NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. F.P.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2070-06T42070-06T4

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

F.P.,

Defendant-Appellant.

_______________________________________

I/M/O THE GUARDIANSHIP

OF N.P.,

A minor.

_______________________________________

 

Submitted May 23, 2007 - Decided June 20, 2007

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. FG-02-65-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jennifer D. Dougherty, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for respondent minor (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant F.P. appeals from an order filed on October 31, 2006, terminating her parental rights to N.P., and awarding plaintiff Division of Youth and Family Services (the Division) guardianship, care, custody, and control of the minor child for purposes of adoption. We affirm.

I.

N.P. was born on August 10, 1997. F.P is her mother and J.A. is her father. The child was born deaf in both ears, and in January 2000, a cochlear implant was placed in her left ear. F.P. and J.A. later divorced. The Division's involvement with the family began on August 22, 2003, when F.P. threatened to kill J.A. during a court hearing on F.P.'s application for an increase in child support. The judge summoned a Division worker and asked to have F.P.'s mental state evaluated.

The screener found that F.P. did not pose a risk of harm to N.P; however, after F.P. was told that a domestic violence restraining order had been entered against her, and her application for an increase in child support had been denied, F.P. became irate and told the Division's worker to put the child in foster care, or send her to live with J.A. F.P. exited the courthouse leaving the child behind. N.P. was temporarily placed with N.P.'s maternal uncle K.P. and his wife S.P. The Division filed a protective services complaint on August 25, 2003. On August 25, 2003, the judge granted the Division custody, care and supervision of N.P. and ordered psychological evaluations of F.P. and J.A.

In January 2004, K.P. and S.P. advised that they were unable to continue to care for N.P. The Division contacted other family members but none were available to take responsibility for N.P.'s care. Consequently, the child was placed with foster parents J.S. and E.S. At the time, J.S. was a teacher at the school in Hackensack where N.P. was enrolled. J.S. teaches deaf and handicapped students, and she is a sign language interpreter. F.P. expressed her concern over this placement because she believed that J.S. would promote the use of sign language rather than encourage N.P. to speak with the assistance of her cochlear implant.

The Division thereafter took steps towards reunification of the child with her birth parents; however, in August 2005, the Division elected to seek termination of parental rights because F.P. had advised the Division that she intended to move from Bergen County to Princeton, refused to tell the Division where she would be living, said that she would place the child in a learning environment that was not able to provide the sort of services that N.P. required, and conveyed to the Division's caseworker that she was not willing to cooperate with the Division following reunification with the child.

On October 20, 2005, the Division filed its complaint in this matter. J.A. thereafter agreed to surrender his parental rights to the child. Trial in the matter was held on July 24, July 25, September 11, September 13, and September 22, 2006. The Division presented testimony from psychologist Frank J. Dyer, Ph.D. (Dyer); its supervisors Jennifer Koegel and Dolores Cunneely (Cunneely); its case manager Candice Morin (Morin); mental health therapist Sari Breuer (Breuer); case worker Cristina Keresztes; school supervisor Carolyn Mascia Reed (Reed); and psychologist Elizabeth Smith, Psy.D. F.P. did not testify but testimony on her behalf was presented by her grandfather; K.P.; and psychiatrist Syed Arshad Husain, M.D. (Husain).

Following the trial, the judge filed a written opinion in which he concluded that the Division had met its burden of proof and had established by clear and convincing evidence all of the criteria necessary for the termination of F.P.'s parental rights. The judge entered an order on October 31, 2006, in conformance with his opinion, and this appeal followed.

II.

F.P. first argues that the judge erred by concluding that N.P. was harmed by the parental relationship. F.P. also contends that she is capable of providing a safe and stable home for the child in a reasonable time.

"Parental rights, though fundamentally important, are not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "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. The "best interests" standard requires clear and convincing evidence that:

(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 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 [D]ivision 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.]

The criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., supra, 161 N.J. at 348.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). Furthermore, because the judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Based on our careful review of the record, we are convinced that there is sufficient credible evidence in the record to support the judge's findings and conclusions. F.P. argues, however, that she has a constitutional and statutory right to choose the educational plan for her child, and New Jersey law permits home schooling. F.P. asserts that the Division does not have the right to seek termination of parental rights because of its view that an educational plan other than home schooling would be better for the child.

We disagree. This is not a matter where the Division sought the termination of parental rights merely because it believed its plan for N.P.'s education was better than F.P.'s. The Division's plan was based on input and recommendations from persons with knowledge and experience in teaching deaf students; F.P.'s alternatives were not.

