NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. D.H.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6154-10T3

A-6155-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

V.

D.H.F. AND S.R.S.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP OF

Z.H.F., A MINOR.

February 25, 2013

 

Submitted January 15, 2013 - Decided

 

Before Judges Reisner, Harris and Hoffman.

 

On appeal from the State of New Jersey, Chancery Division, Family Part, Morris County, Docket No FG-14-63-10.

 

Joseph E. Krakora, Public Defender, attorney for appellant D.H.F. (Thomas G. Hand, Designated Counsel, on the brief).

 

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

 

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

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

In these consolidated appeals, defendants D.H.F. and S.R.S. appeal the July 15, 2011 judgment of guardianship entered by the Family Part terminating their parental rights to their then four-year-old daughter, Z.H.F. (Zoey).1 Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division)2 failed to prove by clear and convincing evidence the requisite statutory factors to establish that Zoey's best interests would be served by terminating their parental rights. The Law Guardian for Zoey supports the termination of defendants' parental rights.

In her forty-five page written opinion, Judge Mary Gibbons Whipple 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. After careful review, we conclude the trial judge appropriately applied the controlling legal principles to the lay and expert evidence of record. Accordingly, we affirm.

I.

We derive the following facts from the trial record. S.R.S. has a long history of substance abuse and mental illness. S.R.S. executed an identified surrender of her parental rights to a son in 2004, after the Division filed a guardianship complaint against her. S.R.S.'s relationship with D.H.F. began while he was still living with his wife, A.M.F., and their four children, C.F. (Clint), M.F. (Max),3 M.F. (Mason), and A.F. (Amy). Following A.M.F.'s incarceration in March 2005 for a bank robbery, D.H.F. moved in with S.R.S. At that time, he sent Clint (then age sixteen) to Belgium to live with the child's paternal grandmother, he sent Max (then age five) to live with the child's maternal grandmother, and he sent the two youngest children, Mason (then age four) and Amy (then age three) to live with their paternal aunt in Jamaica. In December 2006, S.R.S. gave birth to Zoey.

In November 2007, the Division substantiated S.R.S. for neglect of Zoey after she went on a three-day alcohol and cocaine binge. In February 2008, D.H.F. took the children to Belgium to visit his mother.4 They returned in April 2008 and resumed living with S.R.S. While in Belgium, the children did not attend school.

Upon his return, the Division advised D.H.F. that he should not leave his children alone with S.R.S. The Division also presented D.H.F. and S.R.S. with a safety protection plan which precluded S.R.S. from having unsupervised contact with the children. D.H.F. and S.R.S. both refused to agree to the plan, arguing that S.R.S. should be able to care for the children while D.H.F. went to work.

In June and July 2008, the Division received reports of domestic violence and substance abuse on the part of S.R.S. and D.H.F., including a 911 call received by the Wharton Township Police. As part of its investigation, the Division interviewed the children. Amy stated that "mama punched daddy" and was "acting crazy." Mason made a similar statement. D.H.F. also claimed that S.R.S. threw pots with food, as well as clothing, out of a window. As a result, the Division substantiated S.R.S. for neglect.

On July 2, 2008, D.H.F. and the children moved to a homeless shelter, with the Division's assistance. In mid-July the shelter expelled D.H.F. for one day because of intoxication. On July 24, 2008, the Division obtained an order permitting the Division to remove the children if D.H.F. either returned to S.R.S.'s home or tested positive for alcohol again. After D.H.F. tested positive for alcohol again, the shelter told him to leave permanently on August 3, 2008.

Five days later, the Division removed the three children on an emergency basis, placing Amy and Mason with their maternal grandmother and Zoey in a foster home. Zoey has remained in foster care since that time. D.H.F. then went to live with S.R.S. He failed to show up for two different appointments for a psychological evaluation in August 2008. A.M.F. was released from prison that month.

On October 23, 2008, D.H.F. stipulated to neglect of Zoey in failing to adhere to the rules of the homeless shelter. Upon his successful completion of an intensive outpatient substance abuse treatment program in December 2008, the Division closed his case.

While undergoing substance abuse treatment in late 2008 and early 2009, S.R.S. admitted to relapsing on cannabis and cocaine and that she "slipped with rum in November twice." She also exhibited inconsistent attendance in the visitation program arranged for her by the Division, which led twice to suspension of her participation in the program. In March 2009, S.R.S. was hospitalized for psychiatric reasons after she contacted the police while intoxicated, threatening to jump off a roof. Upon admission to the hospital, she had a blood alcohol level of 0.315 percent.

