DIVISION OF YOUTH AND FAMILY SERVICES v. E.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1779-08T41779-08T4

DIVISION OF YOUTH AND FAMILY

SERVICES,

Plaintiff-Respondent,

v.

E.C.,

Defendant-Appellant.

____________________________

IN THE MATTER OF THE

GUARDIANSHIP OF C.C.,

a minor.

____________________________

 

Submitted August 12, 2009 - Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-77-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, of counsel and on the brief).

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

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minor C.C. (Caryn M. Stalter, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant E.C. is the birth father of C.C., born January 23, 2002; he appeals from the October 20, 2008 order of the Family Part terminating his parental rights to the child and awarding guardianship to the Division of Youth and Family Services (DYFS). For the reasons that follow, we affirm

The pertinent factual background may be summarized as follows. C.C.'s birth mother, K.C., died of breast cancer in April 2006. E.C. is also the natural father of F.C., a teenage boy who is not a subject of these proceedings.

E.C. and K.C. first became involved with DYFS in 2001. In March of that year, DYFS received a referral that the parents maintained a "filthy" residence and used cocaine and other drugs; E.C. refused to submit to a drug screen at that time. In July 2003, DYFS responded to a referral alleging domestic violence between E.C. and K.C., and received additional information about both parties' drug abuse. E.C. signed an in-home case plan to comply with a substance abuse evaluation on July 29, 2003, and DYFS closed its case in November 2003.

The triggering event that led to the removal of C.C. from E.C.'s custody occurred on October 15, 2006. On that date, E.C. drove his car while under the influence of an overdose of prescription pain medication, and hit two parked cars and a pedestrian in a parking lot; C.C. was a passenger in E.C.'s car at the time. DYFS received a referral from the police and, after E.C. was arrested, DYFS placed C.C. with her paternal uncle.

Police officers evaluated E.C., who admitted to having taken three times the prescribed dosage of his pain medication that day. An officer determined that E.C. was under the influence of a narcotic analgesic and was unable to operate a motor vehicle safely; E.C. was transferred to Bergen Regional Medical Canter (BRMC) for treatment.

C.C. went through several placements and, on December 1, 2006, was placed with A.R., a family friend of E.C.'s who had known C.C. since toddlerhood, had babysat for her and whose teenage son was a friend of F.C. C.C. has been in A.R.'s custody since that date.

The record documents E.C.'s chronic involvement with drugs and alcohol. DYFS made numerous referrals to treatment programs, some of which E.C. attended but most of which he either attended sporadically or refused to attend, claiming that his work schedule prevented him from attending. E.C.'s mother, R.B., informed DYFS that E.C. had started experimenting with drugs when he was thirteen years old.

In a December 2006 substance abuse evaluation, E.C. acknowledged that he had abused alcohol and painkillers; he also stated that he was unemployed and that his main source of income was survivor benefits and food stamps. The evaluator, Stephen Thomas, recommended that E.C. continue the therapy he had started at Vantage Health Systems and referred him for a more extensive substance abuse evaluation.

At a January 4, 2007 court hearing, E.C. submitted to a urine screen and tested positive for cocaine. On January 18, 2007, at Thomas' recommendation, E.C. entered an outpatient program for treatment of cocaine dependence at St. Mary's Hospital.

Dr. Michael J. Fiore, Ph.D., of the Center for Evaluation and Counseling (CEC) conducted a psychological evaluation of E.C. on April 16, 2007. Based upon his interview with E.C., as well as the psychological tests he administered, Dr. Fiore opined that E.C. "tend[ed] to be an immature, self-dramatizing, and attention-seeking adult with dependent and narcissistic personality traits." The doctor also opined that E.C. is "emotionally needy and focused on meeting his needs at the expense of his responsibilities and the needs of others."

Dr. Fiore further noted that E.C. "has a history of drug addiction. . . . [H]e exhibits a highly addictive, dysfunctional pattern. . . . Given his tendencies to be reactive to the stress engendered by responsibilities, [E.C.] is at risk for relapse."

Dr. Fiore concluded that E.C. "is not yet sufficiently stable to assume full time parenting responsibilities for, or extended unsupervised visitation with[,] [C.C.]. [He] is in need of continued recovery services, as well as psychotherapy with an emphasis on managing stressors and emotions without utilizing chemicals." The doctor recommended that E.C. have "brief (two hours per week) unsupervised visits" with C.C., and gradually increase his visitation as he made "therapeutic progress . . . ." Any increase would be "contingent on [E.C.]'s continued abstinence and psychotherapeutic progress." Dr. Fiore recommended that reunification "should not occur at the expense of the loss of another mother figure in [C.C.'s] life. Ongoing and frequent contact with her current foster mother [wa]s strongly recommended."