The record shows that N.P. had been placed at her school prior to the Division's involvement in this matter, apparently with no objection from F.P. At the time of trial, N.P. had been at the school six years. Reed, the supervisor of the school, testified that N.P. had been evaluated, and a recommendation made that N.P. be placed in a total communication program, which involves the use of sign language and a hearing aid or cochlear implant.

Reed also explained that N.P. had been mainstreamed in certain classes at a nearby public school, with "signed interpreting" when required. Reed noted that N.P.'s expressive and receptive communication skills had significantly improved in the time she had been at the school. Reed said that N.P. was able to communicate without sign language. N.P. also was able to communicate with speech, but her ability to do so "depends on the level of communication."

Reed added that N.P.'s education plan for 2004 proposed that N.P. remain in a school environment that provides access to a total communication experience because of N.P.'s severe deficits in attention, behavior, communication, and social skills. Reed testified that it would be "very, very difficult" for N.P. if she were home schooled. Reed stated:

Socially she wouldn't be with her peers. The deaf [are] their own community. She wouldn't be with her peers of . . . deaf students. She would [not] have the opportunity to be with her hearing peers, and possibly a mainstream situation. So the whole school environment is geared in that total communication philosophy to provide the optimum educational environment.

Reed was asked what the effect would be if N.P. was placed in a school without any supporting services or any knowledge of working with the deaf. Reed replied that she and the other members of the child study team believed that if N.P. were removed from a program for the deaf, and placed either in a home schooling situation, or a school that had no services whatsoever, then N.P. would "not make the strides" that she was making socially and academically.

Cunneely, the Division's supervisor with responsibility for overseeing this case, testified that in 2003, the Manhattan Eye, Ear & Throat Hospital (MEE&TH) recommended continuing the services that N.P. was then receiving in order to improve her auditory skills. Cunneely said that if the child was home schooled, those services "wouldn't be there." Cunneely also stated that N.P. had been evaluated at Hackensack University Medical Center, which found that the services she was receiving at the school were appropriate.

Cunneely added that F.P. never explained how she intended to home school N.P. F.P. indicated that she would work part-time and have a babysitter for the remainder of the time. Furthermore, in or about March 2005, F.P. proposed that N.P. attend a private religious school in Jersey City. Cunneely contacted the school and was told that it had never had a hearing impaired student, and no one in the school used sign language to communicate.

Morin testified that F.P. had insisted on mainstreaming the child in a public school or in a private religious school. Morin contacted MEE&TH and was told that N.P. should be reassessed to determine if she could be successful in a mainstream setting. Morin also contacted Bergen County Special Services (BCSS) to determine whether there were other schools in the area that N.P. could attend.

Morin located a school with an opening in May 2005, and asked whether F.P. would agree to allow N.P. to complete the school year before a change was made. However, F.P. because irate and stated that she did not want the child in a total communication program. F.P. also did not want N.P. to continue to be in the school where J.S. was a teacher.

Morin was asked whether F.P. had ever informed the Division how N.P. would receive the recommended services if she were home schooled or placed in a private religious school. Morin replied that F.P. was "very abrupt" and never explained how the child's needs would be met. "It was always just this is what I want and this is how I want it to be."

Breuer, a therapist who works with deaf individuals and their families, had been providing therapy to N.P. since August 2004. Breuer testified that she communicated with N.P. using sign and speech. Breuer stated that, based on her experience working with deaf children, she had a "great concern about home schooling for deaf children on an emotional basis." Breuer said that deaf children are "very isolated within society" and someone who is home schooled "would be even more isolated" and it would be "devastating" to a child's "emotional health."

We are satisfied that the record clearly and convincingly established that home schooling of N.P., or her placement in a private school that does not offer the services required for the child's special needs, would be harmful to the child's development. We recognize that a parent ordinarily has the right to make decisions regarding his or her child's education; however, when a parent insists on an education plan that has no professional support whatsoever, and when the plan would inhibit rather than advance the child's development, the parent's choices may be viewed as harmful to the child.

We emphasize that the judge's finding that N.P. had been harmed by her relationship with F.P. does not rest solely on the evidence regarding F.P.'s inappropriate choices regarding her education. The record here includes evidence that F.P. had abandoned the child at the courthouse; failed to visit the child for a ten-month period; repeatedly delayed in completing a sign language course; moved to Princeton and refused to advise the Division where she was living; and conveyed to the Division that it would not cooperate with any follow-up if the child was reunited with her.

