NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.D. AND E.H.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0932-06T40932-06T4

A-0933-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

H.D. AND E.H.,

Defendants-Appellants,

IN THE MATTER OF THE

GUARDIANSHIP OF

A.E.H.D., a Minor.

 
____________________________________

Argued September 19, 2007 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from Superior Court of New Jersey,

Chancery Division - Family Part, Morris

County, No. FG-14-21-06.

Janet A. Allegro, Designated Counsel, argued

the cause for appellant H.D. (Yvonne Smith

Segars, Public Defender, attorney; Ms. Allegro,

on the brief).

Philip Lago, Designated Counsel, argued

the cause for appellant E.H. (Yvonne Smith

Segars, Public Defender, attorney; Mr.

Lago, of counsel and on the brief).

Patricia O'Dowd, Deputy Attorney General,

argued the cause for respondent New Jersey

Division of Youth and Family Services (Anne

Milgram, Attorney General, attorney; Andrea M.

Silkowitz, Assistant Attorney General, of

counsel and on the brief).

Nancy E. Scott, Assistant Deputy Public Defender,

argued the cause for minor child-respondent A.E.H.D. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. Scott, on the brief).

PER CURIAM

H.D. is the mother, and E.H. the father, of A.E.H.D, a little girl, now four and one-half years old. Following a four-day bench trial, the trial court entered a judgment terminating their parental rights. H.D and E.H. each appealed separately from that judgment; their appeals have been consolidated. After reviewing the record in light of the contentions advanced on appeal, we affirm the judgment terminating the parental rights of both H.D. and E.H.

H.D. and E.H. were never married to each other, and each has children through other relationships. These other children were not the subject of the proceedings below. The relationship between H.D. and E.H. ended prior to the birth of their daughter. H.D. has a nine-year-old daughter, M.G., and a son, D.M.D., nearly three years old. M.G. is in the custody of her biological father, and D.M.D. is in the custody of H.D. H.D. has never identified the father of D.M.D. Since August 2004, when she was fourteen months old, A.E.H.D., the subject of this appeal, has resided with a foster family that wishes to adopt her.

H.D.'s first dealings with the New Jersey Division of Youth and Family Services ("DYFS") occurred prior to the birth of A.E.H.D. DYFS received several reports that H.D. was neglecting M.G. DYFS investigated each such report and concluded that M.G. was not at risk. In May 2003, DYFS received a report that H.D. was at a bowling alley with A.E.H.D. and was intoxicated. The local police department responded to investigate and advised DYFS that the report was inaccurate in that H.D. was not intoxicated. The following day DYFS investigated H.D.'s situation and found that she was living with M.G. and A.E.H.D. in a third-floor room she was renting. DYFS was concerned with the physical surroundings, but H.D. told the DYFS worker she had to leave that day at the request of the landlord.

H.D.'s removal from that location was the first of many moves that she and her children experienced in a short period of time. H.D.'s mother and stepfather would permit her to stay with them only for the weekend. DYFS then arranged a temporary stay for H.D. and the children at a motel and then at Interfaith Shelter. H.D. was asked to leave the shelter because she did not comply with its rules. M.G. then went to reside with her biological father, with whom she remains. H.D. and A.E.H.D. went to stay with another friend of H.D.'s. The two stayed with that friend for approximately one month. The DYFS caseworker stressed the need for H.D. to secure employment and stable housing, but H.D. refused to participate in the programs that were offered because she had not been ordered by a court to do so. Eventually, the friend communicated with DYFS about her concerns, particularly that H.D. would leave the baby with her for long periods of time. She also stated that she had witnessed H.D. push M.G. near the top of a flight of stairs on an occasion when M.G. was visiting. The friend eventually indicated that while A.E.H.D. could remain, H.D. would have to leave.

H.D. and A.E.H.D. then stayed at another shelter in Morristown. She was again terminated from this shelter because of her refusal to abide by the rules and to seek employment. Although H.D.'s caseworker was able to obtain two extensions for H.D., she remained non-compliant and had to leave. By this time, she was again pregnant. DYFS located another shelter, which would admit H.D. H.D. refused to go, however, because that shelter would not permit her to bring A.E.H.D.

