NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.R. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4543-04T44543-04T4

A-4725-04T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.R. and K.G.,

Defendants-Appellants.

IN THE MATTER OF THE GUARDIANSHIP OF

K.G.,

A Minor.

 

Submitted on November 9, 2005 - Decided

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-154-04.

Yvonne Smith Segars, Public Defender, attorney for appellant, A.R. (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant, K.G. (Evelyn F. Garcia, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Christina Remolina, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for respondent K.G. minor child-respondent (Christopher A. Huling, Assistant Deputy Public Defender, on the brief).

PER CURIAM

We consolidate these separate appeals for the purpose of addressing them in this opinion. In the first appeal (A-4543-04T4), A.R., the natural father of the minor child, K.G., appeals from the March 9, 2005 order and judgment of the Chancery Division, Family Part, terminating his parental rights to K.G. and placing the child in the care and under the guardianship of the New Jersey Division of Youth and Family Services (DYFS) for all purposes. He asserts that DYFS failed to prove, by clear and convincing evidence, each of the statutory requirements, see N.J.S.A. 30:4C-15.1(a), to support the termination of his parental rights. In the second appeal (A-4725-04T4), Ke.G., the natural mother of the minor child, K.G., appeals from the same judgment to the extent that it terminated her parental rights to the child. She asserts that the trial judge erred in excluding a document that she offered in evidence concerning her participation in a rehabilitation program and she argues that termination was not supported by clear and convincing evidence in accordance with the statutory requirements. We disagree with the arguments raised in each of these appeals and we affirm.

The following facts are derived from our review of the record. K.G. was born on September 6, 2002. The next day, DYFS received a referral because the child and her mother, Ke.G., had both tested positive for methadone. At the time, Ke.G. was participating in a methadone program, and the presence of that substance in the infant therefore did not substantiate an allegation of neglect. DYFS nevertheless opened a case in connection with K.G. for supervision and services because both Ke.G. and A.R. admitted that they were continuing to use drugs. Both A.R. and Ke.G. were known to DYFS. A.R., who is the father of three other children, had previously been found to be responsible for injuries sustained by his daughter, J.R., in 1999. Ke.G., who is also the mother of H.C., was the subject of a DYFS proceeding in 1994 when it was determined that H.C.'s fractured arm was the result of her abuse and neglect. H.C. was removed from her care at that time and has resided with his paternal relatives ever since.

On September 11, 2002, while the infant K.G. remained in the hospital for treatment, a DYFS caseworker visited with A.R. and Ke.G. at their home. They both told the caseworker that they were attending Spectrum Health Care, where they received Methadone each day. They were told that they would need to complete substance abuse evaluations. On September 13, 2002, Ke.G. was admitted to the psychiatric unit of the Jersey City Medical Center. At the time, it was reported that she had been using drugs and breaking items in the house. She was dressed inappropriately on admission to the hospital. She admitted that she had been snorting cocaine and using heroin shortly prior to her admission to the hospital. She was diagnosed as suffering from bi-polar disorder and drug dependence, was treated and released. During that time, DYFS also learned that A.R. was suffering from drug dependence. He admitted that he had been using heroin on a daily basis from June 2002 through September 2002. On September 20, 2002, DYFS arranged for both A.R. and Ke.G. to undergo substance abuse evaluations. Based on the results of the evaluation, Ke.G. was directed to attend an inpatient treatment program. She refused to do so. At the same time, DYFS learned that Ke.G. had not visited K.G., who remained in the hospital, since her birth. The substance abuse evaluation also recommended that A.R. enter intensive inpatient substance abuse treatment. Like Ke.G., he refused to participate and has never undergone the treatment that was recommended.

