STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.W.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6362-04T46362-04T4

STATE OF NEW JERSEY

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.W.C.,

Defendant-Appellant.

____________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF J.C.,

a Minor.

_____________________________________________________________

 

Submitted February 1, 2006 - Decided March 2, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Bergen County,

FG-02-55-05.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for

respondent (Andrea M. Silkowitz, Assistant

Attorney General, of counsel; Michael A. Toya,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for respondent minor (Noel

Christian Devlin, Assistant Deputy Public

Defender, on the brief).

PER CURIAM

Defendant M.W.C. appeals from a final judgment terminating her paternal rights to her youngest son, J.C., who was born on January 19, 2003. Defendant is also the biological mother of five minor female children. All five daughters reside with their maternal great-aunt, O.B., in Virginia, and they are not part of this guardianship proceeding. J.C.'s father, T.C., has had little or no contact with J.C., and he has never supported or provided for his son. Although he was served with the guardianship complaint seeking to terminate his parental rights, J.C.'s father did not respond and default was entered against him in June 2005.

On appeal, M.C.W. makes the following arguments:

POINT I

THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED AND THE MATTER REMANDED BECAUSE THE TRIAL COURT'S ARTICULATED FACTUAL AND LEGAL CONCLUSIONS CONCERNING THE FOUR PRONGS OF THE "BEST INTERESTS" TEST WERE INADEQUATE.

POINT II

THE DEFENDANT DID NOT "HARM" J.C. UNDER THE FIRST PRONG OF THE BEST INTERESTS TEST AND WAS NOT "PARENTALLY UNFIT" UNDER THE SECOND PRONG OF THE BEST INTERESTS [TEST].

POINT III

UNDER THE THIRD PRONG OF THE BEST INTERESTS TEST, THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE THE DEFENDANT WITH REGULARLY SCHEDULED VISITATIONS.

POINT III

UNDER THE FOURTH PRONG, THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

We have carefully considered each of these arguments in light of the entire record, the briefs, and the applicable law, and we conclude that M.W.C.'s contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). We affirm substantially for the reasons expressed by Judge Sween in his written opinion of June 28, 2005. But a few comments are in order.

Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, however, it has also recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interest standard, initially formulated by the Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:40C-1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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-15.1(a).]

These requirements are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. The considerations involved in determining parental fitness are "extremely fact sensitive" and require particularized evidence that addresses the specific circumstances present in each case. In re Guardianship of K.H.O., 161 N.J. 337, 346-48 (1999).

The trial court heard testimony from two psychologists. Dr. Charles S. Hasson testified as an expert witness for the Division of Youth and Family Services (DYFS), and Dr. Paul Fulford testified as an expert witness for M.W.C. The trial court found Dr. Hasson's testimony to be more persuasive because his findings and conclusions were consistent with an earlier psychological evaluation performed by Dr. Fiore. In addition, the trial court found that some of M.W.C.'s character traits "discussed by Dr. Hasson during his testimony were evident when M.W.C. testified." Dr. Hasson's testimony included the following:

I looked at the information she gave to Dr. Fiore and all of the relationships were problematic. So I'm seeing a pattern here, problematic relationships with her parents, problematic relationships with other extended members, problematic relationships at work. I also noticed in Dr. Fiore's report that she reported to him that she was unable to keep a job for more than six months. I also noticed that there was discrepancies between her job history that she gave to Dr. Fiore and the job history that she gave to me. She had said that she had worked for six years or so as a nurse. She had indicated to him that she was traveling with her husband at the time, and she never had a consistent job as a nurse. She also indicated to Dr. Fiore that she had one year of college, and she indicated to me that she had two years of college at an art school. So there's discrepancies.

Q. How is employment history significant?

A. It's significant for two points. Once, is if there's discrepancies between what she says to one person at one point and another person at another point, it questions the reliability of what the person is saying to you. Either she's not being accurate or truthful with me or with Dr. Fiore. Also it reflects the fact if a person is stable in terms of being able to take care of a child on a regular basis. I did not get the sense from her of any stability in terms of a work history. What happened in her life that made it stable for her was the fact that after her mother died she inherited her mother's house and she inherited her mother's pension. Then she gave me three different amounts of money -- two different amounts of money [that she] was getting. . . . But there's inconsistencies that I see, . . . what she says . . . to me and what she says to other individuals.

. . . .