H.D.'s caseworker began to seek out potential placements for A.E.H.D. and approached E.H. and his parents, with whom he was residing. E.H. expressed an interest in caring for A.E.H.D., and his parents said the child was welcome in their home, although they would not permit H.D. to stay there. Other residents of the household included E.H.'s brother and sister, E.H.'s girlfriend, his girlfriend's sister, and his two children from an earlier relationship. E.H. told DYFS that he had had drug problems in the past but was now clean and had a stable job. The DYFS caseworker verified his employment and participation in an outpatient drug treatment program, and A.E.H.D. then went to live with E.H.

In June, DYFS filed a protective services complaint for M.G. and A.E.H.D., and an order was entered placing A.E.H.D. in the legal custody of DYFS and the physical custody of E.H. Unfortunately, approximately two and one-half months later, DYFS learned that both E.H. and his girlfriend were arrested on drug-related charges. E.H.'s parents expressed shock and dismay at their son's arrest; they told DYFS that A.E.H.D. was welcome to stay and that they would care for her. However, they refused to complete the necessary background check. In particular, they refused to submit recent fingerprints for themselves and the other adults living in the house. They continued in this refusal even after being told that their refusal would require DYFS to place A.E.H.D. in foster care. On August 25, 2004, A.E.H.D. was placed with a foster family and has since resided there continuously.

During this time, H.D. did nothing to stabilize her situation. Her caseworker on several occasions drove her to various locations to seek employment, to no avail. H.D. told her caseworker that she was sleeping in her car or staying with the Salvation Army when it had an open bed. H.D. denied this at trial, saying she had been staying with a friend.

In September 2004, H.D. told DYFS that she was leaving New Jersey and relocating to Arizona, where she would stay with an uncle and aunt. At trial, she explained that she moved to make a fresh start and get away from bad influences; she was also concerned that DYFS might seek to obtain custody of her baby when it was born.

Prior to leaving, H.D. submitted to a court-ordered psychological evaluation at the Family Enrichment Program at Morristown Memorial Hospital. The Program submitted a report noting that H.D. had been diagnosed with Attention Deficit Disorder as a child and had "chronic history of instability in her living arrangements, employment and relationships . . . a history of poor judgment and decision-making, and . . . limited insight and empathy about the impact of chronic instability and [of] her upcoming move on her children." It recommended she participate in individual therapy and parenting classes. Shortly after submission of that report, H.D. departed for Arizona, and in October she informed DYFS that she was residing with her aunt, D.A.R., and uncle, W.R., in a trailer home on a twenty-acre ranch in Snowflake, Arizona. She said that in exchange for room and board she helped to care for the animals on the property and assisted her aunt with her puppy-breeding business. In December, she gave birth at home to her son, D.M.D.

In February 2005, both D.A.R. and W.R. traveled to New Jersey to participate in a court-ordered psychological evaluation. The report revealed that both had, in the past, abused drugs and been involved with the criminal justice system. Prior to their marriage, each had a child from an earlier relationship. They had two children of their own and raised the four together. Three of the children were the victims of sexual abuse, as was D.A.R. herself. D.A.R. had been diagnosed as suffering from bi-polar disorder, as had one of their sons. D.A.R. reported that she took her medications regularly, while her son did not. She stated that the two had learned to stay away from one another if one was in a manic phase because it could affect the other. The son had tried to kill himself several years earlier, and D.A.R. said that she in the past had had thoughts of suicide.