Prior to K.G.'s discharge from the hospital, DYFS attempted to meet with Ke.G. and A.R. to assist them in planning for her care. Ke.G. failed to attend the meeting. When K.G. was discharged from the hospital some six weeks after her birth, DYFS began to provide A.R. and Ke.G. with twenty-four hour homemaker services to assist them with her care. Within three weeks of the child's discharge into their care, the homemaker reported Ke.G. and A.R. were abusing drugs and alcohol and that Ke.G. was leaving the child unsupervised. When questioned by the DYFS caseworker, Ke.G. again admitted to her substance abuse. During the months that followed, Ke.G. continued to abuse substances, began to refuse random drug screens and failed to attend parenting programs to which DYFS had referred her.

In December 2002, DYFS sought and was granted care, custody and supervision of K.G. and placed the child in a foster home. Initially, Ke.G. attended visits with the child, but A.R. did not. In January 2003, both parents were ordered to participate in treatment at Spectrum, to submit to drug screens and to undergo psychological evaluations. In the months that followed, Ke.G. failed to attend the Spectrum program and A.R. consistently tested positive for drugs at each screening. In September, they both failed to appear for drug testing, with the result that the court considered that the tests would have been positive. In October 2003, Ke.G. was ordered to participate in an inpatient drug program, but she gave untruthful answers during the intake process, and expressed an unwillingness to undergo treatment. After she was compelled to enter the program, she remained only for one day. She was subsequently accepted into the Integrity House program, but remained for only three of the usual six weeks required, opting thereafter to utilize the methadone maintenance services at Spectrum. Approximately six weeks before the trial of the issues, Ke.G. was hospitalized, suffering from a nervous breakdown. She was released after ten days of treatment. A.R. never participated in any substance abuse treatment programs, although he, too, utilized the methadone maintenance services.

Both Ke.G. and A.R. were ordered to undergo psychological evaluations with Dr. Ernesto Perdomo. Although Dr. Perdomo scheduled many appointments for them and offered them an essentially open-ended invitation to appear at his office for testing, neither A.R. nor Ke.G. ever completed that process. As a result, Dr. Perdomo was unable to offer any opinions at trial about the psychological status of either parent. Both Ke.G. and A.R., however, had participated in parenting evaluations in March and in April 2003, respectively, with Dr. Richard Coco. The reports of his findings and conclusions were considered by the trial judge. In summary, Dr. Coco noted that Ke.G. had a significant history of psychiatric disorders and treatment. He concluded that she "has an impulsive and suspicious nature with underlying passive aggressive tendencies," that her judgment and insight were "negatively influence[d]" as a result and that stress could be expected to cause her to decompensate. He noted that her "chronic substance abuse and noncompliance with both substance abuse and mental health treatment is of great concern." He recommended that Ke.G. participate in additional assessments, that she undergo substance abuse treatment and psychiatric treatment, that she participate in parenting classes and that she be provided with homemaker and other supports. He recommended that she not have custody of K.G. until she had demonstrated compliance with his recommendations and until she had made "clear and measurable progress" toward these goals. There is no evidence that she followed any of these recommendations.

With respect to A.R., Dr. Coco's 2003 report concluded that he "generally minimizes his personal shortcomings, and tends to have a self-centered view of the world that leads to a lack of personal insight . . . [and that he exhibited] a propensity to drug addiction and psychopathological behaviors." Dr. Coco recommended that A.R. also undergo parenting training, and that he engage in psychological counseling in an effort to address his addictions and his interpersonal difficulties. There is no evidence in the record that A.R. ever complied with any of these recommendations.

During the same time, DYFS investigated a number of potential family members that A.R. and Ke.G. had suggested might be suitable caretakers for K.G. These included a brief and unsuccessful placement with J.P., a family member. The DYFS efforts to locate a suitable placement also included an investigation of A.A. and K.C., each of whom is a family friend, and J.R., who is one of A.R.'s daughters, but none of these individuals was appropriate. In addition, in October 2003, DYFS asked B.D., who is Ke.G.'s mother, if she were interested in being considered. At the time, B.D. declined, responding that she had recently lost her own mother and was too "confused" to care for the child. In or about July 2004, however, the court directed DYFS to again consider placing K.G. with B.D.