A Family Enrichment Program (FEP) report in April 2009 stated that while D.H.F. had attended the majority of his supervised visitations, he missed several visits, blaming the program for the absences. The report noted that D.H.F. had made minimal progress in maintaining sobriety and had inconsistent attendance in therapy.

In July 2009, D.H.F.'s other daughter, Amy, then five years old, alleged that her older brothers had sexually assaulted her at her maternal grandmother's house, that D.H.F. had shown them how to do this and that D.H.F. had digitally penetrated her in the past. D.H.F. denied these allegations and was not charged. After an investigation, the Division substantiated Amy's allegations of sexual abuse in September 2009. In addition, there was an allegation by the children that D.H.F. had hit them with a belt. D.H.F. admitted threatening the children with a belt, but denied hitting them.

In May 2010, S.R.S. sustained a fractured hip after jumping from her roof, while intoxicated, in an apparent suicide attempt. S.R.S. testified that "if my daughter was home I would have never been intoxicated and I would have never jumped off the roof."

In September 2010, the foster parents with whom Zoey had been living since August 2008, Mr. and Mrs. W., asked DYFS to remove her from their home. Although they wanted to adopt her, the foster parents were emotionally frustrated with the delay and uncertainty involved in the process. The Division then placed Zoey with another foster family. However, Mr. and Mrs. W. remained in contact with Zoey's case worker. When they learned that Zoey was not doing well in her new foster home, Mr. and Mrs. W. notified DYFS that they had made a mistake and were now committed to adopting her. Zoey returned to their custody in February 2011.

In November 2010, the Division learned that D.H.F. had been terminated from his employment as a taxi driver and was living in a boarding house with a shared bathroom. Amy made another allegation of sexual abuse against D.H.F. in November 2010. The allegation was substantiated by the Division but the prosecutor s office declined to prosecute.5

In February 2011, S.R.S. was involuntarily hospitalized because of mental health concerns and an alcohol relapse. S.R.S. testified that she became pregnant in December 2010 after she had sex with D.H.F. She then obtained an abortion. She attributed the relapse to the pregnancy and resulting abortion.

At trial, the Division's expert, Dr. Rachel Jewelewicz-Nelson, Ph.D. described S.R.S. as a psychologically fragile individual who remains at high risk for emotional breakdown and substance abuse relapse. Thus, placing a child in S.R.S.'s care would put the child at risk of enduring harm from emotional and physical abuse and neglect. She also found S.R.S. emotionally incapable of mitigating the harm that would result from removing Zoey from the custody of her foster parents because she is not attuned to the child's emotional needs and also resents the foster family.

Dr. Jewelewicz-Nelson testified that D.H.F. has a history of unstable relationships and living arrangements, that he lacks the flexibility and creativity crucial to successful parenting, and that he does not understand a child's need for stability and constancy as witnessed by his moving the children from place to place and person to person. Dr. Jewelewicz-Nelson further said D.H.F. does not have the capacity to make a long-term commitment to a child and that Zoey does not view him as her psychological parent.

Dr. Alison Winston, Ph.D. testified on behalf of the Law Guardian and described the foster parents as Zoey's psychological parents. She said that they were committed to the adoption and that Zoey would suffer severe and enduring psychological harm if she were separated from them. Dr. Winston acknowledged that Zoey would experience some emotional harm if D.H.F.'s parental rights were terminated; however, that emotional upset would not be severe and enduring and would be easily mitigated by Zoey's strong bond with her foster parents.

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).

Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following 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.

"The four criteria enumerated in the best interests 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.

Termination of parental rights permanently cuts off the relationship between children and their biological parents. . . . When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. . . . The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child.

 

[In re Guardianship of J.C., 129 N.J. 1, 10 (1992).]

 

The Supreme Court has recognized, however, that children have a "paramount need" for "permanent and defined parent-child relationships." Id. at 26. There are "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay." In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999).

"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) (internal quotation marks and citation 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.

A. The First Prong of the Best Interests Test.

To satisfy the first prong of the best interests standard, the harm shown by the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Generally, the proofs "focus on past abuse and neglect and on the likelihood of it continuing." N.J. Div. of Youth & Family Servs., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (quoting J.C., supra, 129 N.J. at 10).

The record contains ample evidence to support the court's determination that both parents' behavior exposed Zoey to harm. In November 2007, the Division substantiated S.R.S. for neglect of Zoey after she went on a three-day alcohol and cocaine binge. The Division advised D.H.F. not to leave the children alone with S.R.S., yet he did so in 2008. A few months later, domestic violence and substance abuse by S.R.S caused D.H.F. and the children to leave home and enter a shelter. Within a few weeks, D.H.F.'s drinking forced them out of the shelter, and caused the Division to remove the children.

