NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.S.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3162-08T43162-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.S.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE GUARDIANSHIP

OF A.N.S., a minor.

_______________________________

 

Submitted November 4, 2009 - Decided

Before Judges Wefing, Grall and LeWinn.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Middlesex

County, No. FG-12-64-08.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jeffrey S. McClain, Designated

Counsel, on the brief).

Anne Milgram, Attorney General, attorney for

respondent (Lewis A. Scheindlin, Assistant

Attorney General, of counsel; Deirdre C. Fichter,

Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law

Guardian, attorney for minor A.N.S. (Olivia Belfatto

Crisp, Assistant Deputy Public Defender, of

counsel and on the brief).

PER CURIAM

K.S. appeals from a trial court judgment terminating her parental rights to her daughter A.N.S., now four years of age. After reviewing the record in light of the contentions advanced on appeal, we affirm.

A.N.S., born in November 2005, is defendant's seventh child. K.S. does not have the care or custody of any of her other six children. Her parental rights to three of these six children have been terminated, and they have been adopted; another child is in the custody of her father; and two are in the custody of their paternal grandmother. The father of A.N.S. is unknown.

At the time A.N.S. was born, K.S. was in a residential drug treatment program, Epiphany House, for her long-standing drug problem. When K.S. learned that she was pregnant with A.N.S., she was incarcerated at the Middlesex County Jail and was transferred to this residential program. The circumstances of this transfer are not entirely clear from the record before us. We note that neither K.S. nor A.N.S. tested positive for narcotics at the baby's birth. The New Jersey Division of Youth and Family Services ("DYFS") was contacted in light of K.S.'s past history, and a case worker responded to the hospital. Based upon K.S.'s expressed desire to overcome her past problems and willingness to continue in her treatment program, upon her discharge, she was permitted to return to the residential program with A.N.S. DYFS told her it would keep the case open.

Some six months later, in May 2006, DYFS was again contacted when K.S. did not pick up A.N.S. from daycare. Although K.S. told the DYFS worker who investigated the report that she had become lost while returning from Freehold, her counselor at Epiphany House told the DYFS worker that K.S. was being terminated from the program because of her failure to comply with the rules and leaving when she was not authorized to do so. K.S. then enrolled in an out-patient drug program in New Brunswick and, with A.N.S., resided with a close friend, C.M. In July, K.S. was arrested for possession of cocaine and marijuana.

DYFS then learned that K.S. had given custody of A.N.S. to C.M. C.M. said she was willing to care for A.N.S. but needed assistance. K.S. told the DYFS worker that she knew that she could not care for A.N.S. at that time and was willing to give temporary custody to C.M.

DYFS filed a complaint alleging abuse and neglect under Title 9 in October 2006. In connection with that action, DYFS arranged for Chester E. Sigafoos, Ph.D. to conduct a psychological evaluation of K.S. in January 2007. Following that evaluation, Dr. Sigafoos issued a comprehensive twenty-six- page report. During the evaluation, K.S. told Dr. Sigafoos that her mother was a drug addict, and she never knew her father. She lived with her grandparents for several years but ran away at the age of twelve because of the physical abuse she received. She did not go to school past the eighth grade. She started abusing drugs at the age of fourteen and engaged in prostitution to support her habit. She had been diagnosed with bipolar disorder. She was arrested six times as a juvenile and six times as an adult and had had several periods of incarceration.

Dr. Sigafoos administered a series of psychological tests. He reported that he found K.S. to be in the mildly retarded range of intellectual functioning and to have severe psychological problems. He concluded that she was "very disturbed," that her prognosis was "poor" and that she was unable to parent her children.

The following month, in February 2007, K.S. was again arrested. In March she entered guilty pleas to charges of possession of a controlled dangerous substance with intent to distribute and possession of a controlled dangerous substance with intent to distribute within one thousand feet of school property. She was sentenced to an aggregate term of seven years in prison. K.S. was in prison at the time of this trial and remains in prison to date. The earliest date at which she will be eligible for parole is not until August 2010.

In July 2007, physical custody of A.N.S. was transferred from C.M. to K.S.'s aunt T.S. This shift, which was satisfactory to K.S., was spurred in part by concerns that C.M.'s husband, who had just been released from prison, was living in the home.

There was conflicting evidence whether T.S. was meeting all of A.N.S.'s medical needs. A.N.S. had delays in her speech development, she had difficulty walking because her Achilles tendons were shortened and, although only two years old, was significantly obese. A.N.S. remained with T.S. until February 2008 when DYFS removed A.N.S. because T.S. suffered from depression and, having herself been arrested on drug charges, could not be approved for placement. A.N.S. was placed with a foster family, the G.s, where she has since remained.

