NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.W.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2653-11T1

 

 

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,

 

Plaintiff-Respondent,

 

v.

 

D.W.,

 

Defendant-Appellant.

 

_____________________________

 

IN THE MATTER OF THE GUARDIANSHIP OF

T.H., P.H., A.H., G.H.,

and S.W.,

 

Minors.

 

______________________________________________________

February 11, 2013

 

Submitted January 7, 2013 - Decided

 

Before Judges Graves, Espinosa, and Guadagno.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-136-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant D.W. (Alan I. Smith, Designated Counsel, on the brief).

 

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

 

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

 

PER CURIAM

Defendant D.W. (Diane)1appeals from a December 20, 2011 order terminating her parental rights to her five youngest children and granting guardianship to the Division of Youth and Family Services (DYFS or the Division).2 The order also terminated the parental rights of R.S. (Rick) and an unidentified biological father, "whomsoever he may be." Diane contends that DYFS failed to satisfy its burden of proving prongs three and four of the best interests test, N.J.S.A.30:4C-15.1(a). Because the trial court's findings and conclusions are supported by clear and convincing evidence, we affirm.

The relevant facts are as follows. Diane is the biological mother of ten children. The five youngest are: T.H. (Tess), born October 5, 2004, now eight years old; P.H. (Pam), born April 23, 2006, now six; A.H. (Adam), born June 27, 2008, now four; G.H. (Genna), born August 11, 2009, now three; and S.W. (Sarah), born November 17, 2010, now two years old. Diane has a history of substance abuse, including alcohol and cocaine, that has resulted in drug-related arrests and incarceration. She also suffers from bipolar disorder.

Diane's involvement with the Division dates back to 1994 when it received a referral concerning domestic abuse. Thereafter, the Division continued to receive referrals involving her and her children. Diane lost custody of three older children because they tested positive for cocaine at birth.

In 2007, allegations that Diane neglected Tess and Pam were substantiated and they were placed in the custody of the Division. Diane completed a substance abuse program in August 2007, and attended couples counseling with her boyfriend J.H. (Juan). Legal and physical custody of the children were returned to her on August 29, 2007, and the matter was dismissed on December 5, 2007.

In October 2008, Diane was involved in an automobile accident, and it was determined that her blood alcohol content was .184 percent. She also tested positive for opiates. However, she subsequently attended a MICA (Mentally Ill and Chemically Addicted) program, a drug treatment program, and a parent education program.

In March 2009, an anonymous caller advised the Division that Diane's apartment was "so bad, so dirty, that no one should live there." The Division's investigation revealed that the apartment was "clean yet cluttered," and there were "no risk factor concerns." Accordingly, the three children, Tess, Pam, and Adam, continued to reside with their mother.

After Genna was born on August 11, 2009, the Division received a referral from the children's treating pediatrician. The doctor stated that Diane was "in emotional distress" and in need of "assistance from the Division" to help her care for her children. Additionally, a DYFS caseworker noted on September 4, 2009, that there was "not enough space in [Diane's] apartment for all the family," "the baby's clothes were being used to take something out of the oven," and the children's clothes were dirty and stained.

On September 12, 2009, the Division received a referral indicating that Diane was intoxicated and unable to care for her children. Earlier that day, the Guttenberg Police Department had responded to Diane's residence after one of her older children reported that she was intoxicated and beating him. When the police responded to the call, theyfound Diane intoxicated with six children in an apartment that was "extremely dirty and cluttered and unfit for the kids." Diane was charged with endangering the welfare of her children and the children were removed by the police. That same day, the Division initiated an emergency removal pursuant to the Dodd Act,3and placed Tess, Pam, Adam, and Genna in the custody of their purported father, Juan. The two older children were placed together and thereafter involved in a separate proceeding due to their ages and behavioral issues.

On September 15, 2009, the Division's application for the custody, care, and supervision of Tess, Pam, Adam, and Genna was granted by the court. The court also ordered Diane to attend a substance abuse evaluation and to cooperate with homemaker services. The Division allowed the children to remain with Juan. However, on January 27, 2010, after a DNA test showed that Juan was not the biological father of any of the four children, the Division was granted physical and legal custody of the children. The four children were then placed in foster care. The same order required Diane to attend substance abuse treatment and to obtain a psychological evaluation.

From February through September 2010, Diane missed numerous supervised visits with her children, and she failed to complete a substance abuse program and mental health counseling. However, she completed a parenting class and anger management counseling, and she was evaluated by Dr. Daniel Bromberg, a psychologist, on April 26, 2010.