Q. What about in your interview with her? What was significant about what she told you regarding her drug history?

A. Well, what was significant was the fact that she had an earlier cocaine problem. She told me that she was abstinent for like eight years or so. She said to me that she went [back] to using drugs because of the death of her mother. But some of the information didn't wash because she tested positive before her mother died for cocaine. And then when I asked her about the reason for testing positive in Virginia, she gave me different [stories]. One story was that she had an allergic reaction at the hospital. Her second story was that she went out with some people while in Virginia and she was given a laced cigarette with cocaine in [it]. Then I see in the record that she had mentioned that she had gone to a shower, and at the shower there was the possibility of drugs being given to her. But then when I asked her about the shower situation, I noticed the discrepancy about where it occurred. At one point she says to me, it happened in New Jersey, but I looked in the record and it says that she told them that it happened in Virginia, so there was discrepancies in terms of that positive for cocaine.

Q. And why are these discrepancies important coming to any conclusion about her capacity to parent?

A. Basically it tells me . . . whether I could trust what she's saying to me. And so that when I ask her later on about what are the qualities of a good parent; yes, she's able to verbalize the qualities of [a] good parent and state[s] that she's a good parent. But I question, you know, how accurate that is, given the fact that she was untruthful to me or there was discrepancies at least on a whole host of information. Then what I'll try to do when I do an assessment is compare her actual behavior during the bonding to other suggestions in the record that leads me in a certain direction in terms of trying to understand the way she would parent a child.

Q. Well, what was your impression of [M.W.C.] during your interview?

A. She struck me as a person with a character disorder. . . .

Q. What do you mean by character disorder?

A. A character disorder is an individual that has problems getting along with other people. They tend to place the wrong interest of other people's interest, and she . . . struck me as an individual who was thin skinned, short tempered, rigid, and that if she didn't get her way, she could become very angry. So now when I do an assessment, what I want to do is not just rely on how someone strikes me as an individual, but I want to compare it to the psychological testing that's coming out to confirm or disconfirm. And I also want to confirm in terms of someone else doing psychological testing whether [there is] consistency, a pattern that fits.

. . . .

Q. Within a reasonable degree of psychological certainty, in your opinion, what would be the risk of placing [J.C.] in [M.W.C.'s] care?

A. There would be tremendous risk to that child, because while she can say what she's going to do, her actions, I don't believe, are going to follow in the same direction.

. . . .

It's my opinion based on her presentation to me, based on the testing, based on information in the record, based on the discrepancies that I picked up that she would be at high risk for not following through in terms of this child and not being there for the child when the child needed someone to be there, and not acting in a consistent manner towards this child, and given the fact that I suspect that she has problems with her parents based on what she said to me, that she would transmit the same difficulties she had with her parents to this child, that she was raised in a situation where she had to depend on herself based on the fact that she stated that her mother was never there for her, and I believe that that . . . would be the type of attitude she would transmit to the child, that if the child was in need, if the child was unhappy, if the child was crying, if the child was aggressive, or acted in any negative fashion, she would not be there to ameliorate those problems.

Based on M.W.C.'s trial testimony, Judge Sween found that she was not a credible witness:

On direct examination when she felt in control and was permitted to be expansive and embellish her responses she was relaxed and sure of herself. On cross-examination, when she was limited to responding directly to questions asked, her facial expression and posture changed and she became evasive and tried to avoid answering questions precisely.

And the trial court concluded as follows:

The evidence is clear and convincing that: (1) [M.W.C.] and [T.C.] have neglected their son, [J.C.], and he would be at risk if placed in the custody of either of them; (2) the Division offered and provided services to assist [M.W.C.] to overcome the causes of her neglect and she has been unable to do so; (3) the Division made reasonable efforts to find relatives to care for [J.C.]; (4) the best interests of [J.C.] will be served if his parents' parental rights were terminated to free him for adoption; and (5) termination of their parental rights will not do more harm than good.

A trial court's findings are binding on appeal when supported by "adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. "Deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Because a trial court hears the case, sees and observes the witnesses, [and] hears them testify, it has a better perspective than a reviewing court in evaluating the veracity of witnesses. Id. at 412 (alteration in original) (internal quotation marks and citation omitted).

Based on our review of the record, we are satisfied that the trial court's findings are fully supported by substantial credible evidence, and the decision to terminate M.W.C.'s parental rights is consistent with controlling legal principles.

Affirmed.

 

(continued)

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10

A-6362-04T4

RECORD IMPOUNDED

March 2, 2006