NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. Y.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2179-11T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

Y.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF Z.M., a minor.

________________________________________________________________

January 10, 2013

 

Submitted November 26, 2012 - Decided

 

Before Judges Graves and Espinosa.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-68-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Toni Lynn Imperiale, Deputy Attorney General, on the brief).

 

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

 

PER CURIAM

Defendant Y.M. is the biological mother of Z.M. (Zach),2 who was born prematurely on November 27, 2009. He weighed five pounds, spent three weeks in the neonatal intensive care unit for respiratory issues, and was later diagnosed with fetal alcohol syndrome. Zach's biological father, C.G., voluntarily surrendered his parental rights in November 2011. Defendant appeals from an order that terminated her parental rights to Zach.

Termination of parental rights is warranted when the Division of Youth and Family Services (DYFS or the Division) establishes by clear and convincing evidence that:

(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); N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 168 (2010).]

Defendant argues that the Division failed to present clear and convincing evidence of prongs one, two, and four of the best interest test. In addition, although she does not contend that the Division failed to make reasonable efforts to provide appropriate services to her, she argues that the Division did not establish prong three by clear and convincing evidence because it failed to consider alternatives to the termination of her parental rights.

 

 

A trial court's decision to terminate parental rights is subject to limited appellate review. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If supported by "adequate, substantial, and credible evidence in the record[,]" the trial court's findings of fact are entitled to deference. Ibid.; see also Cesare v. Cesare, 154 N.J. 394, 413 (1998) ("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding.") The family court's decision to terminate parental rights will 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).

Judge George E. Sabbath carefully considered the criteria established in N.J.S.A. 30:4C-15.1(a) and cited adequate, substantial evidence in the record in an oral opinion to support his conclusion that each of the prongs had been proven by clear and convincing evidence. We affirm substantially for the reasons articulated in the trial court's opinion and summarize only the salient facts relevant to our analysis.

This case originated with a referral to the Division by a social worker at the hospital where Zach was born. The social worker reported that hospital staff had been concerned because defendant smelled like alcohol in the delivery room and admitted she drank alcohol while pregnant with Zach. As noted, Zach was later diagnosed with fetal alcohol syndrome.

DYFS workers thereafter interviewed and met with defendant both in the hospital and at her home. Defendant was uncooperative and hostile, stating that "she would not do anything in the manner the Division wanted."

From the time of Zach's birth on November 27, 2009, until his emergency removal on March 30, 2010, defendant was referred to a substance abuse evaluation and counseling, ordered to participate in parenting services and counseling, and was provided with homemaker services. She tested positive for alcohol and/or drugs on several occasions during this four-month period. She tested positive for marijuana and amphetamines on January 15, 2010 and tested positive for alcohol on January 23, 2010. On March 25, 2010, defendant arrived at her substance abuse program with Zach and under the influence of alcohol. She submitted to a breathalyzer test, which revealed that her blood alcohol content was 0.03%. As a result, on March 30, 2010, DYFS conducted an emergency removal pursuant to N.J.S.A. 9:6-8.29.

Defendant was admitted to Straight and Narrow's Mommy & Me Program on April 7, 2010. Defendant was discharged from this program on May 6, 2010 due to noncompliance. She was again referred to a substance abuse program in May 2010, but tested positive for alcohol once and drugs another time. Defendant was then terminated from the Substance Abuse Initiative (SAI) on July 6, 2010.

Defendant waived her right to a fact-finding hearing on August 24, 2010, admitting she relapsed and used alcohol while she was attending substance abuse treatment and Zach was in her custody.

On September 15, 2010, Zach was referred to Jennifer Ibrahim, M.D., for a genetic consultation regarding the possibility that he had fetal alcohol syndrome following a diagnosis that his facial features were consistent with fetal alcohol syndrome and developmental delay. A "Review of Systems" included the following notes regarding his cardiovascular, gastrointestinal, respiratory, musculoskeletal, neurological and endocrine systems: the walls of Zach's heart are "thick"; he was previously diagnosed with reflux, for which he takes Prevacid and is under the care of the Feeding and Swallowing team; he suffers from hypotonia (decreased muscle tone) and developmental delay, and has "shaking" episodes; and, as to his endocrine system, the review stated "failure to thrive." All of Zach's growth parameters were below the third percentile. Dr. Ibrahim concluded that the findings were consistent with fetal alcohol syndrome.