Dr. Bromberg concluded that Diane had "an inadequate knowledge of childproofing precautions," "a history of rule-breaking behavior, including prior arrests and incarceration at the Edna Mahan Correctional Facility, New Jersey's state prison for women," and a history of domestic violence that "places her children at risk for both physical and emotional harm." On June 9, 2010, the family court ordered legal and physical custody of Tess, Pam, Adam, and Genna to remain with the Division. The order also required Diane to continue to attend substance abuse treatment, and the Division was ordered to search for Rick, who Diane had identified as the father of the four children.

On August 9, 2010, the Division sent a rule-out letter to W.T. (Wess), Diane's adult nephew. The letter stated that Wess was ruled out as a relative placement, because he was "either not willing or not able to provide a home for the children." The Division sent similar rule-out letters to R.T. (Rhona), Diane's older sister, and M.T. (Mary), Diane's mother.

In September 2010, a Division paralegal provided the court with an affidavit of diligent inquiry detailing attempts to locate Rick. Due to a lack of information concerning Rick, including his address, date of birth, and social security number, the Division was unable to locate him.

Based on Dr. Bromberg's evaluation, the family court approved the Division's permanency plan to terminate parental rights on September 8, 2010. On October 21, 2010, the Division filed a complaint for guardianship for the four children. The complaint noted the children were residing together in an approved foster home, the foster parents wished to adopt them, and there were "no alternatives to termination of parental rights."

Diane gave birth to Sarah on November 17, 2010. On that same day, Sarah was taken into protective custody through an emergency removal, and placed with a separate foster family from her siblings. On November 22, 2010, the guardianship complaint was amended to include Sarah. The following day, the family court entered an order granting the Division's request for temporary custody of Sarah. The court found that removal was required due to "[Diane's] inability to care for [Sarah]."

In December 2010, after she sustained a fractured skull and a broken arm, Sarah was removed from her foster home and placed with the foster family that was caring for her four siblings. At a hearing on December 15, 2010, Diane advised the court that C.R. was the father of Sarah, but he was later ruled out by a paternity test. That same month, Diane tested positive for cocaine in a random drug test.

The Division referred Diane to Dr. Alvaro Gutierrez, M.D., for a psychiatric evaluation in January 2011. Dr. Gutierrez diagnosed her with "Bipolar Disorder hypomanic episode" and "Polysubstance Abuse." He recommended Diane participate in a MICA program, be subject to random drug screenings, and continue on medication. He also stated: "In my opinion, [Diane] is unable to provide care and supervision necessary to protect two month old [Sarah] from potentially serious harm at this time."

At a hearing on February 23, 2011, there was a discussion regarding placement of the children with relatives, including Rhona and Wess. The Division reported that Rhona was not interested at this time in any of the children and that Wess said he was only interested in two of the children. Nevertheless, the court ordered the Division to further investigate whether Rhona and Wess were eligible to serve as placements for the children.

Thereafter, DYFS sent Wess a letter dated March 2, 2011, stating that two of the children would not be placed in his home because it was the Division's policy "to keep siblings placed in the same home whenever possible." Wess appealed the Division's decision to rule him out as a relative placement, and he sent a letter to the court stating that he was cooperating with the Division regarding all of the children, and he wanted to continue weekly visits with the children.

Dr. Frank Dyer, Ph.D., completed his psychological evaluation of Diane and bonding assessments of the children with their mother and their foster mother on March 25, 2011. He noted in his report that Diane told him the biological father of the children "does not want to have anything to do with any of them." Dr. Dyer also noted that Diane had been diagnosed with bipolar disorder, she recently tested positive for cocaine, and she appeared "to be preoccupied with issues of grief and loss regarding her son who died at the age of 13 of pneumonia three years ago." Dr. Dyer found that Diane's continued use of drugs and her "incapacitating psychiatric condition" limited her capacity "to provide a safe, appropriately structured, nurturing, and stimulating environment" for her children. He recommended that Diane "not be considered as an appropriate caretaker for any of the children who are currently in placement."

Dr. James Reynolds, Ph.D., evaluated Diane and submitted a report dated May 2, 2011. According to Dr. Reynolds, Diane acknowledged that her residence was "insufficient for her and her five children." In addition, psychological testing revealed that she may be predisposed "to exercise poor judgment in a variety of situations and circumstances." Dr. Reynolds concluded that although Diane has "strong and effective parenting skills/abilities," and she had "developed safe and secure relationships with her children," it was "not likely" that she was "capable of independently caring for the children" at that time.

Based on the bonding evaluations he performed, Dr. Reynolds concluded that "terminating [Diane's] parental rights will not result in severe and/or enduring harm to the children. The relationship the children enjoy with their foster mother, in conjunction with any needed intervention services, will be sufficient to ameliorate any harm the children may experience from that occurrence." Dr. Reynolds also stated, however, that the children's development would "be better served by returning them to their biological family system as opposed to severing those relationships." He also stated that it would "be best if all five children were placed together in either the home of [Rhona] or [Wess]" but if that was not possible, then the three oldest children should remain together "as their relationship bonds are likely the strongest."

