DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.L.U.

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NOT FOR PUBLICATION WITHOUT THE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 CHILD

PROTECTION AND PERMANENCY,

Plaintiff-Respondent,

v.

S.L.U.,

Defendant-Appellant,

and

M.W.,

Defendant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.R.U.,

Minor.

__________________________________

March 28, 2016

Submitted February 8, 2016 Decided

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-227-14.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel A. DiLella, Designated Counsel, on the brief).

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

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

PER CURIAM

S.L.U. (Sarah)1, appeals from the termination of her parental rights to her son, A.R.U. (Arnold).2 She argues the court erred by finding the Division of Child Protection and Permanency (Division) established the statutory prerequisites for termination under N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We affirm.

Arnold was born to Sarah and M.W. (Marc)3 on January 20, 2008, and placed in the custody of the Division shortly thereafter. On March 5, 2010, the Division filed a complaint for guardianship of Arnold, seeking to terminate the parental rights of both Sarah and Marc. Following a trial, the court concluded the Division failed to meet its burden for termination of parental rights. We affirmed the court's decision only with respect to prong two. N.J. Div. of Youth and Family Servs. v. S.L.U., No. A-4027-10 (App. Div. May 3, 2012) (slip op. at 26-27).

On April 17, 2014, the Division filed a second complaint for guardianship of Arnold. On September 26, 2014, the court entered default against Marc. Following trial, the court issued a written opinion finding the Division satisfied its burden of proof on all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

We discern the following facts from the record. Arnold was removed from Sarah's care on October 29, 2008, and has since remained in the same non-relative foster home. Sarah struggled to comply with services, failing to regularly attend supervised visitation with her son, a teen mothers support group meeting, and parenting classes at the Reunity House from which she was terminated in August 2009 for non-compliance. From October 2009 to December 2010, Sarah failed to confirm, missed, or arrived late to several supervised visits with Arnold at the Tri-City Peoples Corporation, and was terminated from that program in December 2010.

Following the first guardianship trial, the Division continued to provide supervised visitation for Sarah. On August 14, 2012, Sarah was granted unsupervised visitation with Arnold. However, the unsupervised visits were no longer permitted after the court learned Sarah was living with the child's grandmother who tested positive for cocaine. Additionally, Sarah "did not comply with the visitation schedule that she arranged" with the resource parent, and "did not make herself available for the parent aide service" offered to her by the Division. Sarah was again referred to individual therapy and supervised visits with Arnold. She was frequently late or missed visits with Arnold throughout 2013. In November 2013, Sarah was discharged from the Reunity House's supervised visitation program for non-compliance.

The Division also attempted to help Sarah complete a GED program and provide her with independent living services, neither of which she completed. The Division conducted family team meetings to identify the necessary support and services for reunification, and provided Sarah with transportation services. The Division assessed several of Sarah's relatives as possible placements for Arnold. Sarah's mother was ruled out because of her history of drug abuse and having an open case with the Division. The Division attempted to provide Sarah's mother with substance abuse treatment, but she did not complete the program. Multiple other potential relative resources were also assessed and ruled out, including Marc's mother, who believed that Arnold should stay with the resource parent.

Arnold's resource parent, whom he refers to as "daddy," is committed to adopting Arnold. Additionally, Arnold's resource parent was taking care of Arnold's younger sister, A.U. (whom Arnold is "very close" with) and is willing to take care of A.U. long term if necessary. Moreover, Arnold's resource parent has met Sarah, and was open to allowing her to have a relationship with Arnold following an adoption.

On May 6, 2014, shortly after the Division filed a verified complaint for guardianship of Arnold, Sarah was admitted to East Orange General Hospital (EOGH) due to a psychotic episode and was prescribed anti-psychotic medicine. Sarah was also referred to a mental health program, the East Orange Outpatient Program (EOOP), and completed the program in September 2014. Sarah was prescribed medication at the EOOP, and after briefly refusing to take it, began regularly taking another medicine with less side effects. Following the EOOP, Sarah was recommended to attend a "Step Down" program where her medication would be monitored, and to attend individual therapy. However, she did not comply with those recommendations.

The second guardianship trial commenced on September 26, 2014. Prior to trial, Sarah attended psychological and bonding evaluations with Dr. Samiris Sostre, M.D., Dr. Antonio W. Burr, Ph.D., Dr. Barry Katz, Ph.D, and Dr. Gerard A. Figurelli, Ph.D. They all testified at trial and their reports were admitted into evidence. The court also heard testimony from Jackie Moleus, a Division caseworker.

