NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.R., and D.B

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2800-06T42800-06T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.R., and D.B.,

Defendants,

and

M.M.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF D.R. and M.R.,

Minor children.

_________________________________________________

 

Submitted October 9, 2007 - Decided October 25, 2007

Before Judges Collester, C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-229-06.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kelly B. Hicks, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent, New Jersey Division of Youth and Family Services (Lewis Scheindlin, Assistant Attorney General, of counsel; Mary Beth Wood, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor child, M.R. (Nancy E. Scott, Assistant Deputy Public Defender, of counsel and on the brief).

PER CURIAM

In this appeal, we review a judgment that terminated the parental rights of defendant M.M. to his daughter, M.R., who was born on December 27, 1997. M.M. argues that the Division of Youth and Family Services (Division) failed to prove each prong of the test contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. After careful examination of the record in light of the arguments posed, we find no merit in M.M.'s contentions and affirm.

The trial occurred over the course of six days. The judge heard the testimony of Division case workers, M.M. and his wife, K.M., and the parties' experts. The judge also received over 150 exhibits in evidence.

This evidence revealed that there was a factual dispute about when M.M. became aware he was the natural father of M.R., and the judge resolved that dispute by finding, as M.M. claimed, that he learned of this in April 2002 when the child's mother commenced an action for child support. The child resided with her mother, C.R., who retained sole custody, until the events that precipitated this termination action.

On June 1, 2004, M.M. contacted the Division to assert that M.R. was not safe with her mother and that he should receive custody of the child. He also asserted that if he could not obtain custody, then the child should be placed in foster care. A week later, M.R.'s mother advised a Division case worker that M.R. was going to stay with M.M., M.M.'s wife, and their six children. However, a few days later, the child's mother advised the Division that M.R. was not being properly cared for in M.M.'s home. A case worker paid a visit and spoke with M.M.'s wife, K.M., who stated that M.M. had become angry and had returned M.R. to her mother. Although the case worker advised M.M. that the home of C.R., the child's mother, was unstable and that it was likely M.R. would be removed from the mother's home and placed in foster care, M.M. refused to take the child back to his home.

On June 19, 2004, before they could be evicted, C.R., together with M.R. and her other daughter, D.R., moved to a hotel with the assistance of the Red Cross. A few days later, they were moved to a shelter.

On July 29, 2004, legal custody of M.R. and her sister, D.R., was transferred to the Division and the children were placed in foster care. When so advised, M.M. indicated a desire to take M.R. into his home. M.R. was placed in M.M.'s home on August 13, 2004.

This placement did not last long. In early October 2004, Division case worker Gloria Smith received a call from K.M. requesting M.R.'s removal. The trial judge recognized that there was a factual dispute about what was said and done at this time. He considered the conflicting testimony, and concluded that Smith was credible -- and M.M. and K.M. were not -- and found that K.M. wanted the child removed because: she never wanted the child in her home in the first place; she was coerced into accepting the child into the home through M.M.'s physical abuse of her; and that she was overwhelmed because she was also caring for her other six young children, who ranged from two to six years old.

M.R. and her sister were thereafter briefly placed in the home of a cousin of their mother's, but eventually placed in a foster home, where they presently remain.

The judge found that the Division did not immediately provide services to help M.M. correct the circumstances that led to the child's placement outside the home at or about the time of her removal in October 2004. Although this finding certainly gives pause, nevertheless there is substance in the judge's additional findings that:

there were no services provided for reunification . . . [because K.M.] wanted the child out, none were asked for and no services could address the reason for removal. Namely, we had a custodian [K.M.] who simply did not want the child, as expressed to the case worker. . . . She wanted the child out. The child's removal was acquiesced in or condoned by [M.M.]. Despite his intentions, it was acquiesced and perhaps begrudgingly agree[d] that it may have been best because his wife was overwhelmed.

Moreover, events that occurred soon thereafter triggered the Division's rendering of a great panoply of services that more than met the requirements of the statutory test's third prong.

