DIVISION OF YOUTH AND FAMILY SERVICES v. S.T and E.M

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1249-07T41249-07T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

vs.

S.T.,

Defendant-Appellant,

and

E.M.,

Defendant.

IN THE MATTER OF THE GUARDIANSHIP

OF J.M.M. and E.G.M., III,

Minors.

__________________________________

 

Submitted: October 2, 2008 - Decided:

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-125-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Anne Milgram, Attorney General of New Jersey, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lisa N. Brown, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minors J.M.M. and E.G.M., III, (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

S.T., the mother of J.M.M. and E.G.M., III, seeks review of an order terminating her parental rights. She contends that the Division of Youth and Family Services (DYFS) failed to carry its evidential burden to support this relief. We affirm.

On November 19, 2004, E.M., S.T. and their son, E.G.M., III, and S.T.'s daughter, D.M.R., moved into an apartment in Jersey City. Their second child, J.M.M., was born on December 19, 2004. On January 11, 2005, E.M. and a man he met in prison entered the apartment of E.M.'s landlord with the intention of committing a burglary. E.M. was armed with a 9mm handgun. E.M. and his colleague restrained the landlord, his wife and two daughters, searched the house for money, found the landlord's debit card, obtained the personal identification number for the card, and then killed each member of the family. E.M. and his accomplice left the apartment; E.M. walked upstairs to his apartment. The bodies were found several days later. E.M. was identified as complicit in the robbery and murders through his use of the landlord's debit card.

On March 2, 2005, E.M. was arrested. The arrest occurred early in the morning at the apartment shared by E.M. and S.T.; the entire family was present at the time of the arrest. S.T. was not arrested. There is no evidence that she knew of E.M.'s plan to rob the landlord or knew what he had done until he was arrested. E.M. is now in prison; he must serve sixty-three years, eight months and thirty days before he is eligible for parole.

S.T. was arrested on August 15, 2005. On that morning, police executed a search warrant of her apartment. A handgun and marijuana were found in the dryer in the apartment. S.T. was charged with weapons and drug offenses. Unable to post bail, S.T. remained incarcerated until January 31, 2006. At the time of her arrest, D.M.R. was ten years old, E.G.M., III, was four years old, and J.M.M. was eight months old. The children were placed in foster care because S.T. was unable to care for them and no family member had been identified to care for them. On September 2, 2005, D.M.R. was placed with a paternal aunt. Since October 26, 2005, E.G.M., III, and J.M.M. have resided in their current foster home.

Two days after her release on bail, S.T. was ordered to submit to a substance abuse evaluation and a psychological evaluation. The February 7, 2006 substance abuse evaluation, including a urine screen, was negative. No treatment recommendations were made. A psychological examination was conducted on February 15, 2006. Dr. Kenneth Schulman, a psychologist, reported that S.T. suffered from Major Depression and Generalized Anxiety Disorder, as well as Avoidant Personality Disorder with Negativistic Personality Traits. He recommended that she undergo psychotherapy as a prerequisite to obtaining her children. He explained that S.T. has "fewer resources than most" for coping with the demands of everyday living. She copes "by leading a restricted life and working hard to keep stressful experiences out of her life." Her desire to appear calm makes her susceptible to becoming upset when she must confront ordinary types of stress that occur in everyday life. This, in turn, may interfere with her ability to function effectively as a parent.

On March 28, 2006, S.T. was referred to the Easter Seals Parent Support Program and began receiving services on April 3, 2006. She applied for city welfare and obtained Medicaid coverage. She also participated in weekly parenting skills classes and met the program specialist once a week. By September 2006, however, S.T.'s progress had stalled because her welfare status and pending criminal charges prevented her from obtaining an apartment and a job.

When the children were first removed from S.T.'s care, DYFS interviewed and evaluated several relatives proposed by S.T. or who presented themselves as caregivers for the children. D.T., the maternal grandmother, was ruled out due to four convictions for weapons and drugs. At that time, she had completed a two-year term of imprisonment for weapons and drug offenses in September 2001. J.O., the paternal grandmother of D.M.R., was ruled out because her home was too small, and a son had been removed briefly from her care by DYFS. J.R., a maternal aunt, was ruled out because her home was too small. In December 2005, W.S., a friend of S.T., advised DYFS that she was interested in caring for the children. She was ruled out because she did not provide the required information about her roommates.

When first removed, E.G.M., III, and J.M.M. did not reside in the same home. They were reunited on October 26, 2005. E.G.M., III, expressed delight in the reunification and asked to sleep in the same room as his brother. The boys and their sister visited their parents at the courthouse on November 28, 2005. That same day, E.G.M., III's, foster mother reported that he was having nightmares about bloody monsters and feeling anxious. He was referred for counseling. During a home visit on December 16, his foster mother advised the DYFS worker that E.G.M., III, was still having nightmares and had difficulty going places by himself. His therapist reported that the child was receiving trauma specific play therapy to alleviate his symptoms of fearfulness. By March, E.G.M., III, was still having nightmares. He reported seeing "bloody people." He refused to go to the bathroom unaccompanied. On the other hand, he seemed to show evidence of adjusting well to his foster home. His therapist warned, however, that inconsistent family visits could interfere with his progress.

Supervised visitation between S.T. and the children occurred following her release from jail in January 2006. J.M.M. was indifferent to his mother; E.G.M., III, was happy to see his mother. The visits were very emotional for the family. Supervised visits continued until June 30, 2006. The judge suspended the visits because the visits were having a negative effect on the children. S.T. was sending instructions for the care of the children to the foster parents through E.G.M., III. For example, S.T. told E.G.M., III, to tell the foster parents that J.M.M. should be "cut." This comment was interpreted as a instruction to have J.M.M. circumcised.