Dr. Sostre was qualified as an expert in psychiatry and testified consistently with her reports. Dr. Sostre first performed a psychiatric evaluation of Sarah on November 20, 2009, prior to the first guardianship trial, where she concluded Sarah suffered from "moderate" major depressive disorder. In September 2014, Sarah acknowledged she had "hallucinations and delusions," was admitted into a psychiatric unit, and prescribed psychotropic medications. However, Sarah did not believe she had an "underlying mental illness" and "did not appear concerned about the diagnosis that she was provided or about the symptoms she had experienced." Dr. Sostre concluded that Sarah had symptoms "most consistent with schizophrenia or possibly schizoaffective disorder," and that "[s]he will need to be treated with medications on a lifelong basis for management of symptoms." Additionally, Dr. Sostre was concerned that Sarah did not take her medication for a period of time, indicating that she may not be compliant with treatment in the future.

Dr. Sostre noted that Sarah's condition could improve with psychological treatment and medication, but that recovery from a psychotic episode usually takes between six to twelve months. Dr. Sostre concluded that while Sarah showed some signs of improvement from her schizophrenia, Sarah was not presently able to appropriately parent her children, and her prognosis to do so in the foreseeable future was poor, even if she was compliant with her mental health treatment and medication.

Dr. Burr was qualified as an expert in psychology and testified consistently with his reports. He performed bonding evaluations between Sarah and Arnold, as well as between the resource parent and Arnold. He also performed a psychological evaluation of Sarah. The evaluations occurred subsequent to Sarah's psychiatric hospitalization.

During the bonding evaluation with Sarah, Arnold referred to her as "mommy," however, he "showed himself to be in some degree of emotional and behavioral distress in her presence, and [Sarah] was unable to engage him, calm or sooth[e] him effectively at any time throughout the session." Dr. Burr concluded that Arnold "did not seem especially attached to, or related to his mother as a primary parental figure," and opined that "[Arnold] did not demonstrate positive attachment to [Sarah] during the session."

During the bonding evaluation between the resource parent and Arnold, Dr. Burr observed Arnold "appeared to be relaxed and content in the presence of his foster father, whom he called 'Daddy' throughout the observation." Dr. Burr concluded that Arnold "is attached to, and related to his foster father as a psychological parent, and as a primary parental figure in his life." Furthermore, he opined the resource parent "is able to provide [Arnold] with an adequately structured and ordered environment," and "is capable of meeting [his] need for attention, soothing, and nurturing care, and to meet [his] developmental challenges." Additionally, Dr. Burr concluded "reunification . . . with [Sarah] . . . would run the risk of major disruptions in attachment, in emotional demeanor, development and behavior [for Arnold]."

Based on Sarah's psychological evaluation, Dr. Burr found she showed "subtle signs of neurological brain dysfunction" and that her "IQ is probably about 50." He opined that Sarah "is evidently depressed, which, mixed with [her] cognitive limitations . . . makes her appear as being of diminished capacity to care for herself or for [Arnold] at this time."

Dr. Katz was qualified as an expert in psychology and testified consistently with his reports. He performed multiple psychological evaluations of Sarah, and bonding evaluations between Arnold and both Sarah and the resource parent.4

During bonding evaluations with the resource parent, Arnold referred to him as "dad" and they were "warm, supportive and highly interactive," with the resource parent being able to redirect Arnold's disruptive behavior when necessary. When speaking individually with Dr. Katz, the resource parent indicated that Arnold "acts out more" at school following visits with Sarah. He also stated that "[Arnold] will act out more at home following visits, including expressing angry and defiant behaviors," and would tell him, "[y]ou are not my real daddy." Dr. Katz determined Arnold "considers his foster father as his primary, and only, nurturing figure[]. [Arnold] demonstrates ongoing problems in functioning at the continued threat of being removed from his foster father and losing the only stable attachment he has ever known in his life."

As early as December 2012, Dr. Katz concluded Sarah's "impairment . . . that is affecting her bond [with Arnold]

. . . . can be toxic for [him] and lead to problems in coping, develop[ment] and overall functioning." In later bonding evaluations, Sarah would ignore Arnold when he "would become angry, reactive, and destructive." Other times, Arnold would ignore Sarah's attempts to calm him. Based on his observations of Sarah and Arnold, Dr. Katz noted their contact "was disruptive to [Arnold's] functioning and cause[d] him additional emotional problems."