W.R. is an over-the-road trucker and home only a few weekends a year. He knew that three of the children had been sexually molested but knew none of the details. Nor did he know the circumstances around his son's attempted suicide. The evaluator described him as "self-protective and aloof" and preferring a "peripheral role in social and family relationships." The evaluation concluded in the following manner:

This evaluation concluded that both . . . have a notable history of high risk parenting behaviors. Both significantly abused drugs and Mr. [R.] also abused alcohol. [Both] were involved in antisocial behaviors leading to arrests, as well as incidents of domestic violence. Their biological children have been the victims of sexual abuse. While the [R's] have a history of these behaviors, most of the risk factors (substance abuse, antisocial behaviors and domestic violence) are in the distant past. [They] appear to have stabilize[d] their home life. However, Mr. [R] is only peripherally involved with the family and Mrs. [R] continues to experience suicidal ideation when "overwhelmed" and she is not currently in individual therapy. In addition, neither parent had a clear understanding of [H.D.'s] history of neglectful parenting.

The trial court thereafter ordered an interstate evaluation of the R. household to determine whether it was an appropriate placement for A.E.H.D., and DYFS requested Arizona's Children Association to undertake the task. A caseworker from that program made one visit to the home and submitted a report in June 2005 detailing her observations and conclusions that it was an appropriate placement for A.E.H.D. DYFS was not satisfied with the scope and depth of that report and requested a follow-up evaluation. A second report in November 2005 by the same caseworker expressed reservations, however.

Also in November, H.D. participated in another psychological evaluation through Family Enrichment Program. The evaluators noted that H.D. had made minimal progress since October 2004 in that she had still not achieved consistent employment or an independent living arrangement. Thereafter, DYFS changed its goal from reunification to termination of parental rights and filed its guardianship complaint in March, 2006.

During the four-day bench trial in August 2006, DYFS presented the testimony of its expert, Dr. Jewelewicz-Nelson, two of H.D.'s caseworkers, the supervisor of the adoption unit, and A.E.H.D.'s foster mother. In addition to setting forth the circumstances that led to DYFS obtaining legal custody of A.E.H.D. and H.D.'s unsuccessful efforts to cure the problems that led to that, the evidence at trial also established that A.E.H.D. suffers from delays in speech and physical coordination. She has been deemed eligible to participate in special programs to assist her in overcoming these difficulties. H.D. presented the testimony of her expert, Ronald G. Silikowitz, Ph.D., and herself.

E.H. did not present any witnesses at trial. By the time the matter came on for trial, E.H. was incarcerated, having been adjudicated guilty of distribution of a controlled dangerous substance and of violating the terms of his earlier probation. In light of his past criminal history, he was serving an extended-term sentence for his drug conviction and a consecutive sentence for his violation of probation. He will not become eligible to even be considered for parole for several years. At the conclusion of all the evidence, the trial court placed an oral opinion on the record, setting forth its findings and conclusions in support of its determination that DYFS had established by clear and convincing evidence that the parental rights of both H.D. and E.H. should be terminated. Shortly before this appeal was heard, we granted the motion of DYFS to supplement the record to establish that H.D. and her aunt no longer lived in Arizona, the trailer having burned down. H.D. had returned to New Jersey and was living with her current boyfriend. D.A.R. had moved to Missouri to join her husband and had taken D.M.D. with her.

On appeal, H.D. raises the following contentions:

POINT I THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS TEST" WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

(A) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THE HEALTH AND DEVELOPMENT OF THE CHILD WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.

(B) THE PARENT IS WILLING OR ABLE TO ELIMINATE THE HARM FACING THE CHILD.

(C) THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP H.D. CORRECT THE CIRCUMSTANCE WHICH LED TO HER CHILD'S PLACEMENT OUTSIDE THE HOME.

(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

POINT II [THE] TRIAL COURT ERRED IN ALLOWING TESTIMONIAL AND DOCUMENTARY EVIDENCE TO BE ADMITTED INTO EVIDENCE AGAINST THE DEFENDANT, CONTRARY TO N.J.R.E. 803(c)(6).

POINT III THE TRIAL COURT'S FINDINGS SHOULD BE REVIEWED DE NOVO AND THE TRIAL COURT'S DECISION TO TERMINATE PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT INCORRECTLY INTERPRETED THE STATUTORY REQUIREMENTS NECESSARY FOR TERMINATION OF PARENTAL RIGHTS.