S.T. continued to participate in parental counseling and therapy. However, these actions ceased following her September 28, 2006 guilty plea to second degree conspiracy and third degree possession of a prohibited weapon and her November 9, 2006 sentence to five years in prison. S.T. remained incarcerated until August 27, 2007. Thus, between August 15, 2005, the day of her initial arrest, and September 5, 2007, the third day of the parental rights trial, S.T. had been incarcerated fifteen and one-half months.

At trial, S.T. testified that she was living with an aunt. While incarcerated, she enrolled in GED classes, parenting skills classes, and a program for incarcerated mothers. She had found a job and was hoping to rent a three bedroom apartment. She admitted that she was unable to care for J.M.M. and E.G.M., III, at that time.

Dr. Schulman, who conducted the earlier psychological evaluation of S.T., testified about the bonding evaluation he conducted on October 26, 2006, just before S.T. commenced her custodial term. He related that in his initial evaluation he observed a great deal of interpersonal stress, anger and frustration. In his bonding evaluation, he observed positive communication between S.T. and E.G.M., III, but a "[m]uch more aloof" level of communication with twenty-two month old J.M.M. He concluded that J.M.M. had not bonded with his mother. Moreover, Dr. Schulman opined that S.T.'s anger, depression and anxiety were unresolved and interfered with her ability to parent.

By contrast, Dr. Schulman concluded that J.M.M. had bonded with his foster parents and that E.G.M., III, had developed a very positive attachment to them. He stated that continuation of the current placement with the foster parents offered the greatest degree of stability and structure for the boys.

Judge DeCastro filed a written opinion on September 18, 2007, in which she found that DYFS had established by clear and convincing evidence that the parental rights of S.T. should be terminated. The judge found that S.T.'s conduct harmed her children because her arrest and incarceration displaced the children and destroyed the stability of their home. Moreover, E.G.M., III's, therapist believes that the child's exposure to drugs and weapons in his home and the need for placement in a foster home is the source of his nightmares.

The judge also found that S.T.'s psychological profile and her bouts with depression and anxiety are consistent with persons who may abuse their children. Unless S.T. continues psychotherapy, reunification cannot begin. Moreover, her separation from the children, including fifteen months incarceration, allowed the children, particularly J.M.M., to form emotional bonds with their foster family. Her inability to care for the children from the time of her arrest, through the time of trial, and for the reasonably foreseeable period after the trial demonstrated that S.T. is unable to eliminate the harm to the children.

Judge DeCastro also found that DYFS made diligent efforts to provide services to help S.T. overcome the circumstances that led to the removal of the children and their continued out-of-home placement. The judge cited the referrals for parenting classes and counseling, as well as opportunities for supervised visitation. Furthermore, DYFS thoroughly investigated family members and friends identified by S.T. to care for the children to avoid termination of parental rights.

Judge DeCastro found that termination would not do more harm than good. In her analysis of this prong, the judge recognized that E.G.M., III, is emotionally attached to his mother, while J.M.M. has no emotional attachment with S.T. However, the judge also recognized the existence of a strong emotional bond between the boys that precludes consideration of separating the siblings. Finally, the judge found that "[s]evering the ties between the children and [S.T.] who [has] failed to provide them with the appropriate parenting for a significant amount of time will do substantially less harm in the long run." Accordingly, the judge ordered the termination of S.T.'s parental rights to E.G.M., III, and J.M.M.

It is well-established that parents have a constitutionally protected right to "make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49, 57 (2000). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982).

But the "constitutional imperative of preserving family integrity is not absolute." Moriarty v. Bradt, 177 N.J. 84, 102 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Indeed, it is equally well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, Santosky, supra, 455 U.S. at 747-48, 102 S. Ct. at 1391-92, 71 L. Ed. 2d at 603, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986).

Pursuant to N.J.S.A. 30:4C-15.1a, DYFS can initiate a petition to terminate parental rights on the grounds that the best interests of the children require this course if each of the following elements is proven by clear and convincing evidence:

(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 or 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) [DYFS] 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(1)-(4).]

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). "The four criteria enumerated in the best interests standard 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., 161 N.J. 337, 348 (1999).

"Appellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered binding on appeal when supported by adequate, substantial, and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, we should not disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Having thoroughly reviewed the testimonial and documentary record, we are satisfied that DYFS established by clear and convincing evidence that S.T. caused harm to her children, that she has been unwilling or unable to alleviate that harm, that the agency made diligent efforts to reunify the family and to identify placements that would have avoided termination of parental rights, and that termination of S.T.'s parental rights will not do more harm than good.

Moreover, the findings of fact made by the trial judge are well-supported by the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). The judge also properly applied the governing law to the facts. There is, therefore, no basis for this court to disturb the termination order. To be sure, there is no evidence that S.T. was aware of E.M.'s horrific actions before his arrest or that the children actually observed the physical evidence of his crimes. There is evidence, however, that E.G.M., III, learned of some of the circumstances of his father's arrest and that affected him deeply. His removal from his mother's care at this critical time, occasioned by her criminal conduct, seems to have exacerbated the harm.

Accordingly, we affirm the September 24, 2007 order substantially for the reasons expressed by Judge DeCastro in her September 18, 2007 opinion.

 
Affirmed.

S.T. is also the mother of D.M.R., who is not the subject of this litigation.

E.M. is not D.M.R.'s father.

(continued)

(continued)

13

A-1249-07T4

RECORD IMPOUNDED

October 21, 2008