B.'s refusal to recognize that she has these issues, and her repeated non-compliance with the services offered by the Division, made it impossible for these deficiencies to be ameliorated.

As to prong four, the bonding evaluation performed by Dr. Katz fully supports Judge Furnari's findings that Anna and Frank will not be harmed by the termination of S.B.'s parental rights. Indeed, there was clear and convincing evidence that permitting S.B. to continue to be involved with the children would harm them. Contrary to S.B.'s argument, Judge Furnari fully explained why he found the testimony of the Division's experts to be more persuasive than that offered by the defense. "[W]e rely on the trial court's acceptance of the credibility of the expert's testimony and the court's fact-findings based thereon, noting that the trial court is better positioned to evaluate the [expert] witness' credibility, qualifications, and the weight to be accorded [the] testimony." In re Guardianship of DMH, 161 N.J. 365, 382 (1999) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).

S.B. also argues that the Division was unable to prove that termination would not do more harm than good because no bonding evaluation was conducted of Anna and Frank and their foster parent. This argument is without merit. "In all our guardianship and adoption cases, the child's need for permanency and stability emerges as a central factor." K.H.O., supra, 161 N.J. at 357. We stated in A.R. that we could "envision very few scenarios in which comparative evaluations would not be required" to help the Division sustain its burden of proof under both prongs two and four. N.J. Div. of Youth & Family Servs. v. A.R. 405 N.J. Super. 418, 440 (App. Div. 2009). At the time of trial in this matter, however, the children's current caretaker had not been in that position long enough to establish a bond with the children and, therefore, a comparative bonding evaluation was neither necessary nor required. The court should not wait until a bond is formed with a caretaker to terminate the parental rights of an unfit parent who has not herself formed a nurturing bond with the children.3

We therefore affirm substantially for the reasons stated by Judge Garry Furnari in his oral decision of May 27, 2011.

Affirmed.

1 The children's father, F.H., completed an identified surrender as to both children and, therefore, he did not participate in the guardianship proceedings. S.B. has five other children, none of whom are in her care. Her parental rights to all five children were terminated in prior proceedings.

2 On September 7, 2011, S.B.'s parental rights to this child were terminated in a separate proceeding.

3 We were advised at oral argument that, because of continued behavioral issues, Anna has been placed in a residential group treatment home. Frank remains in the same foster home, although the foster parent has stated that she will not be able to adopt him because of his behavior issues. The Division's goal is now select home adoption for both children.