Dr. Reynolds also completed psychological evaluations of Rhona and Wess in June of 2011. Dr. Reynolds concluded that Rhona was "an appropriate candidate to provide family-based assistance in helping her sister, [Diane], safely provide and care for her five youngest children." He also concluded that Wess was an appropriate candidate who possessed "adequate parenting skills/abilities to meet the children's developmental and maturational needs."

In July 2011, the Division sent letters to Rhona and Wess, stating that it wished to schedule a time for a resource worker to visit their homes and determine if their residences were suitable. The letter to Rhona noted that she had requested placement of seven children, and the letter to Wess stated that he had requested placement of two children.

Dr. Dyer evaluated Rhona and Wess to determine their parenting capacities, and he prepared a report dated July 27, 2011. Dr. Dyer found that Rhona "would be able to offer an appropriate nurturance and commitment to any of [Diane's] children who may be placed with her." However, he concluded that Rhona's "overall intellectual limitations and overly dependent, passive, compliant nature" were factors that "should disqualify her as a viable caretaker for any of the children at issue in the present litigation."

In his report, Dr. Dyer described Wess as "a very nurturing, conscientious man who is invested in the welfare of [Diane's] children." Dr. Dyer concluded that if the two younger children were placed with Wess, "he would be able to offer them an appropriate, secure, stimulating, and adequate structured environment where their needs would be met."

The four-day guardianship trial and best interests hearing commenced on November 14, 2011. Diane was not present and her absence was unaccounted for.

Caseworker William Laranaga testified that the Division offered numerous services to Diane, including psychological evaluations, parenting classes, substance abuse evaluations, substance abuse treatment, paternity testing, bus passes for visitation, and anger management counseling. He stated that Diane completed parenting classes and anger management counseling, but did not successfully complete substance abuse and mental health counseling. Laranaga also testified that Diane did not consistently visit the children. Her last visit was October 5, 2011, and prior to that she visited her children one time in August.

Laranaga testified that the Division had considered placement with Rhona and Wess, but at the time of trial the children were still in a foster home. According to Laranaga, if the court granted the petition for guardianship, the Division's plan was to allow the foster parents to adopt the children in order to keep the children together. Laranaga stated that Wess was willing to care for all five children, but his home could only be licensed for two children, and that he was unable to complete Rhona's home evaluation.

On November 15, 2011, Dr. Dyer testified Diane did "not possess the ability to parent her children appropriately" due to her "psychological problems," "history of substance abuse," "recent positive tests for cocaine," and "disorganized lifestyle." He diagnosed her with Bipolar Disorder, alcohol abuse history, cocaine abuse, personality disorder, and antisocial features.

Dr. Dyer also testified that during the bonding evaluation he performed, the children were enthusiastic to see their mother, but their behavior was problematic, most likely due to the disruptions they had experienced in the "chaotic environment" of Diane's home. When he was asked about the harm the children might suffer if parental rights were terminated, Dr. Dyer stated they "would suffer some degree of loss" but "[t]hey've been far more harmed by the fact that they've been out of [Diane's] care for so long and have experienced so many disruptions in the continuity of their care that they are confused at this point as to who it is that they should be regarding as the individual with parental authority."

Dr. Dyer also testified he had "no reservations about [Wess] as a caretaker for [Sarah and Genna]" based on his realistic understanding of the children's situation, and his strong commitment to the welfare of the children. Dr. Dyer stated he did not endorse Rhona as a caretaker for any of the five children because of her "mild cognitive limitations" and dependent personality.

Caseworker Carla Gaffney confirmed that in August 2010 Wess informed the Division that he was willing to care for all of the children. However, his home was too small to accommodate five children.

On November 28, 2011, Dr. Reynolds, Wess, Rhona, and Diane's mother Mary, who resided with Rhona, testified. Dr. Reynolds noted that "all five children have done their fair share of bouncing around from one caregiver to another, so in some respects all five of them are sort of inoculated against a certain amount of harm." He also testified that based on his evaluation "there was no impediment . . . with regard to [Wess] being able to take care of the children." Similarly, he testified "there was no impediment . . . that would interfere with [Rhona's] being able to raise some or all of [the] children either by herself or in concert with [Wess]."

On cross-examination, Dr. Reynolds stated that at the time of his evaluation, Diane was unable to parent her children because "she didn't have appropriate housing" and her "daily activity schedule was such that she wasn't able to take care of the children by herself." He also stated that termination of parental rights would not "necessarily result in any enduring or significant harm to the children."