Defendant again tested positive for alcohol on September 24, 2010 and October 14, 2010. On November 9, 2010, defendant signed a treatment contract with SAI, agreeing to inpatient substance abuse treatment at Turning Point. She did not enter the program until November 26, 2010, making various excuses for the delay. Defendant successfully completed this program and was discharged on December 29, 2010. However, despite Turning Point's recommendation that she receive after-care treatment, defendant declined to attend the program, stating she did not have a drinking problem and that she did not wish to attend. Defendant thereafter left the program and was discharged on January 29, 2011.

Defendant admitted at trial that she drank brandy twice a day while she was pregnant with Zach. She testified further that, although she had stopped drinking, she was not in any program at the time of trial, having established a support network outside Alcoholics Anonymous and Narcotics Anonymous. She testified that, even if the Division offered her an inpatient substance abuse program, she would not attend.

The first prong of the best interest test requires proof that the "child's safety, health or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). Defendant argues there was insufficient proof that she physically or emotionally harmed Zach. She contends that the only proof of her alcohol consumption was her comment to hospital personnel. She argues further that the conclusion reached by Dr. Ibrahim that Zach suffers from fetal alcohol syndrome as a result of her alcohol consumption is "speculative at best," and that there is, in fact, no evidence that Zach suffered any harm as a result of her alcohol consumption during pregnancy.

Contrary to her assertions on appeal, defendant admitted on several occasions that she drank brandy twice a day during her pregnancy, despite being warned by her doctor of the dangers of consuming alcohol and drugs during pregnancy.

Judge Sabbath made the following findings as to this prong:

During the pregnancy, it was admitted by [Y.M.] and the evidence is undisputed that during that pregnancy, she drank alcohol and that, as a result of her use of alcohol during the pregnancy, the child suffered fetal alcohol syndrome and has suffered a permanent injury with permanent health effects -- adverse health effects on the child. So, consequently, the use of alcohol during the pregnancy constitutes a harm to the child, and the resulting fetal alcohol syndrome is a harm under the first prong.

 

[Y.M.] testified that while she was drinking alcohol during the pregnancy, she just did it without thinking about it, and that at no time while she was receiving prenatal care did she tell the doctor that she was drinking alcohol during her pregnancy.

 

The first prong also indicates the child's health and development have been, which I just indicated, or will continue to be endangered by the parental relationship. I find that the evidence in the case is clear and convincing that [Y.M.] is an alcoholic, she's under the rule of alcoholism, she is unable to address her alcoholism and her drug abuse as well. She tests -- through these proceedings, she tested positive for alcohol on a number of occasions. She tested positive for marijuana, and she tested positively for cocaine, so that if the child were in her custody, the child would continue to be endangered by the parental relationship.

 

We are satisfied that the evidence supported the conclusion that Zach suffered from fetal alcohol syndrome as a direct result of defendant's alcohol consumption while pregnant. Accordingly, the first prong was satisfied.

Under the second statutory prong "[n]o more and no less is required of [the parents] than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). In other words, "[t]he Division must demonstrate that the parent is 'unable to eliminate the harm facing the child or is unable . . . to provide a safe and stable home for the child,' . . . before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001) (quoting N.J.S.A. 30:4C-15.1a(2)), certif. denied, 171 N.J. 44 (2002).

