NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.C

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1735-07T41735-07T4

A-2804-07T4

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

M.C.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP OF

D.L.C.,

Minor.

_____________________________________

NEW JERSEY DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

E.W.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP OF

D.L.C.,

Minor.

_____________________________________

 

Submitted September 23, 2008 - Decided

Before Judges Collester and Grall.

On appeal from Superior Court of New

Jersey, Chancery Division, Family Part,

Essex County, FG-07-135-07.

Yvonne Smith Segars, Public Defender,

attorney for appellants M.C. and E.W. (Carol Willner, Designated Counsel, on the brief in A-1735-07T4; Justin J. Walker, Designated Counsel, of counsel and on the brief in A-2804-07T4).

Anne Milgram, Attorney General, attorney

for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian for minor D.L.C. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).

PER CURIAM

M.C. and E.W. are the mother and father of D.L.C. Their separate appeals from orders terminating their respective parental rights were consolidated by this court. We affirm substantially for the reasons stated by Judge Hayden in a written opinion issued on October 31, 2007. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The only argument raised that warrants additional discussion is M.C.'s claim that DYFS's failure to address her special needs led to a termination of her parental rights impermissibly based on her disability.

The University of Medicine and Dentistry (UMDNJ) referred M.C. to DYFS before D.L.C. was born. M.C. was a patient of UMDNJ's prenatal clinic and had been diagnosed with schizo-affective disorder. D.L.C. was born within three weeks of the referral. DYFS did not locate M.C. and her family until her baby was nearly one-month old. M.C. and E.W. were living in a three-family home with D.L.C. and E.W.'s mother, brother and cousin. From its appearance, DYFS workers believed that the house had been abandoned. There were holes in the roof and walls, exposed wires and roaches on the floor, in the beds, and in the bag that held the baby's diapers and formula. D.L.C. was found on a roach-infested mattress on the floor. There were wire hangers in the baby's playpen. DYFS obtained authorization to remove D.L.C. and placed the baby with a foster parent, with whom she has lived ever since.

DYFS arranged for a psychological evaluation of M.C., which was performed by Dr. Dyer. M.C. reported a significant history of psychological and psychiatric problems. She acknowledged difficulty with anger that had led her to fight and destroy property in the past. She described her violent attacks on others that had led to her hospitalization for psychiatric treatment in the past pulling a knife on her aunt, assaulting her cousin, fighting with a fellow resident at her boarding home, and choking a teacher. M.C. also had received out-patient treatment. Before the birth of her child, she had twice enrolled in a program for psychiatric rehabilitation at EsseCare, Inc., where she had been diagnosed with Bipolar I disorder, Manic Type and prescribed medication. M.C. told Dr. Dyer that she was receiving daily care through a psychiatric program at Garden State where she was addressing her anger management problem and obtaining assistance in acquiring her G.E.D.

In Dr. Dyer's opinion, which was based on his clinical evaluation and testing, M.C. was mildly retarded and reading at a second grade level. She also had extremely severe psychological and behavioral problems that left her with poor impulse control, defective judgment and a great deal of poorly managed aggression. He concluded that she was far too disorganized psychologically to provide a child with the requisite degree of nurturance, affection, positive role modeling, stimulation, and physical protection. In his opinion, the prognosis for M.C. acquiring adequate capacity to parent was extremely poor. Dr. Dyer had no recommendations for treatment and did not identify any problems that M.C. could address with different programs or therapies.

DYFS also referred M.C. to Family Connections where she received therapeutic-supervised visitation, instruction to develop her parenting skills and peer support. With the assistance of Family Connections, DYFS arranged for M.C. and E.W. to spend time with D.L.C. together. When conflict between the parents made joint visitation and instruction impossible, Family Connections was compelled to and did provide separate programs for M.C. and E.W.

In January 2006, M.C. was enrolled but not actively participating in a program for anger management and depression therapy. By September 2006, M.C. was missing scheduled therapeutic visits at Family Connections and unable to address D.L.C.'s needs when she was with the child. On March 1, 2007, M.C. tested positive for marijuana. In May 2007, M.C.'s program at Family Connections was interrupted when she was hospitalized for a nervous breakdown.

