NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. V.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,1

Plaintiff-Respondent,

v.

V.S.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF E.M.S.,

Minor.

______________________________________

January 30, 2014

 

Submitted September 18, 2013 Decided

 

Before Judges Waugh, Nugent and Accurso.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-91-11.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Markis M. Abraham, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief).

 

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, E.M.S. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).

 

PER CURIAM

V.S. appeals from a June 4, 2012 final judgment terminating her parental rights to her son Earl.2 She contends that the Division failed to prove by clear and convincing evidence the four prongs of N.J.S.A. 30:4C-15.1, and thus the court erred in terminating her parental rights. We disagree and affirm.

Earl was born on January 28, 2010. When Earl was two months old, the Division received a referral from the Cliffside Park Police Department reporting that V.S. had called 9-1-1 to report that her sister was assaulting her in a domestic dispute. Both Earl and the sister's two young children were present. After they were brought to the police station, V.S. and her sister threatened one another with physical harm and traded accusations of narcotics dealing. V.S.'s sister accused her of selling marijuana out of Earl's diaper bag. V.S. admitted to the Division worker who responded to the police station that she had used and sold marijuana in the past, but had not done so since being placed on probation for riding in a stolen car in 2008.

At the time of that first encounter, V.S. and Earl were living in a one-bedroom apartment belonging to V.S.'s mother and step-father. V.S.'s sister and her two children also resided there. V.S. told the Division worker that V.S.'s mother and sister used cocaine in the apartment, sometimes together. The Division worker reported that the apartment was cluttered and overcrowded. The Division substantiated allegations of substantial risk of neglect against V.S. based on inadequate housing and substance abuse.

Although V.S.'s plan was to live with Earl's father, he was incarcerated. Accordingly, the Division devised a safety plan whereby V.S. would submit to a substance abuse evaluation and live with a family friend, who could supervise her with Earl, until she got her own apartment. The Division promptly filed a verified complaint for care and supervision and an order was entered on March 22, 2010 placing Earl in the joint custody of his parents under the care and supervision of the Division. V.S. was ordered to undergo a substance abuse evaluation and submit to random drug screens.

During the intake interview for her evaluation, V.S. admitted to using marijuana approximately three times a month both before and after giving birth to Earl. She denied any substance abuse problem or that treatment was necessary. Because V.S. met the DSM IV criteria for substance abuse, the Division referred her for treatment. In April, two Division workers encountered V.S. smelling strongly of marijuana at her mother's home. They were unable to arrange a drug screen, and a field worker sent to conduct an on-site screening later that day was unable to locate her. V.S. submitted to a screen three days later, which was negative.

The safety plan put in place by the Division was not successful. In early April, the friend with whom V.S. and Earl lived reported that V.S. was leaving Earl unattended on a countertop and feeding him inappropriate foods. Although the Division had purchased a crib for Earl, V.S. had him sleeping in bed with her. The friend complained that V.S. was also ignoring Earl's nighttime needs, forcing the friend or another family member to get up to change his diaper and put him back to sleep. The friend further reported that V.S. was unable to provide diapers and formula for Earl, relying on the friend's family to support her child.

The Division met with V.S., who advised that she was having difficulty obtaining employment. She was without a high school diploma and could not leave Earl unattended to search for work. V.S. told the caseworker that her plan was to obtain her G.E.D. and to move back in with Earl's father upon his release from jail. They agreed on a plan in which V.S. would contact the WIC program for more formula, the Labor Workforce program for assistance in obtaining employment and childcare, and enroll in a G.E.D. program. V.S. was also required to adhere to her friend's house rules and to follow a daily schedule to establish a routine for feeding, bathing, and otherwise caring for Earl.