Since living with the G.s, A.N.S. has lost a significant amount of weight and made progress with her speech. In addition, she received a series of casts on her feet to lengthen her tendons. By the time of trial, she was able wear normal shoes and walk more normally.

Despite K.S.'s incarceration, DYFS arranged for monthly visits between K.S. and A.N.S. A DYFS worker would transport A.N.S. to visit K.S. in prison. Both appeared happy to see each other, and A.N.S. would appear distressed at a visit's end. K.S. told the DYFS worker that she did not want to lose A.N.S., as she had lost her other children. She said her relationship with A.N.S. was different than her relationship with her other children because she had been able to take A.N.S. home from the hospital and care for her immediately after her birth.

In January 2008, shortly before A.N.S. was removed from the care of T.S., DYFS filed its complaint seeking to terminate K.S.'s parental rights. In preparation for the trial, DYFS arranged for Karen D. Wells, Psy.D., to conduct a psychological evaluation of K.S., as well as a bonding evaluation of K.S. and A.N.S. Dr. Wells diagnosed K.S. as suffering from bipolar disorder and antisocial personality disorder. She wrote in her report that K.S. had

highly variable and unpredictable moods, an embittered irritability, an untrusting and pessimistic outlook, and the feeling of being cheated, misunderstood and, at times, unappreciated. Unempathetic and intolerant, she exhibits a course [sic] incivility and a ruthless indifference to the welfare of others.

Dr. Wells explained this section of her report at trial:

And it specifically means that there is no consideration or concern for the welfare of others that dominates or takes priority over the individuals [sic] desire to meet their own needs. And so, the ruthless indifference means that essentially, I don't care how this impacts on you, because my need to have my own need met is my priority.

Her report also stated that there was "no clinical information to indicate that [K.S.] will be now, or in the foreseeable future, be able to resume care and responsibility for [A.N.S.] . . . ."

At trial, Dr. Wells testified to her examination and the conclusions she had reached. She said it would be, at the very least, two years from the time K.S. was released from custody before she would be able to care for A.N.S.

Dr. Wells also testified as to the bonding evaluation she performed. She said that K.S. was "patient," "affectionate," and "loving" with A.N.S. and that A.N.S. "seemed to like the attention and the time spent" with K.S. She said that A.N.S. related to K.S. as a parental figure but that she did not look to K.S. to meet her day-to-day needs. She said that while it would be very painful for K.S. to have the visits cease, A.N.S. would have no memory of K.S. in light of her young age. Asked if A.N.S. would suffer enduring or irreparable harm if K.S.'s parental rights were terminated, Dr. Wells said she would not. She expressed the further opinion that it was in A.N.S.'s best interests to terminate K.S.'s parental rights. She said that A.N.S. needed permanency and would be harmed by having to wait for K.S. to address her many psychological and emotional problems.

Dr. Wells also conducted a bonding evaluation of A.N.S. with her foster family. She said that A.N.S. referred to her foster mother as "mommy" and looked to her to meet her needs and to ensure that her surroundings were comfortable and safe. She noted how A.N.S. had grown and developed in their care and that they had given her love and stability. She said it would be traumatic for A.N.S. if she were to be removed from her foster family. Dr. Wells recognized that the foster family had certain questions about the adoptive process but felt confident that those issues could be addressed and that the foster family would adhere to its original plan to adopt A.N.S.

K.S. presented her own expert, Jonathan Mack, Psy.D. Dr. Mack evaluated K.S. and A.N.S. and administered a battery of tests. This testing showed indications of a personality disorder with "narcissistic and antisocial features and a drug addiction." According to Dr. Mack, some of the results indicated "that under the stress of a parenting role, in this point in time, [K.S.] may become irritable and perhaps unstable . . . -- in her parenting at the present time."

Dr. Mack said that his bonding evaluation showed that a bond had clearly been established between K.S. and A.N.S. He testified:

The child does respond and in a very positive manner and I did not see any evidence of inappropriate behavior on the part of [K.S.] during the bonding evaluation. And in fact, I would say she was proactive, appropriate, responsive, the things that you would expect to see, or want to see.

Dr. Mack differed from Dr. Wells on the question whether A.N.S. would retain a memory of K.S.; in his opinion, she would. Dr. Mack said that he observed a "relatively secure attachment" between K.S. and A.N.S. but declined to answer whether terminating K.S.'s parental rights would do more harm than good because he had not had the opportunity to conduct a bonding evaluation of A.N.S. with her foster family. He testified that K.S. would require intensive psychotherapy for at least a year to address her emotional and psychological deficiencies in terms of her parenting ability. Dr. Mack said that it was his

opinion that the nascent bond that [he] observed between the mother and the daughter was significant enough and strong enough that it sould [sic] not be severed lightly. And that if there is a way to continue and to promote that bond, it is [his] opinion it would be good to do so.