Dr. Dyer reported on a second evaluation of M.C. in June 2007. He found her expression blunted and noted her difficulty in understanding simple questions. She was taking anti-psychotic and mood-stabilizing medication. Dr. Dyer observed M.C. and D.L.C. interact. He noted that although M.C. attempted to show affection, she also acted in an inappropriately confrontational and authoritarian manner with the child. D.L.C. was not focused on her mother, and Dr. Dyer saw no evidence of any bond or connection between them. In his opinion, M.C.'s cognitive deficits were severely compounded by her emotional problems. Referencing her recent marijuana use and hospitalization, he concluded that the stresses, frustrations and uncertainties associated with parenting a preschool child would further compromise M.C.'s psychiatric stability to the point that D.L.C. would be at risk of either neglect or physical harm in her care. Dr. Dyer was unaware of any course of counseling, medication or therapy that M.C. could receive which would afford him minimal confidence in her ability to safely and appropriately care for D.L.C.

By summer 2007, M.C. was attending a daily psychiatric program at UMDNJ. In August, a psychiatrist who evaluated M.C. on behalf of DYFS concluded that, despite evidence of M.C.'s improved "consistency in her treatment" at UMDNJ, her long-term prognosis for acquiring adequate capacity to parent remained poor. In his opinion, M.C. was suffering from a schizo-affective disorder and mild mental retardation, which are chronic conditions, and was likely to have difficulty caring for herself.

Dr. Albert Griffith provided expert testimony on M.C.'s behalf. In his opinion, M.C. would need a great deal of support in the community if D.L.C. were returned to her custody. He described his view of the prospects for reunification of mother and child as "guarded" but possible with assistance and support.

Expert opinion on D.L.C.'s prospects for thriving in the care of her foster mother was positive. In Dr. Dyer's opinion, D.L.C. was very responsive to and focused on her foster mother and appeared to be happy, secure, relaxed and emotionally responsive in her presence. He concluded that D.L.C.'s foster mother was appropriately addressing the child's needs and noted a bond between them. D.L.C.'s foster mother plans to adopt D.L.C.

The record does not support M.C.'s complaint that DYFS failed to provide services that would allow her to acquire the capacity to provide a safe and nurturing home for D.L.C. While there is no question that M.C. is mildly retarded and suffering from mental disorders, she was, by her own report, receiving assistance in obtaining her G.E.D. through a program she attended for her psychological disorders. In addition, she was enrolled in a variety of treatment programs throughout the course of this litigation. No expert recommended or suggested any educational or rehabilitative course or program that would assist M.C. in her effort to acquire the capacity to parent, and the experts agreed that she could not parent without supervision and support.

There is no foundation in the record for M.C.'s suggestion that other State agencies would have been able to help M.C. achieve parental competence had DYFS sought assistance on her behalf. This is not a case in which DYFS failed to "take into consideration the parent's abilities and mental condition" in determining the best way to redress the parental harm and reunify the family. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002); see In re Guardianship of J.C., 129 N.J. 1, 20-21 (1992) (noting DYFS's obligation to consider the parents' needs). When viewed in light of the treatment M.C. was receiving, DYFS's efforts were more than adequate. Cf. A.G., supra, 344 N.J. Super. at 438-41 (describing DYFS's effort to address problems similar to those of M.C. and finding the services provided adequate).

M.C. argues that rights and protections afforded to persons with disabilities under a variety of laws require DYFS to do more and preclude termination of her parental rights. This court has previously rejected similar claims for the sound reason that the focus of a termination case is not on the rights of the parent. Id. at 441-42. The central focus is protection of the child from the harm of a parent who lacks the capacity to provide the care and protection a child needs, regardless of the cause of that incapacity. Ibid. M.C.'s parental rights were not terminated because she is disabled but because, even with appropriate assistance, she was unable to address the conditions that render her incapable of parenting her child.

There are pending motions to suppress the brief and a portion of the appendix submitted on behalf of DYFS. We deny those motions.

Affirmed.

 

(continued)

(continued)

9

A-1735-07T4

RECORD IMPOUNDED

October 24, 2008