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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1461-05T41461-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

G.L.,

Defendant-Appellant,

IN THE MATTER OF THE GUARDIANSHIP

OF M.J.C.,

Minor.

________________________________________________________________

 

Submitted May 23, 2006 - Decided July 13, 2006

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, FG-20-41-05.

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

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monique D'Errico, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor child, M.J.C. (Cynthia McCulloch DiLeo, Assistant Deputy Public Defender, Designated Counsel, on the brief).

PER CURIAM

G.L. appeals from a judgment of guardianship terminating her parental rights to her daughter, M.J.C., who was born on May 13, 2003. G.L. argues on appeal that the trial judge erred in terminating her parental rights because the State failed to prove by clear and convincing evidence all four prongs of the best interests test. We have reviewed the record and conclude that the trial judge's findings are well supported by the evidence, R. 2:11-3(e)(1)(A), and that G.L.'s appeal arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Spatola in her thorough and well-reasoned oral decision of September 19, 2005. We add these comments.

The underlying basis for the termination of G.L.'s parental rights to M.J.C. began before M.J.C. was born or conceived. G.L. and her husband, T.C., had a son, I.C., who was born on January 30, 2002. On March 30, 2002, when I.C. was about nine weeks old, he was left in his father's care for about forty-five minutes. When G.L. returned home, she found the baby lifeless. She called 9-1-1. The baby was taken to the hospital, and transferred to another hospital. He died several days later. It was clearly established by the medical providers, and confirmed by the autopsy report and other medical evidence, that the cause of death was shaken baby syndrome. T.C. was later indicted for manslaughter and endangering the welfare of a child. He went to trial and, although he was acquitted of manslaughter, the jury convicted him of endangering the welfare of a child by shaking the baby and causing his death. He was sentenced to nine years in prison.

From the outset, T.C. denied that he shook I.C. He contended that I.C. was crying and cranky and that he was trying to console the child by holding him. He contended that I.C. burped, but no vomit came out, implying that the child choked on his vomit. He also contended that the paramedics spent four to five hours working on I.C. and suggested that they may have shaken the baby.

G.L. accepted her husband's version of the events, and even joined in contending that the paramedics worked on the child for four to five hours outside their apartment, which was not true. She added that I.C. had some retinal hemorrhaging and other conditions from birth, which may have explained the conditions found postmortem, rather than being evidence of shaken baby syndrome. She produced no medical evidence to back up these contentions. In short, as Judge Spatola found, G.L. was an "apologist" for T.C. with regard to the death of their son, I.C.

Soon after I.C.'s death, G.L. made it known that she intended to have another child with T.C., and she indeed became pregnant. The Division of Youth and Family Services (DYFS or Division) became involved out of a concern that when born, the new child would be at risk if exposed to T.C. T.C. was indicted on March 12, 2003. On March 24, 2003, G.L. informed the Division that her husband had moved out of the house. On April 1, 2003, G.L. signed an in-home case plan, agreeing not to allow T.C. to be the sole caretaker of the new child or to live in the home. M.J.C. was born on May 13, 2003, and was discharged home with her mother. T.C. was present at the hospital at the time of birth. Arrangements were made for visitation by T.C. at the DYFS office.

On July 28, 2003, the Division filed a protective services complaint against both parents. On August 4, 2003, G.L. entered into a stipulation admitting that her statements that she believed T.C. was not responsible for I.C.'s death and that she did not believe that T.C. was a threat to M.J.C. placed M.J.C. at risk of harm if continued in her care. On August 5, 2003, M.J.C. was placed with her godparents, Donald and Victoria Boughton, who were selected by G.L. for the placement.

G.L. had liberal visitation with her daughter, supervised by the Boughtons. G.L. visited with her daughter regularly, once or twice a week. The Division referred G.L. for grief counseling and parenting skills classes, and G.L. was compliant. Throughout this time, however, G.L. continued her contact with T.C., and she acknowledged to her counselor that her continued contact with her husband delayed her chances of reunification with her daughter.

T.C. was convicted on April 30, 2004 and sentenced on June 6, 2004. During this timeframe, the Division's plan was for reunification of G.L. with M.J.C. On July 7, 2004, at the Division's request, G.L. was evaluated by Dr. John LoConte. In the course of that evaluation, G.L. continued to defend her husband's version of I.C.'s death and complained that the sentence imposed was too severe and that the government was casting T.C. as an "anti-role model." LoConte found G.L.'s reliance on intellectualization and religious belief to be a coping mechanism. He recommended continued therapy for at least six months with continued monitoring, and reunification of mother and daughter. The matter came before the court on July 15, 2004, for a permanency hearing. The judge rejected the reunification plan because of G.L.'s failure to acknowledge T.C.'s culpability in causing the death of I.C. The judge was also concerned about G.L.'s failure to develop appropriate insight into the Division's concerns about her apparently ongoing relationship with T.C. and concerns that if she were reunited with her daughter she would eventually allow T.C. access to M.J.C. The judge directed the Division to devise a new permanency plan.