That is, on March 23, 2005, M.M.'s four-year old daughter, Mi.M., was severely burned in a kitchen accident when her shirt got caught on the stove, somehow causing a pot of hot beef stew to fall upon her. Mi.M. was burned over forty percent of her body, and she required extensive skin grafting. As a result of this event, the Division commenced an abuse and neglect action against M.M. and K.M. An order was entered in that action on July 28, 2005, which memorialized the parents' stipulation that the condition of their home was not suitable, and held that their acts and omissions met the abuse and neglect standard of N.J.S.A. 9:6-8.21. The family was provided with cleaning services, in light of the deplorable condition of the apartment, as well as parental training, which had to be completed before Mi.M. would be permitted to return home. The judge made the following observations based upon the evidence presented:

There was training provided . . . for [the parents' treatment of Mi.M's] burns, . . . [and Mi.M.] could not return [home] until the parents completed their training. [K.M.] was not presently engaged. She was waiting for [M.M.] to get out [of] jail[], [because] she . . . testified that it would be easier so someone [could] watch the kids.

The training was incorporated with the visits. There were no visits with [Mi.M.] for the last three months. She spent four months in two hospitals and is now in foster care and has had no visits in three months.

The testimony was that there were only one or two more sessions to complete before this child could come home.

M.M. also had the benefit of a twenty-six-week anger management program prompted by a domestic violence restraining order that K.M. obtained against him. In addition, the family was referred to the Family Resource Center for in-home counseling, family therapy, coping skills, money management, and parenting skills. A homemaker was provided to assist with the family's budget and to insure they received appropriate meals. M.M. and K.M. were sent for job training/counseling. And services were also provided to K.M. in August 2006 because she was "cutting herself."

All these services were provided prior to September 2006. However, as observed in the margin, M.M. was arrested on September 6, 2006, and incarcerated because of his immigration status. The family was also evicted from their home. The judge thus described the family's status as it existed at the time of trial:

Despite the services and since September of '06, the family has been evicted. They spent one night in a shelter as a result of not being able to afford a monthly rent of $900. They were living in a two-bedroom apartment with the rent paid by and with the help of friends and family.

[M.M.] had testified his plan was to get a larger apartment and that he, in fact, had secured one at $1,300 with a 1,300-dollar security deposit owned by a friend of the family. . . . This was a four-bedroom apartment. He testified that he could get his old job back[, which paid] approximately $60,000.[] [I]t was established that a work permit would be necessary before he could do so and that his immigration matters would have to be addressed.

With regard to [Mi.M.'s] car[e], [K.M.] was overwhelmed before [Mi.M.] was burned and will have to administer the burn treatment responsibilities. . . . I'm satisfied [that the testimony] established that there were still financial, housing and legal uncertainties. [M.M.] now being out [of jail], . . . had a visitor's visa in 1994 for surgery for six months. He had overstayed that visa for 12 years and . . . was arrested and at least still ha[s] outstanding immigration matters, including a [need for a] work permit.[]

This is the environment that [M.R.] is being requested to be returned to.

Based upon these facts and circumstances, and the many other findings contained in his thorough oral decision, the judge terminated the parental rights of M.M. to M.R.

In his decision, the judge correctly recognized that to obtain a termination of parental rights, the Division was obligated to prove by 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 the delay of permanent placement will add to the harm . . .;

(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).]

See also N.J. Div. of Youth & Fam. Serv. v. A.W., 103 N.J. 591, 604-11 (1986). The judge carefully explained how each of these prongs was established by the evidence he found credible.

In concluding that the Division established that M.R.'s "safety, health or development has been or [would] continue to be endangered by the parental relationship," N.J.S.A. 30:4C-15.1(a)(1), the judge greatly relied upon the testimony of Dr. Elayne Weitz, the Division's expert, who, in part, stated that she did not believe M.M. could adequately parent M.R. because he presented "narcissistic, 'me first' symptoms." Even M.M.'s expert, Dr. Gerard Figurelli, acknowledged that testing results revealed the presence of narcissistic traits as well as M.M.'s struggle with "underlying feelings of powerlessness and with dependency needs." That M.M.'s "me first" approach would likely trump the best interests of M.R. was dramatically illuminated by M.M.'s persistence in seeking the return of M.R. into his home even though he was told, and understood, that removing M.R. from her foster home would cause her "severe and enduring harm."