Dr. Jewelewicz-Nelson found that S.R.S. had significant psychological problems that precluded her from providing safe and stable parenting, and noted that her interaction with Zoey was tinged with anger and hostility. Thus, she concluded that placing Zoey in her care would put the child at risk of enduring harm. Moreover, S.R.S.'s own expert, Dr. James Reynolds, Ph.D., testified that she would need an extended period of treatment before reunification could take place.

Dr. Jewelewicz-Nelson testified that D.H.F. failed to protect Zoey from S.R.S.'s instability and neglect, and expressed concern that D.H.F. was considering having A.M.F. serve as a caretaker for Zoey. Not only was A.M.F. not sufficiently familiar with Zoey to serve in this role, she had stated that she did not want to be a placement option. Dr. Winston likewise found D.H.F. incapable of providing a stable environment for Zoey due to his impaired parenting ability and his desire to place Zoey with A.M.F.

While the statute does not specifically require a parent to present a detailed child care plan, the lack of one is nonetheless a factor for consideration under prong one. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 282-83 (2007) (holding that it was imperative that the father provide a daycare plan that could guarantee that the child would not be left alone with the mother to protect the child from harm). The opinions of Dr. Jewelewicz-Nelson and Dr. Winston both strongly supported the trial court's rejection of D.H.F.'s plan to have A.M.F. care for Zoey. We are satisfied the record contains clear and convincing evidence to establish prong one.

B. The Second Prong of the Best Interests Test.

The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.

The trial court made the following well-supported findings as to prong two:

[S.R.S.] has not demonstrated an ability to ameliorate the harm that resulted in the child's placement in foster care. While she has made progress, her mental health issues and substance abuse issues have not been adequately managed to insure safety of [Zoey.]

 

. . . .

 

As both Dr. [Jewelewicz-]Nelson and Dr. Winston have noted, [D.H.F.] does not fully understand the importance of bonds of attachment between children and their parents and this is [evidenced by] his statements that [Zoey] could reside with him or A.M.F. [D.H.F.] has not consistently parent[ed] any of [his] children and it is not evident that this will change if he were to gain custody of [Zoey.] He is still not raising any of his children. The harm is still present and a delay of a permanent placement will add to the harm already inflicted.

 

The record contains ample evidence to support the finding that prong two was satisfied as applied to S.R.S. She had a history of substance abuse and had been diagnosed with bi-polar disorder. In late 2007, neglect was substantiated because she went on a drug binge, and in the summer of 2008, because of a domestic violence incident while she was intoxicated.

S.R.S was hospitalized in March 2009 after threatening to commit suicide. In May 2010, she sustained serious injury in a suicide attempt. In February 2011, S.R.S. was again hospitalized after an alcohol relapse because of concerns over her mental health.

Although S.R.S. claimed she was drug and alcohol free at the time of trial, her history of threatening harm to herself and others is clear from the record, most recently a few months prior to trial. Her own expert testified that she was not ready at the time of trial to assume care of Zoey. "[P]arents dabbling with addictive substances must accept the mandate to eliminate all substance abuse." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011).

In addition, Dr. Jewelewicz-Nelson testified that S.R.S. had very significant psychological problems and disorders that prevented her from providing stable and safe parenting. She believed it unlikely that S.R.S.'s psychological issues would improve in the near future. She concluded that placing a child in S.R.S.'s care would put the child at risk of emotional harm, physical abuse, and neglect.

The record established that D.H.F. made minimal progress in maintaining sobriety and that his attendance at therapy had been inconsistent. While he did obtain his own apartment shortly before trial, D.H.F. told the Division in early 2010 that he had been living "here and there," and the record contains no evidence as to the suitability of the apartment for child care. Moreover, he exposed Zoey to S.R.S. in 2008 despite a Division case plan to the contrary. His plan to rely on A.M.F. for child care reflects poorly upon his ability to provide a safe and stable home for Zoey. Dr. Winston found that D.H.F. had an impaired parental ability, and narcissistic and exploitive traits. D.H.F.'s own expert, Dr. Susan Herschman, Psy.D., agreed with the narcissistic characterization.

Moreover, Dr. Jewelewicz-Nelson and Dr. Winston both said that D.H.F. would be unable to mitigate the harm facing Zoey should she be separated from her foster parents. Further, the Division's testing revealed that Zoey's development had been affected while in D.H.F.'s custody based on developmentally delayed communication skills. We are satisfied the record contains clear and convincing evidence to establish prong two.

C. The Third Prong of the Best Interests Test.

The third prong requires the Division to 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(c). Reasonable efforts will vary with the circumstances. New Jersey Div. of Youth & Family Services v. F.H., 389 N.J. Super. 576, 620 (App. Div.), certif. denied, 192 N.J. 68 (2007). This factor requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354.

