NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6055-11T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

L.T.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.T., a minor.

__________________________________

April 24, 2013

 

Submitted March 18, 2013 - Decided

 

Before Judges Ashrafi, Espinosa and Guadagno.

 

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, Docket No. FG-12-64-12.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (David A. Gies, Designated

Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kourtney J.A. Knop, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law

Guardian, attorney for minor (Jeffrey R.

Jablonski, Designated Counsel, on the brief).

PER CURIAM

Defendant-mother, L.T., appeals from the judgment of the Family Part terminating her parental rights to a daughter, A.T., now three years old. We affirm.

The Division of Youth and Family Services (DYFS) filed a complaint in November 2011 to terminate the parental rights of defendant-mother and the child's biological father, T.B. The father did not participate in the proceedings in the Family Part and has not appealed the court's judgment terminating his parental rights.

The mother and her attorney participated at a two-day guardianship trial held in the Family Part in June 2012. The court reviewed documentary evidence and heard testimony from two DYFS caseworkers and from Elayne Weitz, Psy.D., who had conducted a psychological evaluation of the mother and also bonding evaluations of the child with the mother and with the foster parents who seek to adopt her. Defendant-mother did not testify and presented no witnesses at the trial. A summary of the relevant facts follows.

DYFS first became involved at the time of the child's birth in March 2010. The mother, then twenty-two years old, had tested positive for marijuana use on three occasions while pregnant and again at the time of the child's birth. DYFS referred the mother to substance abuse counseling and arranged a psychiatric consultation, but it did not take action to remove the child from the mother's custody at that time. The mother did not complete the counseling to which she was referred, and she scored poorly on the mental health examination. She refused to participate in any inpatient program to address her drug use. She was also referred to a parenting skills class, but she did not complete that program.

After her discharge from the hospital, the mother moved into a family shelter facility with the child. The shelter subsequently asked her to leave because she displayed anger and was disrespectful to staff and peers. The mother and child then moved into a YMCA, but they were asked to leave that facility as well because of non-compliance with its rules.

On July 4, 2010, when the baby was three months old, DYFS learned that a babysitter had called the police because the child was sick and the mother could not be located. The child was taken to a hospital with fever and a respiratory illness. The mother had left the child with the babysitter for several days without disclosing where she would be. The babysitter did not know the mother's name and had no way to contact her. DYFS later learned that the child had not received any vaccinations and had not been taken to a doctor for examination since her birth. DYFS made an emergency removal of the child from the mother's custody and placed her in foster care.

After the mother was located, DYFS referred her again for substance abuse evaluation and parenting education. The mother failed to attend the substance abuse evaluation and was later terminated from the parenting program. In November 2010, the mother's visitation with the child under DYFS supervision was suspended because she was not attending the services to which she had been referred. DYFS then lost contact with her and could not locate her for the next two months.

In February 2011, the mother emerged and began attending a parenting program. However, she did not complete the MICA program (mental illness and chemical abuse/addiction) to which DYFS had also referred her to address her psychological and substance abuse problems. Nevertheless, DYFS pursued a plan for reunification of the mother and child because she was attending the parenting program, and she eventually completed it.

In July 2011, the child was reunited with the mother, and they were referred to a transitional residency program. After a few weeks, however, she was discharged from that facility for failure to pay rent, failure to participate in anger management classes, failure to participate in a work program, failure to participate in parenting classes, and failure to abide by the facility's rules.

At the end of August 2011, the mother moved into her mother's residence in New Brunswick. She told DYFS that she did not intend to participate in any residential programs. DYFS removed the child again from the mother's care in September 2011 because she did not have a stable home and would not attend and complete programs intended to protect the child from the risk of harm. At that point, DYFS changed its plan for the child from reunification with the mother to one for guardianship leading eventually to the child's adoption. The child was placed again with the foster parents that had cared for her previously, and they expressed a desire to adopt her.