The following day, the friend advised the Division that she was no longer willing to supervise V.S.'s care of Earl because V.S. refused to adhere to the house rules or follow the schedule devised for Earl's care, and continued to have him sleep with her instead of in his crib. The Division substantiated allegations of risk of physical injury and the court entered an order on April 8, 2010 placing Earl in the custody of the Division. In a supplemental order, the court concluded that Earl's removal was necessary to avoid ongoing risk to his health and safety. V.S. waived her right to a fact finding hearing and stipulated to using marijuana when Earl was in her custody. The court ordered her to attend a psychological evaluation, attend substance abuse treatment, and submit to random drug screens.

The Division ruled out the friend as a possible placement for Earl because the friend's health problems prevented her from leaving home to attend parenting classes or be fingerprinted. Instead, Earl was placed in a Division-approved resource home. At a meeting following Earl's placement in foster care, V.S. expressed her understanding that Earl had been removed because of her failure to adhere to the house rules and schedule formulated by her friend. She admitted to leaving Earl on countertops and that she had smoked marijuana in March. V.S. also admitted dipping her finger into tomato sauce and iced tea to let ten-week-old Earl try it "so that he can get use[d] to it."3 V.S. and the Division subsequently agreed that she would begin a G.E.D. program, work with Team Management to obtain employment, continue substance abuse treatment, enroll in parenting classes, and submit to a psychological evaluation. The Division provided V.S. bus passes to facilitate her ability to attend services.

Dr. Alison Winston, Ph.D., performed a psychological evaluation of V.S. in May 2010. V.S. related a history of domestic violence in her family and between her and Earl's father, A.M.4 She also reported that she had been diagnosed with bipolar disorder and prescribed medication when she was incarcerated at the age of eighteen. V.S. stated that she had discontinued medication and treatment upon her release because she suspected that she had been misdiagnosed. Dr. Winston concluded that defendant had a tendency to minimize the significance of her illegal activity and was oblivious to the negative effect of her substance abuse on her parenting abilities. Dr. Winston related that V.S. said of Earl, "[e]ven though I was high, I was still able to take care of him." Dr. Winston noted V.S.'s poor judgment in turning to drugs to make money and cope with stress and expressed concern that V.S. put her own needs above Earl's. She also noted her concern over the long history of conflict, and occasional violence, in V.S.'s relations with her family and Earl's father. Although noting that V.S. was at low risk of engaging in physical child abuse, Dr. Winston recommended that Earl not be returned to V.S.'s care in the foreseeable future. Instead, she recommended that V.S. be allowed unsupervised visits so long as she continued to pursue the drug treatment and other services being provided by the Division.

V.S. never achieved the goals of her drug treatment program. Although she complied with the program's requirements and consistently received negative screens from April through July 2010, she tested positive for cannabinoids in August and admitted to using marijuana while visiting old friends. In October, V.S. again relapsed. In December, after missing four weeks of drug treatment, V.S. told a caseworker that she thought it best for her mother to adopt Earl because she had lost the will to do what was necessary to achieve reunification within the Division's timeframe. V.S. was discharged from her treatment program in February 2011 after testing positive for cocaine.

At a permanency hearing in March, the court accepted the Division's plan of termination of parental rights followed by adoption. The Division filed its complaint for guardianship in May 2011.

V.S. did not again attempt drug treatment until after the date for the guardianship trial had been set. She also failed to achieve the remainder of the objectives identified as necessary to achieve reunification with her son, with the exception of completing parenting classes. V.S. began her G.E.D. program in May 2010 and received glowing reviews from her teacher, but did not pass the exam in August. Although repeatedly expressing her intention to retake the portions she failed, she had not done so at the time of trial in April 2012.

V.S. likewise failed to complete individual or group therapy at Audrey Hepburn Children's House. Her counselors described V.S. as perceiving herself as a self-sacrificing parent but failing to come to terms with her self-absorbed and risky parenting practices. They found her emotionally dependent on Earl's father, and their emotionally abusive relationship, and that she had put maintaining that dependence over the safety and needs of her son. V.S.'s counselors recommended emotional regulation strategies to help her tolerate distress and act with better parental judgment. V.S. attended sessions regularly between August and November 2010, but then failed to attend at all between November and January 2011. She attended three sessions after a court hearing in January, but discontinued her therapy completely in April. V.S. only resumed attending sessions in the weeks before the trial. She never participated in the domestic violence counseling the Division offered.

