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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2720-05T42720-05T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.A.,

Defendant-Appellant,

and

S.P.,

Defendant,

IN THE MATTER OF THE GUARDIANSHIP

OF L.S.,

A Minor.

 

Submitted: June 13, 2006 - Decided July 25, 2006

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket Number FG-07-263-05.

Yvonne Smith Segars, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for the minor child (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this guardianship case, defendant L.A. appeals from an order entered in the Family Part on December 5, 2005, terminating her parental rights to her son, L.S., and placing the child in the care or custody of plaintiff New Jersey Division of Youth and Family Services (DYFS or Division) for all purposes, including placement for adoption. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

L.A. gave birth to L.S. on December 18, 2004; L.S. has since never resided in the care or custody of L.A. An investigation by DYFS disclosed that L.A. was married to defendant J.C.A. in 1992. L.A. has informed the Division that J.C.A. died in Haiti in June 1994; however, the Division has been unable to verify that information. L.A. has named S.P. as the biological father of L.S. However, after diligent inquiry, the Division has been unable to locate or determine his whereabouts or establish his paternity.

L.A. has had a long history of mental illness, is HIV positive and has a seizure disorder. DYFS has been able to determine from its records that L.A. is also the biological mother of four other children: M.A., born on March 2, 1994; B.O., born on April 2, 1996; a female child who was born on December 16, 1996 and died that same day; and M.D., born on February 2, 2003.

L.A.'s parental rights to M.A. were involuntarily terminated by an order for guardianship entered on September 10, 2002, under docket number FG-07-139-02-G. L.A.'s parental rights to M.D. were involuntarily terminated by an order for guardianship issued on April 1, 2004, under docket number FG-07-147-04. The Division has never been involved with the child B.O., and her whereabouts are unknown; however, B.O. is not in the care or custody of L.A.

The Division became involved with L.A.'s family on January 30, 1997, when a referral was received from the Office of the Medical Examiner stating that L.A. had given birth at home to a baby girl on December 16, 1996, and that the child had died at Orange Memorial Hospital on the same day. That Office informed the Division that L.A. had not claimed the child's body, that she was a recipient of Supplemental Security Income (SSI), and was unable to afford to bury the child. It was later ruled by the medical examiner that the cause of that child's death was homicide by drowning.

Upon the birth of L.S. on December 18, 2004 at UMDNJ Hospital in Newark, DYFS was contacted. On December 20, 2004, DYFS effected an emergency removal of the child from L.A.'s care and custody, pursuant to the authority contained in N.J.S.A. 9:6-8.29 to -8.30, and placed L.S. with the Boarder Baby Nursery at the hospital.

On December 22, 2004, the Division filed a Title 9 child abuse and neglect complaint in the Family Part against L.A. and S.P. under docket number FN-07-313-05-K, seeking an order granting it custody and care of L.S. On that same date, the Family Part conducted a hearing and issued an order awarding custody and care of L.S. to DYFS, and directing that L.A. and S.P. show cause on January 28, 2005, why an order should not be entered continuing L.S. in the care and custody of the Division.

On January 28, 2005, L.A. appeared, but S.P. failed to appear and he has never participated in any court proceedings pertaining to the custody or care of L.S. After conducting a hearing, the Family Part issued an order continuing the care and custody of L.S. with DYFS, ordering evaluations of L.A., and providing for supervised visitation for L.A. with L.S. In a separate order, in light of the prior termination of the parental rights of L.A. to two of her other children, pursuant to N.J.S.A. 30:4C-11.3c, the court ruled that the Division was relieved of its obligation to provide reasonable efforts to reunify L.S. with L.A. That order also scheduled a fact-finding hearing on the allegations in the complaint for March 3, 2005.