In addition to fetal alcohol syndrome, Zach also has a heart murmur, asthma, vision deficiencies, and motor skill developmental deficiencies. Zach requires constant care and attention due to his medical fragility, and was hospitalized five times in just one year. While Zach was in defendant's custody, defendant continued to test positive for alcohol and marijuana, reflecting an inability and unwillingness to provide Zach with the heightened level of care and attention he requires. Defendant remains untreated for her alcohol addiction, despite DYFS's efforts to provide her with the treatment and counseling she needs. Defendant refused to complete treatment programs, even with the knowledge that her noncompliance would threaten her ability to regain custody of her child and result in the loss of welfare and Medicaid benefits.

Judge Sabbath stated the following regarding the second prong:

The Division attempted to provide [Y.M.] with five or six programs regarding her addictions, and she failed to complete any of these programs. She is both unwilling, as stated in her psychological interview with Dr. Battaglia, and unable to eliminate the harm in terms of her addiction.

 

She is unable to provide a safe and stable home for the child. Because she refused to comply with the Substance Abuse Initiative, she lost welfare, she lost her welfare check, she lost her food stamps. She is now in a situation where she relies on earnings under the table at $125 a week, and she has to leave her present apartment because the landlord's raising the rent. She has no other stable employment other than this $125 a week that she said that she earns as a result of doing home healthcare.

 

. . . .

When the child was born, there was a referral, and at that time, the referral from the hospital related to the alcoholism. But the child was left with [Y.M.]. The child was not removed, so that there was a care and supervision arrangement with the Division but not custody. So she had an opportunity to retain the child in her custody. She was required to go to Options, and when she went to Options, the test on March 30th, 2010 indicate[d] that she tested positive for alcohol and, therefore, the child had to be removed.

 

. . . .

 

So even when she had an opportunity to maintain the child in her custody, she was unable to do so, and she refused to refrain from continued use of alcohol. The child has been in foster care ever since.

 

[(Emphasis added).]

 

The evidence provides no basis to conclude that defendant, who has a long history of alcohol and substance abuse, has the ability or the will to overcome her addictions to permit her to properly care for her son. We are therefore satisfied that Zach would be in danger if in defendant's custody and that the third prong was satisfied by clear and convincing proof.

There are two aspects to the third statutory prong: that the Division make reasonable efforts to provide appropriate services and that the Division consider alternatives to termination. Defendant concedes that DYFS satisfied its obligation of making reasonable efforts to provide her with opportunities for treatment and that she failed to take advantage of those services. She does, however, argue that DYFS failed to prove that there were no alternatives to termination, claiming that the court's termination of her rights was "premature."

Defendant suggested two potential placements, her mother, G.G., and her brother, M.G., both of whom were ruled out by DYFS due to their unwillingness to serve as caretaker of Zach. Defendant's other brother, K.G., independently contacted DYFS and expressed interest in obtaining custody of Zach. He was ultimately approved as a relative resource. DYFS's plan is for Zach's uncle to adopt him.

Defendant argues that the court failed to consider that Zach could be placed in her brother's custody during the time that she pursues her rehabilitative efforts without a termination of her parental rights. She states that "[g]ranting KLG [kinship legal guardianship] would take away some . . . stress[,]" as "she would have some hope of retaining some rights as to her son[,]" and would "thereby facilitate her rehabilitation efforts."

Defendant's argument that the court improperly rejected the concept of kinship legal guardianship is without merit. As this court stated in N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127 (App. Div. 2011),

kinship legal guardianship [is] a more permanent option than foster care when adoption is neither feasible nor likely . . . . Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights[.]

 

[Id. at 137 (emphasis added) (internal quotation marks omitted).]

 

Since both K.G. and the foster parent were willing to adopt the child, kinship legal guardianship was not an available option here. Accordingly, Judge Sabbath gave sufficient consideration of alternatives to termination:

[T]he Court has considered whether or not there are alternatives to termination of parental rights. And there are none. At the present time, the maternal uncle, [K.G.], has indicated that he is interested in adopting the child. . . . [K.G.] came forward on his own indicating that by letter or e-mail that he had heard about the case from his own mother and . . . that he didn't want to see this child taken away and that he and his wife were amenable to adopting this child. And that is the Division's plan. He has already been cleared, so to speak, and the process is well underway for placement and adoption by [K.G.] so that the second part of the third prong has been satisfied.