The new plan provided for adoption by the Boughtons. However, several months later, in December 2004, the Boughtons informed the Division that they no longer wished to consider adopting M.J.C. On March 28, 2005, M.J.C. was placed with Mary and Le Roy Bowers, her maternal aunt and uncle. M.J.C. continued in their care through the time of trial, which began on May 18, 2005, and concluded with the judge's decision on September 19, 2005. M.J.C. has adjusted well in the Bowers' care and they wish to adopt her.

It was learned through the course of the proceedings that G.L. visited T.C. in prison on ten occasions between December 2004 and April 2005. G.L. lied about these visits to Division workers and evaluators. When later confronted with the information, G.L. said the purpose of the visits was to discuss church business with her husband, who had been a pastor in their church. She had now become a pastor, and she said she needed to discuss information regarding tax-exempt status, filing requirements, and the like. Judge Spatola soundly rejected that explanation. Overall, the judge found G.L. lacking in credibility. For example, although G.L. purported to finally acknowledge T.C.'s culpability in I.C.'s death, the judge found the purported acknowledgment insincere and incredible. She found that G.L. was merely saying what she thought she needed to say in order to gain an advantage in the termination proceeding.

Bonding evaluations were conducted. No strong bond was found between mother and daughter. Dr. Barry A. Katz and Dr. Elayne Weitz testified for the Division. Katz described that during the bonding evaluation with G.L., M.J.C. appeared anxious and distant, and she did not rely on her biological mother for emotional support or nurturance. Katz opined that G.L. suffers from a compulsive personality disorder with histrionic features, and her continuing outward disavowal of her ongoing relationship with T.C. while in fact continuing to engage in that relationship is consistent with that diagnosis. In Katz's view, G.L. had not benefited from the services provided to her. She placed her own needs ahead of those of her child and was incapable of placing her child's needs before hers. Katz opined that if in G.L.'s care, M.J.C. would be exposed to a high risk of harm, even if T.C. were out of the picture. In light of G.L.'s history of deception and failure to appreciate the Division's concerns and comply with its directives, G.L.'s ability to protect M.J.C. from harm would not improve. Katz opined that G.L. could not safely parent M.J.C. in the foreseeable future and that termination of the parental relationship would produce no significant harm to M.J.C. because of the lack of any significant bond between them. The termination would have a positive effect by leading to a stable caregiver situation for M.J.C.

Weitz conducted a bonding evaluation between M.J.C. and Mary Bowers as well as with G.L. Weitz opined that although M.J.C. had only been in the care of the Bowers for a few months, M.J.C. had come to trust Mary Bowers and was very comfortable with her. In Weitz' view, M.J.C. had been traumatized by her changes in placement and, if removed from her current caretakers, would be further traumatized and would regress. She was further of the view that if M.J.C. had no further contact with G.L., this would not be detrimental to M.J.C.'s development.

On February 2, 2005, Katz also conducted an evaluation of T.C. He found that T.C. exhibited a compulsive personality disorder and demonstrated a controlling behavior. He continued to deny responsibility for I.C.'s death. He blamed G.L. for not calling 9-1-1 when he told her to. Katz opined that T.C. would continue to pose a risk to M.J.C., and this circumstance had not changed in any measure since I.C.'s death.

G.L. presented the testimony of LoConte and Dr. Linda Cameron. Cameron acknowledged that G.L. is ambivalent and indecisive with regard to T.C.'s culpability in I.C.'s death, concluding that G.L. is likely in denial related to her grief reaction. Cameron conducted a bonding evaluation and did not observe any significant emotional attachment or bond between mother and daughter. She recommended, however, that G.L. continue with therapy and increase her visitation with M.J.C., towards an ultimate reunification goal. LoConte also recommended continued services towards a goal of reunification with continued DYFS involvement. He discounted the overwhelming evidence of shaken baby syndrome and the fact that G.L. had lied about her continuing contact with her husband while in prison. Regarding the latter circumstance, he acknowledged that G.L. harbored a hope of a future co-parenting relationship with T.C.

In addition to the four experts called by the Division and G.L., the judge also received the testimony of Damond Yearns, a DYFS caseworker, G.L., Donald Boughton, and Julie Goldstein, an investigator for the law guardian. During the course of the trial, T.C., represented by counsel, voluntarily relinquished his parental rights to M.J.C. The judge also considered voluminous documentary evidence. In rendering her decision, the judge reviewed in detail and critically analyzed the evidence presented. She made credibility findings. She found that the Division established by clear and convincing evidence all four prongs of the best interests test. Accordingly, she concluded that the best interests of the child would be served by terminating G.L.'s parental rights.

"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1412, 71 L. Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.

The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:

(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.

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

DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria 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.

