DIVISION OF YOUTH AND FAMILY SERVICES v. V.M.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6500-05T46500-05T4

DOCKET NO. A-6504-05T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

B.C.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.C.,

a Minor.

________________________________

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

V.M.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE

GUARDIANSHIP OF M.C.,

a Minor.

___________________________________

 

Submitted February 14, 2007 - Decided

Before Judges Kestin and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-11-06.

Yvonne Smith Segars, Public Defender, attorney for appellant B.C. (Philip Lago, Designated Counsel, on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant V.M. (Janet A. Allegro, Designated Counsel, on the brief).

Stuart Rabner, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Victoria DeAlmeida, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for M.C., a minor (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In these consolidated appeals, both the mother, V.M., age 38, and the father, B.C., age 37, appeal from the Family Part judgment terminating their parental rights with respect to their child M.C., born on June 6, 2003. After a bench trial, a final judgment was entered on June 30, 2006, awarding custody, care, and guardianship of M.C. to the Division of Youth and Family Services (DYFS or Division) for the purpose of consenting to adoption. We affirm.

The family was living in Alabama at M.C.'s birth. Both V.M. and M.C. tested positive for marijuana and cocaine. After the Pike County (AL) Department of Human Resources was contacted, the family immediately relocated to Pennsylvania. Monroe County (PA) Children and Youth Services intervened and successfully interviewed the parents. At that time, V.M. tested positive for marijuana. Before additional services could be extended, however, the family again moved, this time to Asbury Park. The Division began efforts to locate the family in New Jersey on July 31, 2003. All proved unsuccessful, notwithstanding repeated attempts over several months.

On October 24, 2003, DYFS received a referral from the Jersey Shore University Medical Center in Neptune, advising that M.C. had been admitted due to dehydration and a possible stomach virus. V.M., who was using an alias, was arrested at the hospital after security learned she was a fugitive. When asked by hospital staff, B.C. did not represent he was an available caregiver for M.C. A hospital hold was placed on M.C.'s release and DYFS took custody.

The Division interviewed B.C. and discovered he had a criminal record, a substance abuse history (B.C. admitted marijuana use) and no stable housing. B.C. was referred for outpatient substance abuse treatment and M.C. was placed with a resource family.

On January 21, 2004, V.M. was temporarily reunited with M.C. while paroled to a twenty-eight-day residential substance abuse rehabilitation program at Sunset House. On April 30, 2004, V.M. was released from Sunset House due to disruptive behavior that included her continual contact with B.C. in violation of the program rules. The Division developed an agreed upon case plan with V.M. to allow M.C. to remain in her mother's care. DYFS inspected and approved V.M.'s proposed housing, and advised V.M. that until B.C. completes substance abuse treatment, he may only have supervised visitation with M.C.

Unfortunately, V.M. failed to comply with the designated case plan, B.C. did not participate in a substance abuse program, and V.M. had permitted B.C. to reside with her and the child. DYFS removed M.C. and placed her with a resource family on June 8, 2004. On June 14, 2004, the car driven by V.M. was stopped because of an inoperable taillight. V.M. was arrested, but later released, for driving while her privileges were suspended, and B.C. was arrested for possession of cocaine. B.C. was convicted and sentenced to three years in State prison. The Division was unable to effectuate visitation between B.C. and M.C. until his parole in November 2005. Services continued to be offered to V.M. while the Division worked to reunite her with M.C.

V.M. tested positive for cocaine on October 19 and 20, 2004. Her incarceration from November 1, 2004 to November 10, 2004, prevented M.C.'s return to her care. V.M. was again referred to counseling and substance abuse treatment programs, which she generally did not attend. V.M. tested positive for cocaine on March 3, 2005, and was again incarcerated for a violation of probation from May 6 to 13, 2005.

The Division filed its complaint for guardianship on July 6, 2005. At that time, B.C. had been released from South Woods State prison and paroled to Toler Hall, a half-way house in Newark, but additional infractions resulted in his incarceration at the Passaic County Jail. V.M. was incarcerated at the Keogh Dwyer Correctional Facility, Newton for a probation violation.

M.C., after a short initial placement, had remained in the home of the same resource family. When the litigation began, the foster parents had requested consideration for M.C.'s adoption.

A bench trial was held, commencing on June 20, 2006. Testimony was presented from Stephanie Vreeland, a case worker, and Jennifer Mischin, a case manager, employed by DYFS regarding the history of the Division's involvement with B.C. and V.M.; Frank J. Dyer, Ph.D., the Division's expert, who presented his opinion after having performed psychological evaluations of the parents and bonding evaluations between M.C., and her mother and foster mother; Paul J. Fulford, Ph.D., B.C.'s expert, who assessed the appropriateness of visitation between B.C. and M.C.; and B.C. and V.M., who testified on their own behalf.