On March 3, 2005, the Family Part conducted a hearing and entered three orders. In the first order, the trial judge found, by clear and convincing evidence, that L.A. had placed L.S. at risk for abuse and neglect based on her long, extensive mental health history, her seizure disorder and her life-threatening illness. In the second order, the court continued the care and custody of L.S. with the Division, with L.S. placed in foster care, and provided for supervised visitation for L.A. with the child. In the third order, the court found that L.A. lacked the ability to independently care for L.S.; that it would not be safe to place L.S. with his mother in the foreseeable future; that L.S. deserved permanency and stability; that the foster caretaker desired to adopt L.S. and was in the process of adopting L.S.'s siblings; and that S.P. had failed to come forward. In that order, the court approved the Division's permanency plan for L.S. of foster-parent adoption. The court also found that the Division had exerted efforts in the past to reunify L.A. with her other two children, without success, resulting in the termination of her parental rights as to those children. Continued attempts by the Division to locate S.P. were unsuccessful.

On May 13, 2005, the Division filed a verified guardianship complaint in the Family Part, naming L.A., S.P. and J.C.A. as defendants, seeking an order terminating their parental rights to L.S. The Family Part issued an order on that date that provided for legal representation of L.A. and S.P.; dismissed the complaint as to J.C.A., on the basis that he was deceased; provided for the representation of L.S. by the Law Guardian; provided for discovery and evaluations to be conducted of the defendants; and required L.A. and S.P to show cause on June 22, 2005, why the relief requested in the complaint should not be granted.

A case management order was entered on June 22, 2005, providing for discovery, psychological and bonding evaluations, and pretrial conferences. A psychological evaluation of L.A. was conducted by Dr. Andrew P. Brown on August 2, 2005. Dr. Brown issued a report of that evaluation, which was admitted in evidence at trial, diagnosing L.A. as suffering from a psychotic disorder, mental retardation, and a personality disorder. Dr. Brown stated that L.A. was not capable of parenting a child, further finding as follows:

Combined psychological and neuro-psychological indices are consistent with the impression of severely disturbed mental processing. Psychiatric symptoms are characterized by incoherent speech, ideas of reference, severely limited comprehension, and impaired organization and planning.

On August 17, 2005, the court issued an order entering default against S.P., and on September 26, 2005, an order was entered scheduling the matter for trial.

A trial on the allegations in the guardianship complaint was conducted in the Family Part before Judge R. Benjamin Cohen on November 15 and 16, 2005. The court received testimony from Benjamin Okoli, the DYFS caseworker, who outlined the history of L.A. with the Division and identified the DYFS file, which was admitted into evidence. L.A. testified concerning her history of mental illness, her medication regimen, and contended that her family gave her HIV by means of voodoo, that God speaks to her about her disease, and that she has no family to assist her with L.S. should he be placed in her custody. Dr. Brown testified consistent with his August 2, 2005 report.

On December 5, 2005, Judge Cohen delivered a comprehensive oral decision, finding that the testimony of Mr. Okoli was credible and was supported and corroborated by the exhibits in evidence. The judge also found Dr. Brown's testimony to be credible, recounting that Dr. Brown found L.A. was not capable of properly parenting L.S. "without constant around-the-clock supervision." The judge also found credible Dr. Brown's conclusion that L.S.'s welfare would be in danger if he were committed to the custody of L.A.

Judge Cohen meticulously reviewed and made findings on each of the four prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a, concluding that L.A. had endangered the safety, health and development of L.S. by exposing the child to HIV, "causing a grave threat to his health and to his life[,]" and

by being and remaining unfit to provide [L.S.] with even minimally adequate parenting due, unfortunately, to (a) her long history of mental illness; (b) her documented cognitive limitations; (c) her medical problems, including the seizure disorder and her testing positive for HIV; (d) her history of demonstrating an unfitness to parent any of [L.S.'s] older siblings, including the death of baby girl [S.] and involuntary termination of her parental rights with regard to children [M.A.] and [M.D.]; (e) her history of not being able to maintain safe, stable housing; (f) her history of not being able to maintain full time gainful employment; (g) her lack of any family support system; [and] (h) her inability to concretely plan for [L.S.'s] return.

The judge also found, by clear and convincing evidence, that L.A. was unable or unwilling to eliminate the harm facing L.S. due to the parental relationship, and that further delaying the permanent placement of L.S. would add to the harm. Judge Cohen also concluded that the Division had exercised "reasonable efforts to reunite [L.S.] with the defendants under the circumstances of this case[,]" and that "no other alternatives to termination of parental rights are feasible here." The judge noted that the court had previously excused DYFS from exercising reasonable efforts based on the previous termination of L.A.'s parental rights as to two of her other children.