E.C. engaged in therapy and some substance abuse counseling; his parenting time with C.C. was increased accordingly. However, on June 27, 2007, E.C. tested positive for cocaine; his unsupervised visits with C.C. were suspended, and future visits were held at DYFS' office.

Thomas evaluated E.C. on July 23, 2007, and referred him to BRMC's intensive outpatient program. On September 12, 2007, the program director advised DYFS caseworker Raquel Rodgers that E.C. stated he "could not commit" to the schedule of three to four meetings per week required by the program. Rodgers thereupon referred E.C. to the Addiction Recovery Program (ARP). However, E.C. informed Thomas that he could only attend ARP one night a week; Thomas stated that it would be "unrealistic to recommend that he undergo treatment for one night a week." E.C. became upset, claimed that his positive urine screen was not indicative of drug use and stormed out of the meeting with Thomas.

Thereafter, DYFS referred E.C. to the Adult Partial Care Program with Options Counseling Center (Options), for group and individual counseling, psychiatric services, drug and alcohol screening, life skills, behavior modification and anger management classes. E.C.'s counselor at Options, Amelia Khalil, informed DYFS caseworker Rodgers that E.C. minimized his substance abuse and denied testing positive for cocaine in June.

At a compliance review hearing on September 25, 2007, the judge ordered E.C. to attend substance abuse treatment, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings, and individual therapy with Care Plus. E.C. attended four sessions at Care Plus between September and October 5, 2007; he stopped attending because he lost his Medicaid eligibility and was unable to pay for therapy.

E.C. remained in the Options program until November 23, 2007, when he was discharged for non-compliance. His counselor, Khalil, reported that E.C. still had "difficulty controlling his compulsive behavior." Following his departure from Options, E.C. did not participate in any further counseling or substance abuse programs. A newly-assigned DYFS caseworker, Lori Laverty, visited E.C.'s home and left him messages to contact her; he did not respond until December 20, 2007.

Laverty referred E.C. to BRMC's charity care program, in order to connect him with a treatment program. E.C. informed Laverty that he could not commit to the BRMC program because of his work schedule; E.C. refused to consider attending the program at night. During this period, E.C. continued to have visitation with C.C. at DYFS' office; DYFS provided transportation for those visits.

Dr. Fiore conducted another psychological evaluation of E.C. on February 11, 2008. E.C. admitted that he continued to drink and that he concealed his drinking from his AA sponsor. Dr. Fiore concluded that E.C. was in denial about his addictive tendencies and that he was "ambivalent" about caring for C.C.

According to Dr. Fiore, E.C.'s "clinical profiles . . . indicated that he continues to be immature, narcissistic, emotionally needy, impulsive, and rebellious[,] . . . [and] presents a risk for continued unreliable and irresponsible behaviors."

Dr. Fiore concluded that E.C.

has not made sufficient progress to resume parenting responsibilities. He admitted to active alcohol abuse and has not learned from his participation in recovery services that he is an addict and that he needs to abstain from using substances. . . . [He] is ambivalent about having his daughter returned to his care and is sabotaging reunification via self-defeating behaviors such as drinking to intoxication on the eve of this assessment. [E.C.] continues to be destabilized by rebellious tendencies, narcissistic self-indulgence, a tendency to use substances to avoid feeling his emotions, and an avoidance of parenting stress. [E.C.] is not involved in any services at this time. He is in need of continued recovery services with urine monitoring and psychotherapy. Given the length of time [C.C.] has been in placement, and [E.C.]'s ambivalence about reunification, it is recommended that DYFS pursue a permanent plan for her. Given [E.C.]'s presentation during this assessment, and his apparent lack of genuine progress from past recovery and psychotherapeutic services, [E.C.] is not likely to make sufficient progress to resume parenting responsibilities in the foreseeable future.

On May 2, 2008, Heather Diamond, a licensed clinical social worker under Dr. Fiore's supervision at the CEC, conducted bonding evaluations with E.C., C.C. and A.R., the foster mother. Diamond observed that C.C. appeared "comfortable and relaxed" with A.R., and called her "Aunt Annie" or "mommy." By contrast with E.C., the child resisted attempts to become engaged in play and did not appear as relaxed and comfortable as she had with the foster mother.

Diamond concluded that A.R. was "an appropriate, affectionate and committed caretaker," and that C.C. appeared to have a "secure attachment" to her. Diamond recommended that C.C. remain in A.R.'s care, but continue to have visitation with E.C.

On June 30, 2008, however, A.R. notified DYFS caseworker Laverty that she could no longer supervise visits between C.C. and E.C. because E.C. became angry with A.R. when she stated that she wished to adopt C.C. and declined to consider kinship legal guardianship, which E.C. had proposed.