V.S. failed to obtain stable employment during the two years that this matter was pending, and never managed to obtain a place where she and Earl could live together. After being asked to leave her friend's home in April 2010, V.S. returned briefly to her mother's apartment. She then lived with her aunt until July when she abruptly moved out. V.S. went back to her mother's home, with short stays elsewhere, until May 2011, when she reported living in her own apartment paid for by a male friend. In July, V.S. moved in with Earl's father, although she acknowledged that Earl would not be safe with him. V.S. was able to obtain employment in a barbershop for about seven months, but was discharged after allegedly attacking customers. She reported getting another job at a restaurant but was unemployed at the time of trial.

When the Division first became involved with this family, Earl's father, A.M., was in the Hudson County jail on a violation of probation stemming from marijuana use.5 The Division caseworker who met with him at that time reported that he had behaved oddly, appearing uninterested in the circumstances of the Division's involvement. He denied paternity and expressed reluctance at becoming involved in the matter. Following his release, the Division scheduled paternity tests on three separate occasions before he finally submitted to one in August 2010, which confirmed that he was Earl's father.

Psychological evaluations conducted in the course of this case revealed that he had no insight into the negative effect of his drug use on his ability to act as a parent. Moreover, testing suggested an elevated risk of engaging in parenting practices shown to contribute to maltreatment of children. After those tests, A.M. told the psychologist conducting a bonding evaluation, Dr. Elizabeth M. Smith, Psy.D., that he would deal with misbehavior by placing the child in a cold shower. When Earl started to cry during the evaluation, A.M. ignored him, telling the evaluator "Give him fifteen minutes and he'll be ok."

A.M. told Dr. Smith in an evaluation conducted shortly before trial that he had thrown a small television at V.S.'s abdomen in June 2009 because "she didn't want to go and open the door." When asked whether he would have done so if he knew V.S. was pregnant, A.M. answered in the affirmative. Dr. Smith concluded that A.M.'s intellectual capacity was impossible to gauge given his unusual behavior during the examination, and that he "presented as a disturbed young man who appeared to be experiencing the onset of a serious psychiatric disorder, most probably Paranoid Schizophrenia or Psychotic Disorder."

V.S. reported to Dr. Smith that she first used marijuana at eighteen with A.M., and that, over the course of two years, her use became habitual, "almost every day." V.S. reported that A.M. had a severe substance abuse problem, and attributed at least two of her relapses to an attempt to cope with the stress of their relationship. V.S. also revealed several instances of domestic violence between them. In addition to the incident with the television, V.S. reported that A.M. had punched her when she was fifteen weeks pregnant and head-butted her through a door. She fled and was found unconscious on the street by paramedics after she had passed out as a result of an anxiety attack. A few months later, V.S. and A.M. were arguing over an iPod. V.S. threw the device at A.M., striking him. In another instance in February 2011, V.S. struck A.M. after he called her a "whore," resulting in him striking her with a closed fist.

V.S. consistently acknowledged the risks resulting from her relationship with A.M. to both herself and Earl, saying to a therapist when A.M. was incarcerated "I know we can't be together, but something always pulls me back." At the time of trial, V.S. was living with A.M. and again pregnant with his child. During the pendency of this matter, V.S. was also arrested for shoplifting, receiving stolen property, and prostitution, as well as a violation of probation.