Psychological evaluations of Sarah showed she has "little understanding of [Arnold's] emotional distress" and was "not able to meet the needs of [Arnold currently] or in the foreseeable future." Nor could she comprehend how her inconsistency with visitations was harming Arnold. The various tests Dr. Katz administered to Sarah also indicated she had "limitations in cognitive functioning relating to nonverbal abilities . . . . [and] a lack of ability to learn new skills, respond to environmental demands and comprehend [Arnold]'s needs." Dr. Katz found that Sarah's composite IQ results placed her in the bottom 0.2 percent. He also noted that Sarah "continued to be limited in her coping ability," and was "unable and/or unwilling to comply with the demands of her environment for the sake of [Arnold]."

Dr. Katz's overall conclusion and recommendation from his February 2014 report, ratified by his updated report in October 2014, was as follows

[Arnold] has continued to suffer from his lack of permanency. [He] would suffer severe and enduring harm if removed from his current foster home. [Sarah] is unable and unwilling to ameliorate this harm. [She] has refused to comply with, and has not benefitted from, the services that would have given the best chance for reunification. It is therefore recommended that [Sarah]'s parental rights be terminated so that [Arnold] may be allowed to continue to form the necessary bond and attachment with his current caretaker . . . . Lack of termination of parental rights will continue to cause ongoing harm to [Arnold].

Dr. Figurelli was qualified as an expert in psychology and testified consistently with his reports. He performed bonding evaluations between Arnold and both Sarah and his resource parent, as well as a psychological evaluation of Sarah. However, Dr. Figurelli did not review any "medical records regarding [Sarah]'s recent psychiatric illness and psychiatric treatment" prior to the evaluations.

At the beginning of the bonding evaluation between Arnold and his resource parent, Arnold repeatedly stated "I want to see my mommy." However, the resource parent "effectively and appropriately managed" Arnold's behavior during the evaluation. Arnold "consistently referred to [the resource parent] as 'dad' or 'daddy.'" Dr. Figurelli concluded

[Arnold] recognizes [his foster father] as his psychological father and has been placed in [his] care for most of his young life. [The foster father] has demonstrated his commitment to raising [Arnold] and appears to have been effective in managing [Arnold]'s behavioral issues, while accessing for him the services he has required. It is in [Arnold]'s best interest to maintain his relationship with [his foster father].

At trial, Dr. Figurelli agreed that the resource parent was Arnold's psychological father.

During the bonding evaluation with Sarah, Arnold referred to her as "mom" or "mommy" throughout the session. "[Sarah] consistently and appropriately provided [Arnold] with the general guidance, direction, and limit[ed] setting that he required." Dr. Figurelli concluded that "it is in [Arnold]'s best interest to maintain his relationship with his birth mother."

Additionally, Dr. Figurelli opined that Sarah was a viable placement option for Arnold, noting that she had custody of A.U. and K.U. prior to her psychotic episode. However, he qualified his opinion by suggesting Sarah could care for Arnold if she: (1) had an in-home parent mentor, (2) remained compliant with her mental health treatment, and (3) did not have another untreated psychotic episode. Moreover, he conceded that results of the various psychological tests administered to Sarah did not provide a valid clinical profile because of her difficulty in reading the individual test items.

The trial judge concluded the Division established all four prongs set forth in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The court found that the Division clearly and convincingly established prong one, stating

[T]he Division has made numerous and continuous efforts to provide [Sarah] with services and visitation in order to attempt to reunify her with [Arnold] . . . . [H]owever, she has been terminated from the Mommy and Me Programs and she has not been compliant with the other services offered. [Furthermore, Sarah] . . . has failed to bring [Arnold] to the doctor regarding his heart murmur.

. . . .

[Sarah] has also endangered [Arnold] by continuously placing [him] in the care of her mother, [P.U.], who suffers from substance abuse issues. [Sarah] was told that [Arnold] could not be placed in [P.U.]'s care, yet [she] ignored this, and still placed [him] in [P.U.]'s care unsupervised.

. . . .

In short, based on [Sarah]'s long history of unaddressed mental health issues, lack of compliance with services to help her learn how to care for [Arnold] and failure to adequately supervise and address [Arnold]'s behavior, this [c]ourt is firmly convinced by clear and convincing evidence, that the [Division] has satisfied prong one . . . .

. . . .

[Additionally, Sarah has] failed to provide any day to day nurturing for [Arnold] from the time of his removal to the present. Since his birth essentially, [Arnold] has lived in foster care. This failure to care for a child constitutes harm under the first prong of the best interest of the child analysis.

The court found the Division clearly and convincingly established prong two, stating

[Sarah] has admitted in [c]ourt that she has not taken her prescribed medication for her psychiatric issues, and she has also stated that she will not attend certain psychiatric programs, as she does not believe they are necessary for her. [Sarah]'s unwillingness to participate in these imperative programs . . . shows that she will not be able to eliminate the harm that has endangered her parental relationship with [Arnold].