On appeal, E.H. makes the following contentions:

POINT I THE JUDGMENT OF GUARDIANSHIP, WHICH TERMINATED DEFENDANT'S PARENTAL RIGHTS, MUST BE REVERSED BECAUSE DYFS DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE EACH OF THE FOUR NECESSARY PRONGS TO JUSTIFY TERMINATION OF DEFENDANT'S PARENTAL RIGHTS.

(1) THE CHILD'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE SERIOUSLY IMPAIRED BY THE PARENTAL RELATIONSHIP.

(2) THE PARENTS ARE UNABLE OR UNWILLING TO ELIMINATE THE HARM AND DELAYING PERMANENT PLACEMENT WILL ADD TO THE HARM.

(3) REASONABLE EFFORTS BY DYFS.

(4) THE TERMINATION OF PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

POINT II THE JUDGMENT OF GUARDIANSHIP, WHICH TERMINATED DEFENDANT'S PARENTAL RIGHTS, MUST BE REVERSED BECAUSE THE LOWER COURT ERRED IN ADMITTING A DOCUMENT CONCERNING H.D.'S EMPLOYMENT INTO EVIDENCE.

Having carefully reviewed the trial record, we can perceive no basis to upset the judgment entered by the trial court.

In accord with the standards articulated in New Jersey Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), DYFS may seek to terminate parental rights on the grounds of the "best interests of the child" if:

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).]

The trial court's findings with respect to these four prongs are amply supported by the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

The focus of the first prong of the best interests test is the effect of harms arising from the parent-child relationship over time on the child's health and development. New Jersey Div. of Youth & Family Servs. v. P.P. 180 N.J. 494, 506 (2004). DYFS need not present proof that the child has been physically abused; proof of psychological and developmental harm may be sufficient. In re Guardianship of R. G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977). Additionally, "harms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents, the severing of which would cause profound harm." New Jersey Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (quoting In re Guardianship of J.C., 129 N.J. 1, 18 (1992)).

Here, the trial court noted in its oral opinion that A.E.H.D. was harmed by H.D.'s "pattern of unstable housing, lack of steady employment, and poor decision making," a pattern that resulted in the child living in approximately eighteen homes or shelters in her first eighteen months of life and that she was further harmed when H.D. decided to relocate to Arizona. The trial court rejected H.D.'s testimony as to the supposed permanence and stability of the arrangements in Arizona. Assessment of the worth and quality of that testimony was particularly within the domain of the trial court.

E.H. visited similar harm upon his daughter. His resumption of his criminal activities resulted in A.E.H.D. being removed from his home and being placed in foster care.

Along the same vein, the trial court found that H.D.'s long-standing pattern of behavior indicated that she was either unwilling or unable to alleviate the problems that led to A.E.H.D.'s initial placement. It noted that despite the length of H.D.'s stay in Arizona, she had yet to do something as simple as open a checking account. It also noted that Dr. Jewelewicz-Nelson expressed the opinion that there was little possibility that H.D.'s pattern of behavior would change. E.H.'s extended incarceration, moreover, makes him unable to alleviate or eliminate the harm he has visited upon her. The record supports the trial court's finding that DYFS had established the second prong.

Both H.D. and E.H. complain that DYFS did not make sufficient efforts to reunite them with A.E.H.D. We disagree. It was H.D.'s own behavior which led to her removal from the shelters DYFS had located for her and which made finding another shelter difficult. DYFS referred H.D. to various programs, but she refused to participate because she had not been ordered by a court do so. DYFS attempted to find support for H.D. from members of her family, but her past behavior made them unwilling to provide shelter for her. Her caseworker even drove her to search for employment, for absent employment H.D. could not stabilize her situation. Although H.D.'s decision to relocate to Arizona made reunification more difficult, DYFS paid the costs associated with her various trips to New Jersey in connection with these proceedings, during which she would visit with A.E.H.D.