At the time, B.D. had not had any contact with K.G. since December 2002, when the child was first placed in foster care. However, she expressed an interest in caring for the child, as a result of which DYFS began to investigate her as a possible placement. As a part of that investigation, B.D. was evaluated by Dr. Perdomo. He learned that B.D. was then caring for her grandson, B.G., who suffers from juvenile diabetes, a learning disability and ADHD. Dr. Perdomo's evaluation of B.D. included his clinical interview and the administration of standard psychological tests. He concluded that B.D. was not a suitable caretaker for K.G. He cited B.D.'s emotional immaturity, general anxiety and lack of self-control as limiting her ability to address the needs of her two-year old granddaughter. In addition, he concluded that the heavy burdens she was already carrying as a result of being the caretaker for her grandson B.G., who she regarded as her primary responsibility, would ill suit her for the role of parenting K.G.

B.D. was also evaluated by Dr. Gerard Figurelli, an expert psychologist retained by A.R. and Ke.G. In his opinion, B.D. is capable of parenting a child. However, during his interview with her, B.D. told him that she did not anticipate that K.G. would encounter any difficulty adjusting to a change in her living arrangement. In his opinion, this revealed a "somewhat unrealistic" expectation, because B.D. had never visited with K.G. and because K.G. had already developed a close bond with her foster parents.

In addition, bonding evaluations were performed. Although the failure of A.R. and Ke.G. to participate in an evaluation with Dr. Perdomo made it difficult for him to express a specific opinion, he concluded that terminating their parental rights to K.G. would not adversely affect the child as she had never developed any significant bond with either of them. In addition, while to some extent, the evaluation performed by Dr. Perdomo on K.G. and her foster parents was hampered by the fact that K.G. had then only been in the care of these particular foster parents for two months, he nevertheless opined that the relationship between them appeared already to be very good. Moreover, at trial, he testified that he would expect that K.G.'s continued placement with these foster parents would have created a bond between the child and her caregivers.

In addition, the guardian ad litem presented the testimony of Dr. Elizabeth Smith, who had also performed a bonding evaluation of K.G. and her foster parents. That evaluation had been completed in February, 2005, just prior to the trial and at a time when the child had been in the care of the foster parents for eleven months. Dr. Smith concluded that there was a secure attachment between K.G. and the foster parents and she described their relationship as a "strong, secure, healthy attachment." She described the foster parents as "very sensitive, caring and responsible foster parents [who] provided excellent care for [K.G. who]. . . obviously adored them." She opined that the child would suffer "great emotional loss that could have severe consequences" if she were removed from that home. She described K.G. as happy, contented and thriving in her foster home.

During the trial that led to the termination judgment, much of the focus related to B.D.'s ability to serve as an appropriate placement for the child. As a result, the judge considered the evidence surrounding B.D. and the expert opinions relating to her in great detail. Based on that evidence, together with all of the other evidence relating to A.R., Ke.G., K.G. and the foster parents, the judge set forth his findings and conclusions in support of his decision on the record on April 6, 2005. In summary, he concluded that DYFS had proven each of the four statutory elements required for a judgment terminating the parental rights of both A.R. and Ke.G. by clear and convincing evidence. In particular, he concluded that B.D. would not be a suitable alternate placement for K.G. in light of the heavy burdens already imposed on B.D. as the caregiver for her special needs grandson, which would inevitably result in a family dynamic that would not be in K.G.'s best interest.

Ke.G. first contends on appeal that the judge erred in excluding a letter from Liberty Health from evidence. She offered the letter as proof of the fact that during the two-month period immediately prior to the trial, she had been attending a drug treatment program at Liberty Health. The judge excluded the letter, concluding that it was hearsay and could not be authenticated. On appeal, Ke.G. challenges the judge's ruling, arguing that the document was relevant to the issues and important to prove her assertion that she had been attending drug treatment. We disagree.