Moreover, Dyer performed a psychological evaluation of F.P. and diagnosed F.P. as suffering from major depressive disorder, in full remission; personality disorder, not otherwise specified, with prominent narcissistic, borderline and paranoid features. Dyer testified that "the most significant information that [he] obtained in [his interview with F.P.] was [F.P.'s] perception that she was totally blameless in regard to anything affecting her daughter." Dyer asserted that F.P. had presented herself in a "very personable, rational manner" and "somebody interacting with her would not suspect that there were any deficiencies in regard to her parenting ability." Dyer noted, however, that when F.P. is under stress, she is vulnerable to regressive states, in which she becomes either emotionally volatile or depressed.

Dyer said that N.P. would be "at risk for neglect in that [F.P.] is an emotionally volatile individual who is capable of a very serious form of psychological regression." Dyer stated that it was conceivable that N.P.

might be exposed to behaviors that would parallel the behaviors that [F.P.] presented during [the] hearing where the psychiatric crisis team was called to intervene and she actually wound up abandoning . . . the child with a [Division] worker, which she later rationalized as being completely insignificant and an innocuous act of [leaving] the child in the care of a [Division] worker while she briefly went out to get a breath of air.

Also, the paranoic aspect of the personality disorder would place [N.P.] in jeopardy as well in the sense that [F.P.]'s tendency to view anyone who is even remotely at odds with her on any issue as being a persecutor, that would prevent her from taking actions and accepting advice that was actually in the child's best interest. That [F.P.] would be likely to act on the basis of her own misperceptions of reality in such a situation, [thereby] exposing [N.P.] to risk.

And finally, . . . the narcissistic element of [her] personality disorder equips [F.P.] very poorly to appreciate [N.P.'s] needs, feelings, and overall situation.

Accordingly, we are convinced that there is sufficient credible evidence in the record to support the judge's finding that N.P. had been harmed by the relationship with F.P., and F.P. was unable or unwilling to eliminate the harm within the reasonably foreseeable future.

III.

F.P. additionally argues that the Division failed to make reasonable efforts to reunite N.P. with her biological family; the Division did not consider alternatives to terminating her parental rights; and termination of parental rights will do more harm than good to the child. Again, we disagree.

Here, the record shows that the Division endeavored to reunite N.P. with her mother. F.P. was referred for psychological evaluations and therapy. Visitations were arranged; however, as noted previously, F.P. did not avail herself of the opportunity to visit with the child for ten months. The Division also arranged for family therapy but F.P. refused to attend and advised Breuer that she would not use her as a therapist.

In addition, permanency hearings were held in August 2004, December 2004, and March 2005, and the Division sought extensions of time in order to continue its efforts to achieve the goal of reunification. Indeed, the Division remained committed to reunification until August 2005, when F.P. relocated and made clear that she did not intend to cooperate with the Division. We are satisfied that the Division's efforts were reasonable.

The record also supports the judge's finding that termination of F.P.'s parental rights will not do more harm than good. Dyer performed evaluations of N.P.'s bonds with F.P. and her foster parents. Dyer testified that N.P. "was very clear in her preference to stay with the foster parents." Dyer stated that F.P. "no longer occupie[d] a position of centrality in this child's life, in this child's inner emotional world." According to Dyer, N.P. viewed her "foster parents as her central parental love objects." In addition, Dyer opined that if N.P. was removed from the foster home, it would "inflict a traumatizing loss" upon the child, which would result in "some sort of behavioral regression." Dyer predicted that there would be a "regression in this child's communication and self help skills if she were to lose her central parental love objects."

F.P. argues that the judge erred by failing to give weight to Husain's testimony. Husain testified that if N.P. was removed from her foster parents, there would be some "initial regression" but the child would eventually respond to her "mother's continued love and attention." Husain added that therapy would help N.P. overcome the regression and her own "resiliency . . . will come forward and help her to readjust." However, because Husain did not perform any bonding evaluations, the judge properly accorded no weight to his testimony on these issues.

We have considered F.P.'s other contentions and are satisfied that they are not of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

The recommendation was contained in a letter dated September 3, 2003, written by Deborah A. Lee (Lee), the Coordinator of the Cochlear Implant Center of MEE&TH. In her letter, Lee stated that continuation of the services would enable N.P. "to learn to make use of her auditory pathways and acquire speech, language and auditory skills in spite of her degree of hearing loss." Lee also stated that it was "critical that [N.P.] continue to receive all necessary educational and therapeutic services for her to learn to maximize her auditory potential."

(continued)

(continued)

15

A-2070-06T4

RECORD IMPOUNDED

June 20, 2007