The parents' personal circumstances had not significantly changed from those that existed at the commencement of the litigation: V.M. was awaiting extradition to PA on charges of forgery and false impersonation, her income resulted from disability payments and she had no housing; and B.C. was concluding his parole, which would end August 23, 2006, he asserted he was drug-free and enrolled in after-care treatment, his income resulted solely from Supplemental Security Income payments, and he had no housing. As to M.C., beginning on April 21, 2006, changes in the circumstances of the resource family required her placement with a new family, which also had expressed possible interest in pursuing her adoption.

The Family Part judge accorded great weight to Dr. Dyer's testimony on each parent's fitness to assume a caretaker role for M.C., concluding DYFS had established each of the four prongs of the statutory termination standard by clear and convincing evidence. Specifically, the judge found that the parents had no intention of resuming life as a committed couple and that neither presented the ability to assume the care and custody of M.C. Further, each parent's past problems with drugs and criminal incarcerations, coupled with the failure to adequately address the needs of the child through most of her life, resulted in the conclusion that both V.M. and B.C. posed a high risk of instability, substance abuse relapse, and continued harm to M.C. Accordingly, parental rights were terminated. The order dated June 30, 2006, provided for continued visitation between B.C. and M.C. pending appeal, and allowed V.M. to request visitation when she was released from incarceration.

On appeal, B.C. and V.M. challenge the trial court's findings on each prong of the statutory test, arguing that none of the prongs were established by clear and convincing evidence.

Additionally, V.M. raises challenges to evidential rulings made by the trial court.

Our review of a trial court's termination of parental rights determination is limited. See N. J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007); In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The factual findings of the trial court remain undisturbed if they are supported by "adequate, substantial and credible evidence" in the record, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), unless they "went so wide of the mark that a mistake must have been made," resulting in a denial of justice. See Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)).
Parents have a constitutionally protected, fundamental interest in raising their children without State interference. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394, 71 L. Ed. 2d 599, 606 (1982); see also Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1213, 31 L. Ed. 2d 551, 558-59 (1972). However, this right is not absolute. If a parent acts against the child's best interest, the State, as parens patriae, may take steps to protect the child from serious physical and emotional harm. It is the need to assure the health and safety of the child, which remains the State's paramount concern when balancing the competing factors to determine whether it is in the child's best interest to preserve the family unit or terminate the parental rights to allow an adoption. N.J.S.A. 30:4C-1(a).

The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(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).]

The State's burden, "to demonstrate by clear and convincing evidence" that the risk of "serious and lasting [future] harm to the child" is sufficiently great that it requires severance of parental ties, is a difficult one to sustain. See In re Guardianship of J.C., 129 N.J. 1, 10 (1992). An analysis of all evidence relating to the specific circumstances of each factor must be considered. In re Guardianship of K.H.O., 161 N.J. 337, 347-49 (1999). These requirements are not discrete; "[t]hey overlap to provide a composite picture of what may be necessary to advance the best interests of the [child]." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Our function, then, is to decide whether either parent has the capacity to eliminate any harm the child may already have suffered, and whether that parent can raise the child without inflicting any further harm. J.C., supra, 129 N.J. at 10. The focus of our inquiry is not only whether the parent is fit, but also whether he or she can become fit to assume the parental role within time to meet the child's needs. Ibid.
Attacking the evidence relied upon to prove the first two statutory prongs, B.C. asserts the Division "failed to present sufficient evidence of harm to [M.C.'s] health or development attributable to [B.C.]" and "that B.C. was "unwilling to eliminat[e] any potential harm." V.M. contends the child's positive toxicology at birth had no negative physical consequences and V.M. did not have "an out of control drug problem." Further, she maintains that her multiple incarcerations were for offenses that did not impact her parental abilities and the court improperly weighed the evidence that she was faced charges in Pennsylvania against which she had not yet had an opportunity to defend.

We disagree. Contrary to the parent's assertions, we find in the record evidence, including expert opinion, supporting the trial court's conclusions that neither B.C. nor V.M. was able to provide a permanent stable home for M.C. In its early involvement with these parents, the Division extended services and case plans for drug treatment which, if accepted and followed to conclusion, would have resulted in reunification of parents and child. Instead, B.C. was arrested, convicted and incarcerated for possession of cocaine for twenty months. V.M. continued to use cocaine, evidenced by urine screens which actually were or which were deemed to be positive on: October 19, 20, 2004, and on March 3, July 25, and September 15, 2005. V.M. also was incarcerated beginning June 9, 2006, because she did not address pending charges in Pennsylvania, after her release on May 27, 2006.