Dr. Smith testified at trial that V.S. presented as an impulsive young woman with poor judgment who had not yet established herself as an adult. She exhibited a tendency to blame others for her problems and an unwillingness to accept responsibility. Dr. Smith found that V.S. minimized the extent of the violence in her relationship with her family and A.M. and failed to appreciate its harmful effects. The doctor opined that V.S. had difficulty putting Earl's needs ahead of her own impulses and did not expect that to change in the short term. Dr. Smith testified that V.S.'s actual reunification plan was for Earl to be placed with her mother so that she could have access to him. The doctor found that V.S. is subject to periods of intense irritability and fluctuating mood, and that she acts out her anger physically. Dr. Smith could not predict whether V.S. would be capable of making any meaningful change in the long term.

She testified that Earl certainly recognized V.S., who acted appropriately during the bonding evaluation, but that there "was not the degree of trust and comfort that you might expect." In response to a question from the court, Dr. Smith testified that the Division's failure to place Earl with foster parents who wished to adopt him should not serve to delay a decision regarding termination. She stated that Earl was at a sensitive moment in terms of attachment and needed someone he could rely on. Dr. Smith observed that Earl appeared more attached to the caseworker than to V.S. Because she believed that V.S. was not capable of becoming an adequate parent in the near term, Dr. Smith recommended that termination not be delayed and instead that Earl be freed for adoption. Dr. Smith concluded that severing his relationship with V.S. would not harm Earl and that terminating her parental rights would provide him "a much better chance [of having] a stable upbringing and growing up to be a happy and healthy adult."

No bonding evaluation was conducted with Earl's foster parents because they had not expressed a desire to adopt him. The Division explored the prospect of a relative placement with V.S.'s mother, but rejected it because the Division had previously substantiated abuse and neglect charges against her. The Division also explored other options for relative placement, including placing Earl with his paternal grandmother, paternal aunt, maternal uncle, and maternal aunt. All of these options were eventually ruled out after further investigation. Although Earl's paternal grandmother sought administrative review, she was again ruled out because she was living with her husband who was on parole at the time of the inquiry. The grandmother provided additional prospective relatives located in Greece and the Dominican Republic. The Division sent out International Requests to both countries in February 2012, but had not received any response at the time of trial.

A Division caseworker testified at trial that the Division had identified a permanent home for Earl and that the Division would soon begin that transition. The caseworker noted Earl had certain developmental delays necessitating early intervention, which the Division hoped to accomplish by facilitating his adoption.6

V.S. testified at trial that Earl's initial placement was as a result of her friend asking V.S. to leave her home and claimed the friend had a long-standing vendetta against her entire family. She attempted to minimize the domestic violence between herself and A.M., characterizing the domestic violence incident in which A.M. threw a television at her as a mere accident. V.S. also denied feeding Earl inappropriate foods and placing him on high countertops without supervision. She acknowledged failing to complete the steps necessary to regain custody of her son and admitted that her current plan for the future was the same one she had put forward two years prior. V.S. also testified that although she was living with A.M., she did not believe that Earl would be safe with him.

After reviewing the established law governing a guardianship proceeding, the constitutionally protected rights of parents, and the parens patriae responsibilities of the State, the judge reviewed the testimony in the context of the four prongs of the best interests standard of N.J.S.A. 30:4C-15.1. The judge found that the Division readily satisfied the four prongs of the best interests standard by clear and convincing evidence. In a lengthy written decision, the judge detailed how V.S. had harmed Earl by essentially, and repeatedly, abandoning his care to others and placing him in situations in which his health and well-being were at risk.

The judge found that she had been unable or unwilling to remediate the harm despite numerous opportunities and ample time to do so. The judge found that V.S. remained emotionally and financially dependent on A.M., even though he posed an ongoing risk to Earl. He found V.S.'s testimony "inconsistent with much of the evidence presented" and consistent with Dr. Smith's conclusion that she projects blame on others and takes no responsibility for her own conduct.