 

We agree.

The fourth prong, which addresses whether "[t]ermination of parental rights will not do more harm than good[,]" N.J.S.A. 30:4C-15.1(a)(4), focuses on whether "the child will suffer a greater harm from the termination of ties with the natural parents than from the permanent disruption of the relationship with [the] foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). An important consideration under this prong is "[the] child's need for permanency." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012). In determining "whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care," the court must consider "the child's relationships both with [the] biological parents and [the] foster parents." I.S., supra, 202 N.J. at 181. "[T]o satisfy the fourth prong, [DYFS] should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." F.M., supra, 211 N.J. at 453 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)).

Judge Sabbath stated:

With respect to the fourth prong, termination of parental rights will not do more harm than good, I find that the testimony by Dr. Battaglia, a certified expert, a psychologist whose credentials have not been disputed . . . is credible and is adopted by the Court. Dr. Battaglia relied upon the documents that were provided to him. He relied upon the psychological interview and he relied upon the one test that he deemed necessary for the purposes of evaluating whether or not [Y.M.] could safely parent the child.

His opinion based upon the psychological interview and the testing and the background of the case is also supported by the undisputed facts in the case so that the Court finds his ultimate opinion that [Y.M.] does not have the capacity to safely parent the child is credible and is adopted by the Court.

 

Dr. Battaglia indicates in his report, and I quote from Page 8:

 

"[Y.M.] is a woman with significant addiction problems [which] negatively impact her reasoning, judgment, and [willingness] to speak honestly. She minimizes the extent of her drinking [in] the past and reports she only drinks socially now."

 

As I indicated, I find that statement by her non-credible.

 

"She demonstrates minimal motivation or commitment to making her life better by availing herself of the resources around her. She has no intention of complying with the Division," and I'm adding my own language, "in terms of remediation of her substance abuse, and insists that she has not been treated fairly. She also frequently lies about what she is doing, what she understands."

The primary issue in terms of Dr. Battaglia's opinion is that:

 

"It is with reasonable psychological certainty that [Y.M.] continues to be unable to care for her son, and it is unlikely that she ever will be able to care for him in any unsupervised capacity as long as she refuses treatment and continues to use alcohol."

 

This Court finds that [Y.M.] does not have the capacity to safely parent her child. If the child would be in her custody on a daily basis, she would have to be free of alcohol and drugs so that she would be able to make the necessary decisions to protect the child. And she is not capable of doing that at the present time.

 

The testimony indicates that she's been a long-time alcoholic and a long-time drug abuser and that she has no intention to remediate that issue so that this Court finds that the child would be at risk of grievous harm if the child were to be placed in her capacity -- in her custody with respect to issues of day-to-day parenting, providing of shelter, attending to the child's medical needs, social needs, [and] educational needs. This child, who has special needs, would be at great risk.

 

That being the case, under Prong 4, the evidence is clear and convincing that she does not have the capacity to parent the child safely, and there is no reasonable prospect that she could do so within the reasonable future.

 

[(Emphasis added).]

 

Defendant argues that since no bonding evaluation was conducted, the court had no evidence from which to conclude that Zach would suffer harm if removed from his current placement. Defendant further argues that DYFS failed to prove that severing the relationship between her and Zach would be in the child's best interests.

Although there are "very few scenarios in which [a] comparative [bonding] evaluation[] would not be required[,]" N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), this case does not warrant such an evaluation. In this case, the fourth prong is satisfied not because Zach would be harmed if separated from his foster parent, which would require a bonding evaluation, see In re Guardianship of J.C., 129 N.J. 1, 18-19 (1992), but because defendant is "wholly unfit" to parent. Therefore, Judge Sabbath correctly observed that no bonding evaluation was required to find the fourth prong satisfied. We agree.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012. Because this matter preceded the enactment of this law, we continue to refer to the Division of Youth and Family Services.

2 Fictitious names are used to protect the privacy of the child and to avoid confusion.