Although the harm directly imposed upon M.R. while she actually resided in M.M.'s home might be viewed as minimal in light of the brief span in 2004 during which M.R. resided with M.M., the judge correctly emphasized that M.M. chose to have little or no relationship with the child from the time he learned he was her father in 2002 until the child's first stay in his home in June 2004. And, even when M.M. learned -- following his return of the child to her mother's custody in July 2004 -- that C.R. was providing an unstable environment and was likely to be placed in a foster home upon her mother's eviction, M.M. refused to take the child back into his home.

The risk of harm envisioned by the statute's first prong is that which has "continuing deleterious effects" on the child. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). This includes not only actual harm caused to the child, but also the risk of harm to the child in the foreseeable future. A.W., supra, 103 N.J. at 607; see also N.J. Div. of Youth & Fam. Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001). We are satisfied there was considerable credible evidence from which the judge could conclude, as he did, that the child had been harmed when in M.M.'s care, and that she faced considerable risk of harm in the foreseeable future if returned to M.M. Accordingly, the first prong of the statutory test was clearly and convincingly established.

The second prong required an inquiry into whether "[t]he 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." N.J.S.A. 30:4C-15.1(a)(2). In other words, the trial judge was required to determine whether "it is reasonably foreseeable" that the parent could cease to inflict or expose the child to harm. A.W., supra, 103 N.J. at 607. Here, the same evidence that revealed the potential for harm to the child in the foreseeable future, as discussed in the findings relating to the first prong, greatly inform the judge's finding in favor of termination on the second prong. Accord In re Guardianship of D.M.H., 161 N.J. 365, 378-79 (1999). The facts found by the judge amply demonstrated that M.M., despite his willingness, is unable to provide a safe and stable environment for M.R. His own narcissistic attitudes, together with how M.R.'s presence in the home had overwhelmed K.M., create a confluence of circumstances that, according to the evidence in the record, cannot be overcome.

In addition, the judge made extensive findings regarding M.M.'s "overbearing" and inappropriate attitude toward M.R. during his visits with her since she was placed in foster care. These visits have caused M.R., according to her therapist, to exhibit "serious negative behaviors," and M.R. has repeatedly mentioned her desire not to be present during M.M.'s visits with her.

And, despite the extensive services provided to M.M. and his family, nothing changed the environment M.M. would have M.R. re-enter. As explained by Dr. Weitz, upon whose testimony the judge greatly relied, M.M.'s home is overcrowded and chaotic, K.M. harbors ill will toward M.R., and it is unlikely that M.R. would receive adequate supervision. The judge found that because of M.M.'s personal traits, M.R. would "not be a priority in [M.M.'s] household," and, since M.R. is "not a resilient child," and since she is also strongly bonded to her foster family, a future failed placement would prove devastating to her. M.M.'s expert did not provide evidence to the contrary. Instead, he agreed that "[g]iven the nature and quality of [the] relationship that already exists between [M.M. and M.R.], as well as [M.R.'s] expressed preference to remain with her foster family, the loss of her relationships with her foster parents is likely to result in both a short-term and long-term significant adverse impact on her functioning and overall psychosocial development." In addition, the evidence clearly and convincingly supported the judge's conclusion that M.M. would not be able to help M.R. recover from the extreme psychological trauma she would experience if removed from the foster family, with which she has formed a very strong bond.

Lastly, what also cannot be overlooked is the cloud cast over all these circumstances by M.M.'s present lack of employment and uncertain immigration status. The record reveals that if M.R. were to be returned to M.M., and if he was subsequently deported, M.R. would enter an even more confusing situation. M.M. provided an uncertain picture of the future in the following testimony:

I understand the question and I can't give you an answer. I have my family here. I have my wife here, my brother is here, my sister is here, my mom coming [too]. If somehow I didn't get to get legalized, getting back to my country, my parents, my family, my brothers, my sisters will take care of my daughter. They've been taking care of my family as I'm in the jail.

