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

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3411-07T43411-07T4

A-3413-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Y.P.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.P., a minor.

_____________________________________

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

C.G.,

Defendant-Appellant.

_____________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF C.P., a minor.

______________________________________

 

Submitted October 7, 2008 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FG-09-186-07.

Yvonne Smith Segars, Public Defender, attorney for appellant Y.P. (Chanima K. Odoms, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant C.G. (Michael C. Wroblewski, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor (Jeffrey R. Jablonski, Designated Counsel, on the brief).

PER CURIAM

We consolidate these two cases in which defendants appeal from the trial court order of January 15, 2008, terminating their parental rights to C.P., a child born on May 20, 2005. We affirm substantially for the reasons set forth by the trial judge.

The mother, Y.P., age fifteen, was placed into the custody of the New Jersey Division of Youth and Family Services (DYFS) after she had been referred to DYFS by a hospital. At the time, Y.P. was seven months pregnant and living with C.G., the child's father, who was twenty-four years old.

C.G., the father of C.P., by his own admission, is in the country illegally. He works in construction. According to C.G., he had the permission of Y.P.'s mother to date her. He was twenty-four years old and Y.P. was fourteen when they began dating. At the time of the hearing, criminal charges were pending against C.G. arising out of his sexual relations with Y.P. due to her status as a minor. However, on February 6, 2008, after the trial court rendered its decision in this termination of parental rights case, a Hudson County grand jury declined to indict him for the charges.

Once the child was born, DYFS obtained legal custody of the newborn. Y.P. and her child were first placed with an aunt of Y.P., but within a month that arrangement had not worked out. Y.P. and the child were then placed in separate foster homes.

In February 2006, when the child was about eight months old and Y.P. was sixteen, Y.P. and her child were reunited, and placed together in the Union Industrial Home for Children. This facility provided a structured environment for Y.P. and her child and offered education, parenting classes, and other services to Y.P. Despite Y.P.'s hard work and some progress, this placement proved to be unsuccessful. The Union Industrial Home found that due to her mood fluctuations, volatility, and developmental deficits, Y.P. was unable to care for the child and that her "inability to understand [C.P.'s] emotional and physical needs would profoundly affect [C.P.'s] ability to function as a normal and productive child."

Numerous mental examinations of Y.P. indicate that she is immature with cognitive limitations that make her incapable of caring for the child without substantial assistance. Dr. Frank J. Dyer, the expert psychologist for DYFS, found her to be mildly mentally retarded and functionally illiterate.

On January 17, 2007, almost a year after being placed in the Industrial Home, Y.P. and the child, then about twenty months old, left the program. Y.P. was placed in a group home, which she left without permission. She was found on March 14, 2007, living with the family headed by J.J. and A.T., husband and wife. At the time of the trial, Y.P. was living with this family, working, going to school, and doing well. DYFS has continued to provide Y.P. with services. J.J and A.T. had initially declined to have C.P. placed in their home with Y.P. However, on June 20, 2007, shortly after the termination of parental rights case was commenced, they advised the court of their willingness to adopt C.P. At various points in the pretrial process, DYFS made efforts to locate family members to take in Y.P. and her child, but those efforts were unsuccessful.

After leaving the Union Industrial Home for Children, the child, C.P., was placed in one foster home, and then on February 6, 2007, he was moved to another foster home where he was residing at the time of trial. Those foster parents want to adopt him.

Throughout most of this time, C.G. did not offer to become the child's caretaker. The court order of November 9, 2005, expressly states that C.G. was "not offering himself as possible placement for his child." While a year later, in November 2006, he did offer to become the caretaker for the child, he apparently was unable to make the necessary arrangements to do so. At his evaluation with Dr. Dyer that same month, he indicated that his plan was to reunite with Y.P. and together they would raise the child. Dr. Dyer found him to be "a dependent, emotionally immature young man who appears to be perfectly comfortable with the idea of a sexual involvement between an adult in the early twenties and a 14 [fourteen] year old girl."