The letter, offered to prove the truth of its contents, was hearsay. See N.J.R.E. 801. DYFS objected to its admission on the ground that it had not been authenticated. See N.J.R.E. 901. While authentication could have been accomplished through appropriate testimony, see State v. Moore, 158 N.J. Super. 68 (App. Div. 1978), or otherwise, see State v. Thomas, 132 N.J. 247, 257 (1993), merely demonstrating that the letter was authentic, in the sense that it was genuine, would not have sufficed to make it admissible. Rather, because the letter was offered for the truth of its contents concerning Ke.G.'s participation in a treatment program, it would not be admissible unless Ke.G. could demonstrate compliance with the business records rule, N.J.R.E. 803(c)(6), and, potentially, with the rule governing opinions included in writings as well. See N.J.R.E. 808.

Regardless of which rule would have been most properly applied, the burden of demonstrating that the letter was admissible or that the contents of the letter could appropriately be considered for the truth thereof was Ke.G.'s to bear. See State v. Brunson, 132 N.J. 377, 393 (1993). We discern no abuse of discretion in the judge's decision to exclude this proffered document from being admitted as evidence. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

In addition, on appeal both A.R. and Ke.G. challenge the trial judge's findings and conclusions on each of the four elements of the statutory test for termination of parental rights, but with particular focus on the issue of B.D.'s ability to effectively parent K.G.

We begin with the observation that an appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. The appellate court reviews the record to determine whether the findings are supported by substantial, credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also accords considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the judge's factual findings are supported by the evidence, the appellate court should not disturb them. Rova Farms, supra, 65 N.J. at 484. In particular, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)(citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A father's or mother's right to parent his or her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)(citations omitted). However, that right is not absolute and must yield to protect a child's welfare. See New Jersey Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted). These standards which are now codified in the statutory four-part test, see N.J.S.A. 30:4C-15.1(a), are not discrete but are to be applied in light of the particular facts and circumstances in the record.

Applying these familiar principles to the record before us, we find no ground on which to interfere with the trial judge's findings and conclusions. The record reflects that both A.R. and Ke.G. have long-standing substance abuse problems. Both of them engaged in abuse of drugs and alcohol in the presence of K.G. during the brief time when she was in their care. Each has repeatedly refused to participate in treatment designed to assist them in overcoming their addictions or has participated in programs only sporadically. Both continued to abuse drugs and alcohol and to test positive for illegal substances throughout the time when these proceedings were pending.

Both have refused to participate in parenting education classes and Ke.G. has either failed or been unable to address her psychiatric disorder. Moreover, during the time when K.G. was in foster care, A.R. and Ke.G. made little effort to visit her and failed substantially to establish a relationship with her. Neither participated in the required bonding evaluations, but their absence from her life adequately supports the conclusion that they have no parental bonds with the child. During the same time, the child has become securely bonded to her foster parents and there is substantial support in the record for the conclusion that removing her from that home would cause her to suffer severe emotional damage.

Furthermore, the arguments raised at trial and on appeal respecting the possibility of placing this child with B.D., her maternal grandmother, are lacking in support. As the trial judge found, although in general B.D. has adequate parenting skills, those skills are taxed to their limit by the legitimate demands upon her that caring for her grandson presents. More to the point, however, B.D. has had virtually no contact with K.G. since the child was born and the child has not had the opportunity to develop a bond with B.D. that might otherwise be a significant factor in our analysis. At the same time, B.D.'s inability to appreciate the significance of that lack of a bond or understand the impact on K.G. of removing her from the home of the foster parents to whom she has become bonded is significant. In light of these considerations, the fact that B.D. is a blood relative of K.G. is not sufficient to require that K.G. be placed in her care. See In re L.L., 265 N.J. Super. 68, 78-80 (App. Div. 1993).

Based on our review of this record, we are satisfied that the judge's findings of fact are supported by substantial credible evidence in the record and that those facts establish, as the judge concluded, that DYFS proved each part of the statutory test by evidence that is both clear and convincing.

 
Affirmed as to both appellants.

(continued)

(continued)

17

A-4543-04T4

RECORD IMPOUNDED

December 6, 2005