After the child's second removal, the mother was referred for psychological and substance abuse treatment, but she did not follow through with any program. She again failed to attend a MICA program. She refused to enroll in an inpatient treatment facility and was sporadic in her attendance at outpatient programs.

Although she had the opportunity to see her daughter, she frequently missed scheduled visits arranged by DYFS, and she engaged in inappropriate conduct with the child when she did visit with her. She also failed to attend the first bonding evaluation that DYFS scheduled in May 2011.

DYFS caseworkers often had difficulty finding the mother at the addresses she provided. She moved from place to place, often staying in motels. She was unemployed during the entire time of DYFS's involvement in the case.

At the guardianship trial, Dr. Weitz testified about her findings and conclusions, and her report was admitted in evidence. According to the doctor, defendant-mother had acknowledged several psychiatric hospitalizations and also a history of drug use, including previous addiction to cocaine. She also admitted a history of suicide attempts and self-mutilation. Dr. Weitz noted the mother's reports of physical and emotional abuse at the hands of her own mother and involvement in minor criminal activity. The doctor explained her concerns about the mother's ability to care for a young child because of her own depression and despondency.

Although Dr. Weitz testified that her testing did not indicate the mother would physically abuse the child, she recounted the following about her inability to care for the child: "[S]he found it really frustrating to have to spend all that time alone, just with [the child], taking care of her in the shelter. And felt frustrated and yelled at her two-month-old, which she felt really badly about." The doctor's report added: "When [the child] was returned to her care, [the mother] barely knew what to do with her, because she had grown and changed so much." Significantly, the mother exhibited no plans to establish a stable home and relationship with the child, merely stating that she wanted custody while at the same time acknowledging that she had no housing or financial means and had not been compliant with services.

The trial judge reviewed the evidence and stated his findings of fact and conclusions of law in accordance with the applicable statute, N.J.S.A. 30:4C-15.1(a). The judge concluded by the clear and convincing standard of proof that the best interests of the child support termination of the mother's parental rights so that the child might benefit from permanency in her placement and adoption by her foster parents.

As an appellate court, we do not weigh the evidence again as if we must make an initial decision. We defer to the trial court's findings of fact and the conclusions of law that are based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).

We accord deference to the trial judge because he had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the Family Part's conclusions were not wide of the mark but well-supported by the evidence DYFS presented.

The mother contends the judgment should be reversed because the evidence did not satisfy all four criteria required by N.J.S.A. 30:4C-15.1(a) for termination of her parental rights. Under the statute, parental rights may be terminated when:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

 

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

 

(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

 

(4) Termination of parental rights will not do more harm than good.

DYFS bears the burden of proving the statutory criteria by clear and convincing evidence. G.L., supra, 191 N.J. at 606. The Family Part's inquiry is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. The four subsections of the statute 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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). In this case, all prongs of the statute were amply proven.

The Family Part found that the child had been harmed because of the mother's marijuana use during pregnancy, although there was no evidence of actual physical harm to the newborn. We will not give any weight to that finding in accordance with the Supreme Court's recent decision in New Jersey Department of Children & Families v. A.L., 213 N.J. 1, 23 (2013) ("not every instance of drug use by a parent during pregnancy, standing alone, will substantiate a finding of abuse and neglect"). But the child was not removed from the mother's custody at the time of her birth in March 2010 because of the mother's use of marijuana.

In July 2010, the mother left the ill infant in the care of a babysitter for several days and disappeared. She did not leave contact information with the babysitter, who did not even know her name. The babysitter had to contact the police for help, and the child was taken to a hospital with fever and a respiratory illness. The child had not been examined by a doctor since leaving the hospital after her birth, and she did not receive vaccinations.

As the Family Part recognized, it was also the subsequent abandonment of an ill child in the care of an unfamiliar babysitter that established proof of harm and caused DYFS to take emergency action to take custody of the child. Furthermore, DYFS later attempted to reunite the mother and child, but the mother's ongoing and subsequent failures were ultimately the harm that resulted in the second removal of the child from her custody and the permanency plan for termination of her parental rights.