The judge found the Division's caseworker to be a very credible witness, knowledgeable about the case and sincerely interested in its outcome. He found that the Division provided numerous appropriate services to assist V.S. in addressing her drug problem and the violence in her family relationships to no avail. The judge further found that the Division made good faith efforts in considering several relatives for placement, all of whom were ruled out, and acted reasonably and appropriately in placing Earl in a non-relative resource home. The judge rejected Kinship Legal Guardianship because there was no suitable relative available to adopt Earl. He concluded that there were no alternatives to termination.

In considering whether termination of parental rights would do more harm than good, the judge found that the evidence "strongly shows that termination rather than reunification is the appropriate solution in this case." The judge found that V.S. had not engaged in therapeutic services to address her underlying emotional problems, had not demonstrated insights into ongoing domestic violence, and had failed to demonstrate an ability to maintain safe and secure housing and stable employment. He found credible and persuasive Dr. Smith's unrebutted testimony that Earl was not bonded to V.S. and that severing Earl's relationship with V.S. would not cause him lasting harm.

The law governing termination of parental rights is well settled. The standards are codified and set forth in a four-

prong test. N.J.S.A. 30:4C-15.1a. Termination is

permissible only if the Division presents 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 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.

 

[Ibid.]

The statute provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999).

Our review of the trial court's application of these standards to the facts of record is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472

(2002)). Even where the appellant "allege[s] error in the

trial judge's evaluation of the underlying facts and the

implications to be drawn therefrom," deference must be afforded

unless the court "went so wide of the mark that a mistake must

have been made." N.J. Div. of Youth & Family Servs. v. M.M.,

189 N.J. 261, 279 (2007) (citations omitted).

Our review of this voluminous record convinces us that the judge's findings are amply supported by the record. V.S.'s contention that the judge's findings are not based on adequate or credible evidence in the record is plainly inaccurate. The trial judge found that V.S. initially endangered her ten-week-old son by her drug use and poor judgment in leaving him unattended on a countertop and other places of similar height without fear that he might roll off and be injured. Her inability to perceive the risks to him posed by her drug use and her refusal to put his needs before her own impulsive desires put his health and well-being at risk and resulted, as the trial court found, in her continually abandoning his care to others.

V.S.'s failure to finish high school, limited resources, drug use, and the history of domestic violence in her family posed considerable challenges to her becoming an effective parent who could both protect and provide for her child. Despite the efforts of the Division, V.S. failed to avail herself of therapy, drug treatment, and assistance in obtaining her G.E.D., all of which were essential to achieving her goal of reunification with her son. Instead, she largely abandoned that goal, deciding that she could not achieve it within the Division's timeframe and that her mother could adopt Earl while she worked toward reunification at a more comfortable pace.

V.S.'s failure to see Earl's need for permanency, rather than the Division's time goals, as the driver in this process underscores the expert's conclusion that she is an impulsive young woman with poor judgment not prepared to accept the responsibility of caring for her son. These facts, coupled with her inability to separate from A.M. despite acknowledging the risks he poses to Earl, convinces us that the trial court was correct that there are no alternatives to termination and that termination of V.S.'s parental rights will not do more harm than good.

Affirmed.

 

 

1 In June 2012, the Department of Children and Families was reorganized and the Division was renamed the Division of Child Protection and Permanency. L. 2012, c. 16. We refer to it as the Division in this opinion.

2 This is a fictitious name.

3 In his decision, the trial judge noted that Earl's foster mother reported shortly after Earl was placed with her that he had difficulty swallowing. Earl's pediatrician advised that the problem was a result of the child's stomach being inflamed either by caffeine or some other substance fed to him.

4 A.M.'s parental rights were terminated in the same guardianship proceeding. He has not appealed.

5 Although A.M. has not appealed the judgment terminating his rights, we include facts relating to him because the expert opinion as to V.S. was based, in part, on her decision to continue her relationship with him.

6 Pursuant to R. 2:6-11(f), the Division advised in January 2013 that Earl was placed in a Division-approved selective home in April 2012, and that the family wished to adopt him.