The judge concluded that the termination of L.A.'s parental rights would not do more harm than good. Judge Cohen also considered the fact that L.S. had lived his entire life in the same foster home as his sister, M.D., and had bonded with her. The judge concluded that "[L.S.] would suffer no harm or virtually no harm if the defendant's rights were terminated here. Delaying permanency, the court finds, would cause [L.S.] additional harm. He is in need of permanency now."

On December 5, 2005, the judge issued an order for guardianship, terminating the parental rights of L.A. to L.S. On appeal, L.A. argues that substantial credible evidence did not exist supporting the court's finding that the best interests test was proven by clear and convincing evidence.

We begin our inquiry by restating applicable legal principles. These principles bear replication in light of the remedy ordered by the Family Part judge.

The rights of parents to enjoy a relationship with their children is of constitutional dimension. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)); In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 403-04 (1999); New Jersey Div. of Youth and Family Servs. v. A.W., 103 N.J. 591 (1986)). Parents have a constitutionally protected, fundamental liberty interest in raising their biological children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982). The Federal and State Constitutions protect the inviolability of the family unit. Stanley, supra, 405 U.S. at 651, 92 S. Ct. at 121-13, 31 L. Ed. 2d at 558-59; A.W., supra, 103 N.J. at 599.

"The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). As is true of so many other legal presumptions, "experience and reality may rebut what the law accepts as a starting point. . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. The incidence of child abuse and neglect cases attests to the fact that some parents may act against the interests of their children. Ibid.

Government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Id. at 603, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119 (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State as parens patriae may act to protect children from serious physical and emotional harm. This may require a partial or complete severance of the parent-child relationship. However, "[f]ew forms of state action are both so severe and so irreversible." Santosky, supra, 455 U.S. at 759, 102 S. Ct. at 1398, 71 L. Ed. 2d at 610.

When the child's biological parents resist termination of parental rights, our function is to decide whether the parent can raise the child without causing harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of our inquiry is not whether the parents are fit, but whether they can become fit to assume the parental role within time to meet the child's needs. Ibid. "The . . . analysis entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The burden rests on the party seeking to terminate parental rights "to demonstrate by clear and convincing evidence" that risk of "serious and lasting [future] harm to the child" is sufficiently great as to require severance of parental ties. Ibid. The balance between fundamental parental rights and the State's parens patriae responsibility is achieved through the best interests of the child standard. K.H.O., supra, 161 N.J. at 347. Under that standard, parental rights may be severed when:

(1) The child's health and development have

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 foster 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-15.1(a).]

These standards are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children. K.H.O., supra, 161 N.J. at 348. The considerations involved in determining parental unfitness are "'extremely fact sensitive'" and require particularized evidence that addresses the specific circumstances of the specific case. Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).

In reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the trial court's credibility determinations and its "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988). We are not to disturb the judge's findings unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Applying these principles, in the light of the written arguments presented by the parties, we conclude that the evidence overwhelmingly supports the findings and conclusions of the court in terminating the parental rights of L.A., and we affirm substantially for the reasons expressed by Judge Cohen in his thoughtful and comprehensive oral opinion delivered on December 5, 2005.

 
Affirmed.

According to the guardianship complaint filed by DYFS, L.A. is known by several different names, and has given several different dates of birth. Throughout the pleadings in the Family Part, and in this appeal, she has been given the initials of "L.S." However, since the child's initials are also "L.S.," in order to avoid confusion, we have used "L.A." to designate the defendant in this opinion.

N.J.S.A. 30:4C-11.3c provides that, where a child is placed in the custody and care of the Division, the Division is not required to provide reasonable efforts to reunify the child with a parent where the court determines that "[t]he rights of the parent to another of the parent's children have been involuntarily terminated."

(continued)

(continued)

14

A-2720-05T4

RECORD IMPOUNDED

July 25, 2006