At the guardianship trial, Dr. Fiore testified as to his two evaluations of E.C. and opined that E.C. was not presently stable enough to parent C.C.; nor had E.C. made enough progress between the evaluations to begin unsupervised visitation. Dr. Fiore strongly recommended that E.C. resume psychotherapy because of his addictive and narcissistic tendencies, as well as his immaturity, poor judgment and deficient parenting skills. Dr. Fiore testified that his professional opinion would remain the same even if E.C. successfully completed a substance abuse program, because of E.C.'s pattern of relapsing into substance abuse and his failure to address the reasons for such relapses.

Dr. Fiore described C.C. as a "vulnerable" child who exhibited signs of insecurity and separation anxiety. The doctor opined that C.C. had bonded with A.R. and would suffer psychological harm if removed from her care.

Diamond opined that C.C. is more securely bonded to and more comfortable with A.R. than with E.C.; she testified that the child looked to A.R., and not to E.C., to satisfy her emotional and physical needs. She described C.C.'s relationship with E.C. as: "[H]e's kind of like the relative that you see and you have a lot of fun with and it's a great time[,] but it's not necessarily the person you look to count on to meet your needs." Diamond further testified that A.R. expressed a willingness to continue C.C.'s relationship with E.C.; however, A.R. had some reservations about that "because of a time when she was supervising their visits and there were some boundary issues." C.C. expressed to Diamond her desire to live with A.R. Diamond opined that, if C.C. were separated from A.R., the child "would have trouble . . . attaching securely to someone again . . . . It's related to a lot of [future] personality disorders . . . in life because what you're learning is that there's no one around to meet [your] needs."

A.R. testified that C.C. has constant contact with F.C., her half-brother, who lives nearby, and regular phone and email contact with her grandparents who live in Florida. A.R. is very willing to adopt C.C., and the child has expressed the wish to be adopted by her.

The various DYFS caseworkers assigned to E.C.'s case during the litigation testified and described the substance abuse therapy and other services DYFS had provided to him. Originally, DYFS' plan was reunification. However, the plan changed to termination and adoption by A.R. because of DYFS' concern about E.C.'s ongoing substance abuse.

E.C. testified and admitted to a history of illicit and prescription drug abuse. He acknowledged that, despite attending therapy and NA/AA meetings and completing a substance abuse program, he continued to use drugs, namely cocaine, as recently as June 2007. E.C. disputed DYFS' evidence of his non-compliance with programs such as Vantage and BRMC; however, he provided no documentation of his claims that: (1) the BRMC program counselor excused him from the program because he "felt that at that time the requirements . . . would be far too much for [him] to be able to deal with . . . ."; and (2) he attended Vantage therapy sessions on more occasions between June and August 2007 than DYFS reported.

The trial judge rendered a written decision on October 20, 2008. After reviewing the evidence, the judge noted that E.C. "offered no expert testimony to challenge or refute Dr. Fiore's expert opinions concerning his inability to overcome his addiction to drugs and use of alcohol." The judge found

Dr. Fiore's findings and professional opinions credible[,] based upon [E.C.]'s long, uncontested history of drug use, treatment, and failure to overcome [h]is addiction. By his own admission[,] he neglected [C.C.]'s mental health needs while using drugs, . . . he placed her at great risk when he drove with her in the car while under the influence of drugs, and . . . he neglected her needs while using drugs. The evidence is clear and convincing that [E.C.] neglected [C.C.][,] placing her at great risk[,] and that she would be at great risk of harm should she be returned to his custody.

The evidence is clear and convincing that [DYFS] provided services to [E.C.] to help him overcome the causes of his neglect of [C.C.] and provided foster care for her when he was unable to do so properly.

. . . .

[C.C.] wishes to remain with her foster parents and be adopted by them. Although she wishes to have a continuing relationship with her father, she displays no separation distress when her father leaves after visiting with her.

The foster mother testified at trial and the court was impressed by her empathy and understanding of [C.C.]'s emotional needs arising from [the] loss cause[d] by the death of [her] mother and the loss . . . caused by her father's inability to provide proper parental care of her. The court also finds that the foster mother's actions providing for [C.C.]'s needs and giving her the "permanency" she requires bode[] well for her future. The court finds the foster mother can be relied upon to do whatever may be required to fulfill [C.C.]'s best interests.

The evidence is clear and convincing that [C.C.]'s best interests will be served by the termination of her father's parental rights to free her for adoption by her foster parents[,] and that termination of her father's parental rights will not do more harm than good[,] as she wishes to remain with her foster parents.

The judge thereupon entered a judgment awarding guardianship of C.C. to DYFS, terminating E.C.'s parental rights and authorizing C.C.'s placement for adoption.