DYFS commenced this action to terminate the parental rights of both parents on June 14, 2007. By the time of the trial, the child was about two and one-half years old and had been in his foster placement for about ten months. Both biological parents had been visiting the child regularly as allowed. Both parents participated in parenting programs as required by DYFS.

Dr. Dyer, who had conducted psychological reevaluations of Y.P. and C.G., and bonding assessments of Y.P., C.G. and the foster parents with the child, testified at trial. He stated that Y.P. "was much too limited intellectually and was much too disorganized emotionally and unstable behaviorally to be entrusted with the care of a young child" nor did he believe that there was any "realistic prospect of bringing her to adequate parenting capacity." Regarding the father, he opined that C.G. "was too unstable emotionally, by virtue of his depression, and other psychological and character . . . problems . . . to be able to care independently for [C.P.]." In particular, he noted his concerns with the character of a person in his early twenties who would have sexual relations with a fourteen year old girl who was functioning at the mentally retarded level. He gave a pessimistic prognosis for C.G. achieving adequate parenting capacity. In light of C.G.'s depression, character defects and instability in his living arrangements due to his undocumented status, Dr. Dyer found no realistic likelihood that C.G. would be able to provide a safe and stable home for the child.

Dr. Dyer testified about the bonding evaluation he conducted of C.P. with his biological parents, Y.P. and C.G., and with his foster parents. He found that the child was developing in a reasonably healthy and normal manner. The child has a bond with both Y.P. and C.G., and he would experience a loss if those two relationships were severed. However, the loss would not be a traumatic loss that would result in "severe and enduring psychological harm" to the child. The child has also bonded with his foster parents, and if he were removed from that home, "to a reasonable degree of psychological certainty, there would be a very grave risk of severe and enduring harm." He expressed the opinion that this child would be less resilient if his care arrangements were disrupted now, due to the multiple disruptions he had in the past.

Defendant Y.P.'s expert, Dr. Gerard A. Figurelli, a psychologist, stated in his report that Y.P. is functioning within the borderline range of intelligence. He found that she would require "ongoing and closely supervised, individualized parenting education" and that she "possesses the capacity to act in a supportive parenting role."

J.J., the father in the family with whom Y.P. was living at the time of the trial, testified that he and his wife continue to want to adopt the child, C.P., although he had only met the child twice. J.J. acknowledged that initially, in March 2007, he and his wife did not want to take in C.P. J.J. explained at trial that he was not prepared to do so until June 2007, after he had attended foster parenting classes. He acknowledged that since June 20, 2007, when he and A.T. advised the court of their desire to adopt C.P., he had expressed this desire to adopt C.P. to DYFS workers a number of times.

In her testimony at trial, Y.P. explained her plans to take care of C.P. C.G. did not testify at trial, but he did make a statement to the court expressing his desire that the child be placed with Y.P. At that time, he had no plans or proposal to take care of the child himself.

The guardian for the child supported the termination of the parental rights of both parents.

The trial court issued a comprehensive written opinion dated January 15, 2008, and applying the four prong "best interests" test set forth in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591 (1986), as subsequently codified in N.J.S.A. 30:4C-15.1, and developed in subsequent case law, it terminated the parental rights of both Y.P. and C.G. This appeal followed.

C.G. raised the following issues on appeal:

POINT I

THERE DID NOT EXIST SUBSTANTIAL CREDIBLE EVIDENCE SUPPORTING THE COURT'S FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE.

A. There did not exist clear and convincing evidence to support the finding [that] the health and development of the child was and continued to be endangered by the parental relationship.

B. C.G. is willing or able to eliminate the harm facing the child.

C. There did not exist clear and convincing evidence that the Division made reasonable efforts to provide services to help C.G. correct the circumstances which led to his child's placement outside the home.

D. DYFS did not prevail on prong four of N.J.S.A. 30:4C-15.1(a) because it did not prove by clear and convincing evidence that termination of parental rights would not cause more harm than good.