Whether D.H.F. and S.R.S. successfully completed the services offered is not relevant to whether the third prong has been met. The Division's efforts should not be measured by their success. D.M.H., supra, 161 N.J. at 393.

The record clearly demonstrates that the Division offered S.R.S. and D.H.F. an "array of services[,]" including evaluations, treatment, counseling, and parenting programs, M.M., supra, 189 N.J. at 285, and that the services offered satisfied the third prong. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 441 (App. Div. 2009) (third prong satisfied where Division provided substance abuse treatment, parenting skills classes and mental evaluations).

As for D.H.F.'s claim concerning housing, the Division did find housing for him in the shelter, which he lost due to his own misconduct. The record fails to indicate any further request from D.H.F. for housing assistance. We are satisfied the record contains clear and convincing evidence to establish prong three.

D. The Fourth Prong of the Best Interests Test.

The fourth prong, requiring proof that termination of parental rights will not do more harm than good, "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986). That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (2005).

A concomitant finding of parental fault also is required. N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 74 (App. Div. 2010). However, where "a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and the child has bonded with the foster parents who have provided a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.

In establishing this prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. J.C., supra, 129 N.J. at 19. "The question . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with the foster parents." K.H.O., supra, 161 N.J. at 355.

Division caseworker Rose Arackathra testified that the foster family meets all of Zoey's needs, and stated that "she loves it. That's her home." Dr. Jewelewicz-Nelson testified that the foster parents had become Zoey's psychological parents and that Zoey would suffer psychological harm if that relationship were severed. Dr. Winston found that Zoey had a strong and secure emotional attachment to her foster parents, and that the foster parents would be able to "easily mitigate[]" any emotional harm if D.H.F.'s parental rights were terminated. Moreover, Dr. Winston said that D.H.F. did not have the capacity to mitigate any harm Zoey would suffer as a result of being removed from the foster family. Thus, the record clearly contains the requisite expert testimony.

In addition, the Division must prove that the parent's actions or inactions contributed to the forming of that bond between the child and the foster parents, and that "the harm caused to the child from severing that bond rests at the feet of that parent." D.M., supra, 414 N.J. Super. at 80. Here, defendants' actions caused Zoey's removal which led to the forming of the bond between Zoey and the foster parents. It is undisputed that the foster parents have provided a safe and nurturing environment and that the severing of that bond would cause her harm.

Dr. Jewelewicz-Nelson testified that S.R.S. would be unable to mitigate the harm to Zoey should the child be removed from her foster parents, and that placing Zoey with S.R.S. would create an unacceptable risk of harm. Although Dr. Reynolds concluded that severing the bond between Zoey and S.R.S. would result in severe and enduring harm to the child, the court was free to accept the opinions of Dr. Jewelewicz-Nelson and Dr. Winston rather than Dr. Reynolds's opinion. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).

S.R.S. claims that the emotional harm to Zoey from being removed from the foster parents was not sufficient to warrant termination of her parental rights. However, Dr. Jewelewicz-Nelson testified that S.R.S. was not capable of mitigating the harm that would result should the event take place. Moreover, separating Zoey from her foster parents would expose her to the "danger and instability" of S.R.S.'s home, and disrupt any permanency in her life. See M.M., supra, 189 N.J. at 287. A child's need for permanency and stability is an important consideration. Id. at 281. We are satisfied the record contains clear and convincing evidence to establish prong four.

Judge Whipple did not err in concluding that the best interests of Zoey requires a safe, permanent home and the opportunity to be adopted by the foster parents who have proven their ability to provide the care and nurture she needs. Affirmed.

 

 

 

1 To protect the confidentiality of the parties, the names of all of the children referenced in this opinion are fictitious.

2 On June 29, 2012, the Governor signed into law A-3101, which

reorganized the Department of Children and Families, including

the renaming of the Division of Youth and Family Services as the

Division of Child Protection and Permanency. L. 2012, c. 16,

eff. June 29, 2012.

3 D.H.F. is not the biological father of Max. When questioned about him during a psychological evaluation, D.H.F. said "I treat him like my own. Yes he knows me as his father and that is how it is going to be."

4 Before making the trip, D.H.F. divorced A.M.F., who was still in prison. He claimed the only reason for obtaining a divorce was that his attorney advised him that he could not leave the United States with the children if he were still married.

5 As part of a January 4, 2011 psychological evaluation, A.M.F. stated that Amy had told her the previous week that she "lied about everything, that Daddy didn't do anything, that he only washed her."