In K.H.O., the Court held that where there is evidence that a bond with a foster parent is strong and that a bond with a natural parent, by comparison, is not as strong, the fourth prong of the best interests standard will be satisfied. Id. at 363. New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.

Judge Spatola found that the first prong was satisfied because G.L. "harmed this child by maintaining her support for and a relationship with her husband [T.C.]." Included in her findings on the first prong were these comments:

Thus it is clear that even after [I.C.] had died while in [T.C.]'s care and even after the autopsy established "Shaken Baby Syndrome" as the cause of death, [G.L.] viewed [T.C.] as fit to parent her third child. Her pregnancy was the result of her volitional behavior engaged in even while [T.C.] was being investigated as the cause of their son's death. Thus [G.L.] brought [M.J.C.] into this world and into a perilous situation. Further by her failure to respond and the least bit protectively such as by asking [T.C.] to leave the marital home before DYFS did so or by terminating her relationship with him [G.L.] has caused the Division to keep [M.J.C.] in the care of others. They have done so for her protection. It is precisely because of her spirited defense of [T.C.] on numerous occasions that the Division and this Court had well-based concerns that [M.J.C.] would be at imminent risk of serious harm if transferred to [G.L.]'s custody for she would surely allow [T.C.] to have contact with his daughter. As such [G.L.] has deprived [M.J.C.] of herself as a mother. This is an aspect of harm different only in the degree from the type of parental withdrawal of "that's solicitude nurture and care of family for an extended period of time" that is "in itself a harm that endangers the health and development of the child." See In Re The Guardianship of D.M.H. at 161 N.J. 365 at page 379. While [G.L.] visited the child she behaved in a way that precluded reunification.

The judge found the second prong satisfied because of G.L.'s continued attachment to her husband and refusal to acknowledge his culpability in their son's death. The judge was clearly convinced that G.L. believed her husband was a "good man" and that notwithstanding the overwhelming medical evidence and his criminal conviction, she refused to accept his culpability in I.C.'s death. Regarding the second prong, the judge said:

[G.L.] has been so defensive of [T.C.]; so sure he has been wrongly accused, so critical of the length of his nine-year prison term, that it is apparent that she visited him because she continues to have a close, personal relationship with him. The excuse is by her to attempt to explain away ten visits is patently absurd. It is what she decided to concoct after she was found out. Thus the concern would be that since she is continuing her relationship with [T.C.], if [M.J.C.] were returned to her, [G.L.] would surely allow [T.C.] to have a relationship with his daughter not withstanding his general surrender of his rights. This would compromise the child's safety; something that The Court should not permit. Recall that under The Adoption and Safe Families Act, safety of the child is of paramount concern. [G.L.] is either unable or unwilling to cease her support for [T.C.] She continues her relationship with him. She acknowledges -- she acknowledged that her defense of him placed [M.J.C.] at risk when she stipulated over two years ago in August of 2003. Since then while she has had the benefit of individual counseling on a weekly basis she has not shown herself to be truly separated from [T.C.]. As such, she is either unwilling or perhaps just unable to eliminate the harm facing [M.J.C.]; ultimately namely her relationship with [T.C.].

Lastly, this child [M.J.C.] has already had three placements. A brief stay in foster care, then a year and half with the Baughton's, and now she is with maternal Great-Aunt Bowers. She's 2 years old; she cannot keep moving from place to place like this. Note also that [G.L.] lied to Defense Psychologist Linda Cameron telling her that she didn't visit her husband in prison and that the relationship was over. This was said on March 3, 2005. In fact by then [G.L.] had visited [T.C.] six times. Dr. Cameron noted that [G.L.] had insight into herself and others and that she is "clearly ambivalent and indecisive concerning her husband's involvement in their son's death."

The judge was also clearly convinced that the Division provided reasonable services and considered alternatives to termination. Indeed, G.L. availed herself of services provided by the Division, and the caretakers selected for M.J.C. were close friends and relatives of G.L. The judge found that mere custody by a relative would be inappropriate because G.L. "would undoubtedly file again and again for the return of custody of [M.J.C.] to her. Also the child is young and adoptable and so kinship legal guardianship is inappropriate for her. She deserves a permanent plan."

Finally, the judge concluded there was no strong bond between G.L. and M.J.C., that M.J.C. would suffer significant trauma if removed from her current caretakers but would not be traumatized by severing her relationship with her mother, and that she should remain with her current caretakers. Thus, the judge was clearly convinced that termination would not do more harm than good.

The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of Family Court judges in family matters, we accord enhanced deference to Family Court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). From our review of the record, we are satisfied that the record supports the judge's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We will not disturb the judge's findings on appeal. The judge properly applied the correct principles of law to her factual findings, and we find no error in the result reached.

Affirmed.

 

(continued)

(continued)

15

A-1461-05T4

RECORD IMPOUNDED

July 13, 2006