POINT II

THE TRIAL COURT ERRED IN NOT GRANTING DEFENSE COUNSEL'S REQUEST FOR AN ADJOURNMENT SO COUNSEL COULD ARRANGE FOR A DEFENSE ARRANGED PSYCHOLOGICAL EVALUATION OF C.G.

Y.P. raises the following issues on appeal:

POINT I

THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE DEFENDANT.

A. The evidence adduced at trial did not support the court's finding that the State met prong one of N.J.S.A. 30:4C- 15.1(a) because DYFS failed to show a nexus between Y.P.'s low IQ and her ability to parent.

B. The evidence adduced at trial did not support the court's finding that the State met prong two of N.J.S.A. 30:4C- 15.1(a) because the psychological testimony is not supported by the reality of Y.P.'s addressing her educational, professional, and housing needs by the time of trial.

C. The evidence adduced at trial did not support the court's finding that the State met prong three of N.J.S.A. 30:4C-15.1(a) because the services DYFS provided were not intended to result in Y.P.'s reunification with C.P., and a plan for the family to remain together in the [A.T./J.J.] household was arbitrarily rejected.

D. The evidence adduced at trial did not support the court's finding that the State met prong four of N.J.S.A. 30:4C- 15.1(a) because DYFS failed to prove that termination of Y.P.'s parental rights would not do more harm than good.

Our review of a trial court's decision to terminate parental rights is limited, and we will not disturb the factual findings of the trial judge "unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Further, we accord deference to the factfinding by the family court, recognizing its special expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). After a careful review of the record and arguments by counsel, we are satisfied that the trial court's decision is well supported by the substantial, competent credible evidence, including the testimony and reports of Dr. Dyer. We add only the following comments regarding termination of C.G.'s parental rights.

At the time the trial court reached its decision, criminal charges were still pending against C.G. As a result, although expressly recognizing that C.G. was innocent until proven guilty, the trial court considered the possibility that he could be convicted of the charges and noted that a conviction would "impede his ability to provide a safe and stable home" for the child. We now know that C.G. was not indicted on the charges, so this concern is now moot. However, we must decide this appeal based on the record at the time of trial. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Further a reading of the trial court's decision as a whole, reveals that elimination of this factor would not materially change the judge's calculus. Significant other factors supported that decision. C.G.'s sexual relationship with Y.P. when she was fourteen years old and the fact that C.G. thought the relationship acceptable because her mother approved placed C.G.'s judgment into question. Further, C.G. had not offered himself as a caretaker for the child at the time of the hearing nor throughout most of the pretrial proceedings. Relying on Dr. Dyer's opinion in part, the trial judge found that C.G. was incapable of providing a safe and stable home for the child for a variety of reasons, including his clinical depression. In addition, the trial court found that separating the child from his foster parents would cause the child enduring and emotional harm. Thus, the findings of the trial court are supported by the competent evidence in the record.

We also reject C.G.'s argument that because he was not indicted for the criminal charges, there is no basis for Dr. Dyer's opinion that C.G.'s relationship with Y.P. was inappropriate, and that the trial court improperly relied on such opinion. The record is undisputed that twenty-four year old C.G. had a sexual relationship with Y.P. then fourteen, resulting in her pregnancy. Whether or not a grand jury chose to indict for that conduct, Dr. Dyer could certainly evaluate the appropriateness of that conduct from a psychological standpoint when evaluating C.G., and the trial court could consider that evaluation as well as C.G.'s judgment in engaging in such a sexual relationship when reaching its decision.

C.G. also contends that the trial court improperly considered the possibility of C.G.'s deportation. However, our review of the decision does not reveal that the trial court weighed C.G.'s immigration status against him, although the court did note that C.G. was concerned about his immigration status. Dr. Dyer noted that this concern contributed to C.G.'s depression.

The argument raised in Point II of C.G.'s brief concerning denial of an adjournment request is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

The doctor's October 10, 2007, report concerning this evaluation indicates that since C.G. spoke only Spanish and C.P. spoke only English, communication between the two was limited.

(continued)

(continued)

2

A-3411-07T4

RECORD IMPOUNDED

November 20, 2008