This brooding uncertainty and the many other facts and circumstances contained in the judge's findings reveal that the second prong was clearly and convincingly established.

In considering the third prong, we observe that M.M. understandably has made much of the judge's finding that the Division did not immediately provide unification services when M.R. was removed from M.M.'s home in October 2004. But the judge also found there were no available services to deal with the fact that K.M. did not want the child in the home. Moreover, the record reveals that visitation services were provided and, following the unfortunate injury to Mi.M., many other services were provided to M.M. and his family. These services more than amply provided a means for ameliorating the risk of harm that the status quo posed and for promoting a stable environment for the future. Unfortunately, in light of the many circumstances outlined in the judge's opinion, a safe and stable environment was never established by the time of trial. We are satisfied that the judge was presented with clear and convincing evidence to support his finding that the third prong was met because the Division did, in fact, make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3).

The fourth prong requires a determination of whether the child will suffer a greater harm from the termination of her ties with M.M. than she would suffer from the permanent disruption of her relationship with her foster family. K.H.O., supra, 161 N.J. at 355. The judge found that even though there may at times "be engaging interaction" between M.R. and M.M., there was no bond or meaningful relationship between M.R. and M.M. In contrast, the judge found that M.R.'s relationship with her foster parents, who are "very eager" to adopt M.R., was strong, enduring and mutually gratifying, and that M.R. would be irrevocably harmed if removed from their care.

Dr. Weitz testified that M.R. is not "a resilient child" and that if required to leave her foster family, which includes her half-sister, D.R., she

would feel completely unvalidated [sic] because she has asked so many times not to leave this home where she feels comfortable. She would feel, I think, guilty and [would] worr[y] about what's happening with her sister. She would lose the world that she has developed in this home and her community, and all her activities, and with these other children.

The judge was satisfied that severing the bond between M.R. and her foster family would cause permanent and enduring harm, and we have been provided with no basis to second guess that sound conclusion. The application of these circumstances to the fourth prong of the statutory test fully supports the judge's conclusion that more harm would befall the child if termination was not ordered than would occur upon termination. A.W., supra, 103 N.J. at 610.

In short, we conclude that all the judge's findings were supported by credible evidence, and are thus deserving of our deference. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002); Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We are also satisfied that the evidence was of sufficient weight and substance to authorize the judge's conclusion that all the statutory prongs were clearly and convincingly demonstrated.

The judgment under review is affirmed.

The complaint also sought a termination of parental rights to another child, D.R., who was born on September 6, 1999. C.R., the mother of M.R., is also the natural mother of D.R.; D.R.'s natural father is D.B. C.R. surrendered her parental rights to both children during the pendency of this action. D.B. never attended the trial, although he was represented by counsel at that time. After hearing the evidence, the judge made findings and determined that it was appropriate to terminate D.B.'s parental rights to D.R. Since D.B. has not filed an appeal, the matter at hand involves only whether the trial judge correctly decided to terminate M.M.'s parental rights to M.R.

M.M. was arrested on September 6, 2006, at which time the Immigration and Naturalization Service initiated deportation proceedings because M.M. arrived in the United States in 1994 and had overstayed the six-month visa he received in 1994. He was in custody at the time the trial commenced on October 23, 2006, but was released upon posting a bond before the trial was completed.

In his testimony, M.M. attempted to deflect responsibility for this circumstance by asserting that "I would not be evicted if DYFS don't call FBI on me."

The judge expressed skepticism about M.M.'s claim to having a job available at the rate of $60,000 per year upon his release from jail. Indeed, the judge heard testimony that PETCO would only take M.M. back onto the payroll if he obtained valid working papers.

M.M. testified that he believed he had a good chance of becoming a lawful resident of the United States because he is married to a United States citizen and has seven children who were born here.

The minimal number of visits that have occurred are also troubling. The judge found there had only been eight or nine visits in the eighteen months preceding his oral decision of December 1, 2006.

(continued)

(continued)

16

A-2800-06T4

RECORD IMPOUNDED

October 25, 2007