As to E.H., DYFS made several attempts to convince his parents to complete the necessary paperwork to permit a background check to be performed to determine if their home was an appropriate placement for A.E.H.D. Despite their expressed willingness to care for her, they were unwilling to take the necessary steps to permit A.E.H.D. to remain in their home and in their care. The trial court's conclusion that DYFS made reasonable efforts at reunification is supported by the record.

The trial court also concluded that termination of the parental rights of H.D. and E.H. would not do more harm than good. The question presented in connection with this prong "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." In re Guardianship of K.H.O., 161 N.J. 337, 355 (1999). Dr. Jewelewicz-Nelson testified that the harm A.E.H.D. would suffer if separated from her foster parents could not be fully mitigated, even if she received excellent therapeutic services. H.D., with her attention deficit disorder and pattern of instability, would be unable to mitigate that harm. Dr. Silikowitz recognized the deep bond that existed between A.E.H.D. and her foster parents and recommended placement with H.D., conditioned upon his understanding that H.D. would see to continued contact between the child and her foster parents. The trial court set forth upon the record its reasons for rejecting Dr. Silikowitz's opinion that A.E.H.D. would experience the greater harm if her parental ties with H.D. were severed. We defer to the trial court in its assessment of the credibility and worth of Dr. Silikowitz's opinions. Our review of the testimony offered by the parties convinces us that DYFS established this fourth prong as well.

The final issue raised on appeal relates to an issue which arose during H.D.'s testimony, when she related that she was employed at Ed's IGA in Snowflake and expected to return to that job when she returned to Arizona. This testimony was the first notification to DYFS of this employment, and Dorothy Rand, the supervisor of the adoption unit, telephoned the store to inquire. She testified on rebuttal that she spoke to the manager and was informed that H.D. had worked part-time for two months but was no longer employed there. H.D.'s attorney asked for the opportunity to provide confirmation of her employment. On the next trial day, H.D. did not make a proffer of such confirmation, but DYFS presented a faxed statement on the letterhead of Ed's IGA asserting that H.D. no longer worked there. H.D.'s attorney did not object to the admission of this statement, while E.H.'s attorney did. The trial court deemed it admissible under the business record exception to the hearsay rule. N.J.R.E. 803(c)(6). Both H.D. and E.H. now argue on appeal that the trial court improperly admitted this statement.

To qualify for admission under N.J.R.E. 803(c)(6), "the writing must be made in the regular course of business[;] . . . it must be prepared within a short time of the act, condition or event being described[; and] . . . the source of the information and the method and circumstances of the preparation of the writing must justify allowing it into evidence." State v. Matulewicz, 101 N.J. 27, 29 (1985) (citing State v. Hudes, 128 N.J. Super. 589, 594 (Cty. Ct. 1974)). The faxed statement does not meet this three-pronged test. It was not prepared in the regular course of IGA's business; it was not prepared within a short time of H.D.'s leaving IGA; and it was prepared specifically for trial at the request of one of the litigants.

We are satisfied, nonetheless, that the admission of this evidence does not provide a basis to reverse the trial court's judgment. The critical issue at trial was A.E.H.D.'s need for permanence and stability, not whether H.D. had a position waiting for her at Ed's IGA when she returned to Arizona. The evidence in favor of termination can accurately be described as overwhelming. The admission of this one piece of evidence cannot fairly be considered as having led the trial court to a result it would otherwise not have reached.

The judgment under review is affirmed.

 

In our review of this matter, it has not escaped our notice, for example, that the history that H.D. provided to the Arizona caseworker did not coincide with portions of her testimony at trial. She told the caseworker, for instance, that she had never been married. Her trial testimony, however, indicates that she had married M.G.'s father when she was approximately seventeen years old. H.D. told Dr. Jewelewicz-Nelson, the expert on behalf of DYFS, that she had married E.G. in Guatemala but that the marriage was not recognized in this country. Further, she provided the name of M.G.'s father as a reference to the Arizona caseworker, but there is no indication in the report that the worker was advised that he was M.G.'s father. Indeed, that report contains no indication that H.D. was ever involved with E.G. at all.

(continued)

(continued)

19

A-0932-06T4

RECORD IMPOUNDED

October 17, 2007