. . . .

Because of [Sarah]'s lack of compliance and lack of desire to attend services, [Arnold]'s safety would be in danger if [Sarah] were to care for him. [She] has not remedied the dangerous situation . . . .

. . . .

This [c]ourt is convinced that delaying placement of [Arnold] would only add to the harm that he is already suffering. [Arnold] has, for the majority of his life, lived with non-relative resource placement . . . . Permanency is of utmost importance for [Arnold], who is in a stable home with [the resource parent]. Furthermore, [the resource parent] is committed to adopting him. As such, this [c]ourt finds that delaying [Arnold]'s placement would only add to the harm that he has already suffered.

The court found that the Division clearly and convincingly established prong three, stating

[T]he record indicates that the Division has made numerous and continuous efforts with regard to [Sarah] . . . . [She] has been continuously referred for services, including mental health services, Mommy and Me Programs, supervised visitation and educational assistance. Even when [Sarah] was terminated from one Mommy and Me Program, she was referred to another, so she could learn how to care for [Arnold] . . . .

. . . .

The record makes clear that there is no alternative to termination of parental rights in this case. The Division fully assessed the relative caretakers that were offered, . . . [including Marc]'s mother, who expressed that [Arnold] should remain with [the resource parent]. [The resource parent] has expressed his willingness to adopt [Arnold], and even has [Arnold]'s sister, [A.U.], in his care currently.

The court found that the Division clearly and convincingly established prong four, stating there was "no realistic likelihood" that Sarah would "be able to safely and appropriately care for [Arnold] in the foreseeable future." The court explained

[Sarah] has not fully complied with treatment for her mental health issues. She has also failed to comply with [c]ourt orders and Division services and her behavior has been harmful and disruptive to [Arnold].

[She] has never presented a viable plan for [Arnold] . . . [and] has not consistently visited with [Arnold], and when she has visited with the child, she has not shown that she can adequately care for and supervise him. [Sarah] disregarded many of the Division's attempts to provide her services to work toward reunification with [Arnold].

. . . .

There has been a strong consensus that [Arnold] does not show that he is bonded to [Sarah]. Rather, the bonding evaluations between [the resource parent] and [Arnold] show that [Arnold] views [the resource parent] as his psychological father, as defense expert Dr. Figurelli . . . [and] Dr. Katz testified, . . . [Sarah] did not exhibit the same level of care and involvement with [Arnold] . . . .

[Arnold] has been placed with [the resource parent] almost his whole life, and he deserves the permanency, which adoption affords. The record indicates that [Arnold] cannot achieve permanency with [Sarah]

. . . . If [Arnold] is legally free to be adopted, he will receive the permanency that every child deserves . . . .

The termination of [Sarah]'s . . . parental rights would certainly not result in more harm than good for the child.

Sarah appeals from the order terminating her parental rights to Arnold, dated December 16, 2014, claiming the Division failed to prove all four prongs by clear and convincing evidence.

The trial judge's fact findings will be upheld if "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We defer to the family court's credibility findings and findings of fact unless they are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth and Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

Parents have a fundamental right to raise their biological children. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, parental rights are not absolute and the State has a "parens patriae responsibility to protect the welfare of children." In re Guardianship of J.C., 129 N.J. 1, 10 (1992) (emphasis in original). "The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012).

Termination of parental rights is appropriate if the Division proves 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

. . .;

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

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

[N.J.S.A. 30:4C-15.1(a)]

The "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" F.M., supra, 211 N.J. at 448 (quoting G.L., supra, 191 N.J. at 606-07).

In the trial judge's written opinion, dated December 15, 2014, he made detailed factual and legal findings with respect to each prong of N.J.S.A. 30:4C-15.1(a), and determined the Division met each prong by clear and convincing evidence. We conclude his findings were supported by substantial credible evidence in the record. Having considered Sarah's arguments, we conclude they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). Therefore, we affirm substantially for the reasons expressed by the trial judge in his thorough and well-reasoned written opinion.

Affirmed.

1 Fictitious names are used for clarity and confidentiality.

2 Sarah gave birth two other children, A.U. and K.U., during the pendency of this case. Her parental rights to A.U. and K.U. are not subject to this appeal.

3 Marc is not a party to this appeal.

4 Sarah's final psychological evaluation with Dr. Katz was completed on October 1, 2014, during the trial, as Sarah failed to appear for two prior scheduled appointments.