Arguments that the nature of the parents' criminal convictions was not serious and that their illegal drug use and dependence was not "out of control," belies the reality that this conduct, whatever its degree, prevented each party from providing parenting for M.C. throughout most of her life and prohibited the effectuation a viable plan for the care and return of the child. " A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). The trial court found that the delay in establishing a stable and permanent home caused and would continue to cause harm to M.C., who had been in placement for over two of her three years of life. Id. at 383.

We do not find the trial court misapplied its discretion when considering V.M.'s incarceration pending extradition for trial on the PA charges, which she vehemently denied. The evidence supported V.M.'s inability to provide for M.C. until her personal affairs were concluded. No adverse inference was drawn from the fact that she faced forgery and false impersonation charges, as she implies.

We additionally reject each parent's suggestion that DYFS failed to make reasonable efforts toward reunification. The Division's efforts for visitation and reintroduction of M.C. to V.M.'s home were disrupted by her periods of incarceration, failure to continue counseling, and prolonged drug use. B.C. was afforded visitation. However B.C.'s incarceration and residential instability, during which time his whereabouts were unknown, prohibited any consistent contact with his daughter. Services for drug rehabilitation and counseling extended to each parent were unsuccessful or unaccepted. Transportation was provided as necessary, but not always utilized. Any proposed familial caregiver contacts were investigated, but proved inadequate. Considering the individual circumstances faced by each of these parents throughout the course of the Division's involvement, we conclude the Division acted reasonably and appropriately to afford aid to mitigate the harms posed by V.M. and B.C. See N.J.S.A. 30:4C-15.1.

As to the fourth element of the best interests standard, DYFS must show that "termination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). While a harm will arise when severing of the ties with the biological parents, See Guardianship of D.M.H., supra, 161 N.J. at 384, the court balances that harm against the harm of the continued uncertainty posed by the delay in providing the child an association with a stable nurturing adult. See A.W., supra, 103 N.J. at 610-11.
The parents' challenges to the trial court's conclusions result from the fact that M.C.'s new pre-adoptive placement occurred on April 21, 2006, eliminating as an issue the breaking of a long-standing bond with the foster parents. Despite the short time that elapsed from the start of this placement to the entry of the judgment of guardianship, we determine that the substantial evidence in the record supports the court's conclusion to terminate parental rights.

Dr. Dyer provided the only testimony addressing this issue, as V.M. produced no expert and Dr. Fulford confined his opinion to the viability of supervised visitation between B.C. and M.C. Dr. Dyer concluded that V.M. was not capable of offering M.C. "the kind of stability, and protection, consistent nurturance, guidance structure, and positive role modeling that any child needs as a minimum condition for growing up to be a psychologically healthy adult." While M.C. displayed a very positive emotional connection to her birth mother during the bonding assessment, Dr. Dyer opined that M.C. would not suffer emotional loss if parental ties were severed. However, if M.C. were placed with her mother, Dr. Dyer stated V.M. would be unable to mitigate the harm resulting to M.C. from the loss of her relationship with the previous long-standing foster mother, as well as the loss of her newest placement.

Although he did not conduct a bonding evaluation between B.C. and M.C., Dr. Dyer concluded that, based on B.C.'s psychological assessment, which revealed a "personality disorder and other psychiatric problems," as well as B.C.'s past antisocial history, suggesting a high risk for criminal recidivism, B.C. is "incapable of providing consistent nurturance, structure, guidance, emotional security, and physical protection for a young child." Characterizing B.C. as "unfit," Dr. Dyer recommend that DYFS not consider B.C. as a viable candidate for custody of M.C.

Dr. Dyer stated that if M.C. were placed with either of her parents, the outcome would be "further disruption in the continuity of her care leading to increased vulnerability to . . . psychiatric problems and personality disorders in the future." Finally, the child's age militates a strong likelihood of adoption in the near future, making it in her best interests to be given the opportunity to have a permanent and stable home.

Finally, we have considered V.M.'s challenge, as error, to three evidentiary rulings made by the trial judge. After consideration of the arguments raised we do not find the trial court misapplied its discretion. See N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 471 (App. Div. 2003).

Our review of the record in light of the arguments advanced by the parties and prevailing standards of law determines that the judgment guardianship and termination of parental rights of V.M. and B.C. be affirmed. Id. at 450.

 
Affirmed.

(continued)

(continued)

15

A-6500-05T4

RECORD IMPOUNDED

March 28, 2007