Wess testified he told both Laranaga and Gaffney that he was willing to adopt all five of the children. But he needed a larger house to accommodate the children, and the Division did not offer him any assistance. Wess also testified he would rather adopt the children than be appointed a kinship legal guardian because adoption would provide him with the authority to prevent Diane from having unauthorized contact with the children.

Diane's sister, Rhona, also testified that she was willing to adopt all of the children. In addition, Rhona said she would ensure that the siblings had contact with each other if she did not have custody of all five children.

On December 20, 2011, the court entered an order terminating Diane's parental rights and granting guardianship of the children to the Division. The same order placed Genna and Sarah with their cousin Wess, and it placed Tess, Pam, and Adam with their aunt Rhona effective January 17, 2012. The order required the Division to provide assistance to Rhona and Wess to facilitate the placement. In an accompanying written decision the court found that the Division had proven by clear and convincing evidence that it is in the best interests of the children to terminate Diane's parental rights.

Diane presents the following arguments on appeal:

POINT I

 

THE ORDER OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THE THIRD AND FOURTH PRONGS OF THE BEST INTERESTS TEST BY "CLEAR AND CONVINCING" EVIDENCE.

 

A. THE DIVISION DID NOT MAKE A GOOD FAITH EFFORT TO PLACE THE CHILDREN WITH THEIR BIOLOGICAL RELATIVES AS AN ALTERNATIVE TO TERMINATING PARENTAL RIGHTS.

 

B. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

 

We conclude from our examination of the record and the applicable law that the trial court's findings and conclusions are adequately supported by clear and convincing evidence. We therefore affirm with the following comments.

"The right of a parent to raise a child and maintain a relationship with that child, without undue interference by the state, is protected by the United States and New Jersey Constitutions." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J.88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J.337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J.at 347 (second alteration in original) (quoting N.J.S.A.30:4C-1(a)).

Parental rights are not absolute, however. "The constitutional protection surrounding family rights is tempered by the State's parenspatriaeresponsibility to protect the welfare of children." Ibid.(citing In re Guardianship of J.C., 129 N.J.1, 10 (1992)). "The State has a basic responsibility . . . to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J.at 102 (citing K.H.O., supra, 161 N.J.at 347); see alsoN.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.261, 279 (2007) ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, our Legislature has determined that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A.30:4C-1(a).

"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J.at 347. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory requirements 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 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).]

 

These four requirements "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. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances present in the given case." Ibid.(quoting In re Adoption of Children by L.A.S., 134 N.J.127, 139 (1993)).

The trial court found the Division had proven prong one by clear and convincing evidence, because Diane "abused and/or neglected her children on or about September 12, 2009, when she became intoxicated to the point that she was unable to care for her children," and was diagnosed with "severe psychiatric illnesses." The court relied on the evaluations by Drs. Gutierrez, Dyer, and Reynolds, who agreed that Diane "is not capable of caring for the children at this time."

With regard to prong two, the court stated it is "clear that [Diane] is either unwilling or unable to eliminate the harm facing these children. [She] has been given numerous opportunities to address her psychological and substance abuse needs as DYFS has been involved with her for many years. [She] has simply failed to take advantage of the services."

With respect to the third prong, the court found the Division did consider alternatives to termination, although its "efforts to pursue either [Wess] or [Rhona] were minimal at best." Because the Division evaluated Rhona and Wess, and ultimately ruled them out in order to keep the five children together, the court found the Division satisfied its burden of proof. Nevertheless, as previously noted, the court placed the children with Wess and Rhona even though the Division had ruled them out.

Finally, as to prong four, the court stated there was "absolutely no evidence" that termination of parental rights would do more harm than good. Rather, the court found that Diane was unable to adequately parent the children and termination of her parental rights would not do more harm than good.

As our Supreme Court has noted, the "[r]eview of a trial court's termination of parental rights is limited." M.M., supra, 189 N.J.at 278. A reviewing court should "invest the family court with broad discretion because of its specialized knowledge and experience in matters involving parental relationships and the best interests of children." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J.420, 427 (2012). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J.596, 605 (2007). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. Pascale v. Pascale, 113 N.J.20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J.at 605.

In this case, we have determined from our independent review of the record that the trial court's findings and conclusions are adequately supported by clear and convincing evidence. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory factors under N.J.S.A.30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Mark Nelson in his comprehensive written decision dated December 20, 2011.

Affirmed.

1 To protect the confidentiality of the parties, we use fictitious names.

2 Effective June 29, 2012, the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

3 The Dodd Act, N.J.S.A. 9:6-8.21 to -8.73, provides for emergency removals without a court order or parental consent where the child's "life, safety or health" is in "imminent danger." N.J.S.A. 9:6-8.29.