The first prong of the statute was proven by the mother's failure and inability to provide stable housing for the child despite many referrals to shelters and transitional residential facilities. She was repeatedly discharged or left the facilities because she would not abide by rules and displayed aggressive behavior toward staff and other residents. Her failure to attend and complete substance abuse and parenting programs also presented a risk of failing to care for the child again, as she had done in July 2010. That risk was too serious to allow the child to remain in the unstable care of the mother. Her moving from place to place and not being found for many weeks at a time indicated that the child was at risk. Harm and risk of harm to the child were amply proven by the mother's unpredictable manner of conducting her own life despite now having a young infant that was her responsibility.

As to the second and third prongs of the statute, there was abundant proof that DYFS made many referrals of the mother for assistance in overcoming her parenting and personal deficits, but she was unwilling or unable to take advantage of those opportunities. She repeatedly abandoned the programs and was discharged from residential facilities for non-compliance with rules and other requirements. Also, DYFS attempted to find alternative placements for the child to avoid termination of the mother's parental rights, but any other caregiver that was suggested was ruled out as inappropriate.

On appeal, the mother argues primarily that the evidence did not demonstrate by the clear and convincing standard of proof that termination of her parental rights did not do more harm than good, the fourth prong of the statute. We disagree.

In her testimony at trial, Dr. Weitz gave a mixed assessment of the bonding between the mother and child: the mother was physically affectionate, she provided adequate supervision, she overcame the child's initial resistance to eating, but the child only allowed and did not initiate any physical contact with her mother, the child was noticeably more interested in the toys than in the mother's company, the mother became unnecessarily harsh with the child, and the child showed no concern or reaction when the mother left the room or again re-entered. On the other hand, Dr. Weitz described the bonding between the child and her foster parents in a more positive light: the foster parents provided care supplies for the child at the time of the evaluation, they played with the child, their interactions "were a little bit more stimulating and educational," they provided good supervision, the child sought physical contact and interaction with them, the child was more expressive and playful, she expressed a noticeable preference for their company over the toys, she was concerned when the foster parents left the room, she "asked for mommy a couple of times" when alone with the doctor, and her face visibly brightened when the foster mother returned.

Dr. Weitz concluded that the child had bonded to her foster parents as psychological parents but did not have a strong psychological bond to her biological mother. The doctor testified that the child would not be harmed if her relationship with the biological mother was terminated but would be harmed if her relationship with her foster parents was terminated. Dr. Weitz summarized her opinion as follows:

I believe that termination would not do more harm than good. And, essentially, would really help . . . solidify the relationship that she would not be pulled in two different directions. She'd, in my observations of [the child], she called both women mommy, and that can be really confusing to children. And she needs to just be able to focus her energies on one family and one relationship. And not, as she gets older, feel any kind of guilt or anxiety living apart from her birth mother.

 

So, I think that by severing the ties now, when she's young enough to not be able to cognitively completely understand what's going on, she will not suffer harm.

 

In his decision, the trial judge accepted the doctor's unrefuted conclusions, and he reiterated the child's need for permanency. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012) (finding sufficient evidence to support prong four in the opinion of an expert psychologist who concluded that the children had stronger ties to the foster parents than to the biological parent); In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999) (an appellate court defers to the trial court s assessment of expert evaluations). The judge considered the mother's request for more time to overcome her deficits but concluded that there was no foreseeable prospect that additional time would make a difference.

Because "substantial and credible evidence on the record" supports the Family Part's judgment, F.M., 211 N.J. at 448, we reject the mother's arguments on appeal and affirm the judgment terminating her parental rights.

Affirmed.

1 On June 29, 2012, the Governor signed into law A-3101, reorganizing the Department of Children and Families and renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.