On appeal, E.C. presents the following argument for our consideration:

ANALYZING THE EVIDENCE THE DIVISION OF YOUTH AND FAMILY SERVICES PRESENTED AT THE GUARDIANSHIP TRIAL WITHIN THE CONTEXT OF THE FOUR[-]PART STATUTORY CRITERIA OF N.J.S.A. 30:4C-15.1(a), IT IS APPARENT [THAT] THE TRIAL COURT ERRED IN DETERMINING THE DIVISION MET ITS BURDEN BY CLEAR AND CONVINCING EVIDENCE AND THAT E[.]C[.]'S PARENTAL RIGHTS SHOULD BE TERMINATED.

We have thoroughly reviewed the record in light of this contention and the applicable law, and we conclude that E.C.'s argument is entirely without merit. We therefore affirm the order terminating E.C.'s parental rights to C.C. substantially for the reasons stated by Judge Birger M. Sween in his written decision of October 20, 2008. R. 2:11-3(e)(1)(A) and (E). We add only the following comments.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is "tempered," however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, DYFS is authorized to petition the court for an order terminating parental rights in the "best interests of the child." N.J.S.A. 30:4C-15.1(a). The petition may be granted if the following criteria are established 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 of permanent placement will add to the harm. Such harm may include evidence that separating the child from h[er] 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-15.1(a)(1)-(4).]

"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." K.H.O., supra, 161 N.J. at 348.

The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

The trial court's findings of fact "'should not be disturbed 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)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

Applying these standards here, we are satisfied that the trial judge properly found that E.C.'s parental rights should be terminated, and that C.C. should be freed for adoption by A.R. On the first statutory prong, the judge found that C.C.'s "safety [and] health" were "endangered by the parental relationship[,]" N.J.S.A. 30:4C-15.1(a)(1), on October 15, 2006, when E.C. erratically drove his car under the influence of an overdose of pain medication with C.C. as a passenger, resulting in a collision with two vehicles and a pedestrian.

Regarding the second prong, the judge found that, given E.C.'s chronic pattern of relapse into substance and alcohol abuse, and his failure to complete successfully the various counseling and therapy programs to which DYFS had referred him, E.C. "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). Regarding the third prong, the judge found that DYFS had made "reasonable efforts to provide services to help" E.C. address his chronic substance abuse problems, "which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1(a)(3). The record contained no evidence of any "alternatives to termination of parental rights" for the judge to consider. Ibid.

Finally, in light of (1) E.C.'s chronic history of alcohol and substance abuse, (2) the uncontradicted expert evidence as to E.C.'s inability to parent C.C. now or in the foreseeable future, (3) C.C.'s attachment to her foster parents and (4) the child's need for permanency and stability, the judge properly found under the fourth statutory prong that the termination of E.C.'s parental rights would "not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4).

E.C. argues that "relapse is part of the road to recovery for an addict." He further contends that he "has shown that he is willing and able to do what is necessary to regain custody of [C.C.]," and that he "has eliminated the actual risk and potential risk of harm to [C.C.]." We are satisfied that these contentions are not supported by the record. E.C.'s relapses continued throughout the court proceedings; he was last in treatment in November 2007. He presented no evidence that he has "eliminated" his substance abuse problem which poses "the actual . . . and potential risk of harm" to C.C.

E.C. concedes that DYFS "offered [him] services such as visitation, psychological examinations and bus passes[.]" He contends, however, that "for the most part, [he] took the initiative to enroll in services on his own." While E.C. may have voluntarily enrolled in the BRMC program and in grief counseling, the fact remains that he has failed to benefit from the numerous services made available to him during the period from October 2006 through the course of the litigation; nor did he rebut Dr. Fiore's expert opinion as to his inability to parent C.C.

Finally, with respect to the fourth prong, E.C. asserts that he and C.C. had enjoyable visits together, the most recent visit having occurred on February 14, 2008. For the past two years, these visits were supervised by DYFS, since E.C. forfeited his right to unsupervised visits when he relapsed into cocaine use in June 2007. While C.C. may have demonstrated affection for E.C., the uncontradicted expert evidence of record established that it is A.R. who consistently meets the child's physical and emotional needs, while E.C. plays the role of someone to "have a lot of fun with . . .[,] but . . . not necessarily the person you look to count on to meet your needs[,]" as Diamond testified.

In sum, we are satisfied that the record supports the trial judge's findings that DYFS established the four statutory prongs in N.J.S.A. 30:4C-15.1(a)(1)-(4) by clear and convincing evidence.

Affirmed.

 

(continued)

(continued)

19

A-1779-08T4

RECORD IMPOUNDED

August 26, 2009