K.S. also testified. She said she was hoping for a permanent plan under which a family member would adopt A.N.S. or that kinship legal guardianship could be put in place. She presented the names of three possible caregivers: T.S. who had already been eliminated by DYFS, an uncle whose name she had never given to DYFS and with whom she had not discussed the question, and a close friend she believed to be an EMT. She did not know if her friend knew that K.S. had named her as a potential caregiver. Defendant denied that she had a drug addiction. She said rather that she was addicted to money, which she obtained by selling drugs.

At the conclusion of the trial, the trial court placed its oral decision on the record, giving its reasons for concluding that K.S.'s parental rights should be terminated. This appeal followed.

On appeal, K.S. raises the following arguments:

Point One A Parent's Right is of Fundamental Importance and the State Failed to Meet its Statutory Burden by Clear and Convincing Evidence.

A. Appellate Framework

B. A Parent's Right is of "Fundamental Importance" and of Constitutional Magnitude

C. New Jersey's Statutory Standard for Termination of Parental Rights

Point Two Application of Law to the Facts with Respect to K.S. Requires the Judgment to be Reversed and the Law Requires a Long Term Plan for Re-Unification of K.S. and A.N.S.

A. The Judgment Must be Reversed as DYFS Failed to Meet its Burden as to K.S. by Clear and Convincing Evidence

1. K.S. did not endanger the safety, health or development of A.N.S.

2. Defendant-Appellant K.S. is willing to change her circumstances

3. DYFS did not make "reasonable efforts" to help K.S. identify or correct the circumstances ultimately held against her and failed to adequately consider alternatives to the termination of parental rights

4. Termination of the parental rights of

K.S. will do more harm than good

B. A Long Term Plan for Re-Unification of

K.S. and A.N.S. is Required

A parent's right to raise his or her own children is fundamental, receiving protection under the United States Constitution. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972). The Due Process Clause of the Fourteenth Amendment requires that the State prove by clear and convincing evidence that a parent's right to raise his or her child should be terminated. Santosky v. Kramer, 455 U.S. 745, 747-48, 102 S. Ct. 1388, 1391, 71 L. Ed. 2d 599, 603 (1982).

In New Jersey termination of parental rights must be in the best interests of the child, with four statutory criteria met. N.J.S.A. 30:4C-15.1. DYFS must prove these criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986). The four prongs interrelate and overlap each other. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). DYFS must show by clear and convincing evidence that:

(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)(1)-(4).]

"A child is not chattel in which a parent has an untempered property right. The State has a parens patriae responsibility to protect children from the probability of serious physical, emotional or psychological harm resulting from the action or inaction of their parents." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). The focus is not solely on the rights of the parent, but must also include the needs of the child. Id. at 118. "Respect for parental rights also entails consideration of the rights of children." In re Adoption of Children by G.P.B., 161 N.J. 396, 403-04 (1999). The court should look to the best interests of the child, and the determination is extremely fact-sensitive. M.M., supra, 189 N.J. at 280. However, merely showing that the child will be better off with the foster family than with his or her natural parent(s) is not sufficient. G.P.B., supra, 161 N.J. at 404.

The essence of defendant's argument is that DYFS did not establish each of the requisite four prongs by clear and convincing evidence. We disagree.

She contends that DYFS failed to prove the first prong, harm to A.N.S.'s safety, health or development because she gave A.N.S. to C.M. when she recognized she could not care for her. This contention overlooks K.S.'s long-standing problems with addiction, as well as her inability into the foreseeable future to care for A.N.S. Such a delay poses a very real harm to A.N.S.

K.S. contends that DYFS failed to prove the second prong because she is willing to change the circumstances of her life. She points to her participation in various programs while in prison, her attempts to obtain her GED degree, the psychiatric treatment she is receiving and her compliance with her medication regimen.

K.S.'s efforts in this regard are laudable, and we would hope that she would continue to strive to address the issues which have hindered her in the past. The trial court's responsibility, and our responsibility, in turn, is not to reward K.S. for her efforts but to determine what, in our considered judgment is in the best interest of A.N.S. in accordance with the principles enunciated by the Legislature and the Supreme Court.

One aspect of the second prong is that a "delay of permanent placement will add to the harm." N.J.S.A. 30:4C-15.1(a)(2). Even K.S.'s expert recognized that she was unable to provide a stable, safe environment for A.N.S. and that it would require both significant effort and significant time before she could do so. A.N.S. should not have to endure that uncertainty and delay.

The first two prongs of this statute are related and inform each other. In re Guardianship of D.M.H., 161 N.J. 365, 378 (1999). We cannot wait until a child is irreparably harmed--a delay in fostering a stable home can constitute a harm in itself. Id. at 383.

K.S. also contends that DYFS failed to prove that it had made reasonable efforts to provide services for her prior to her incarceration. This overlooks the fact that at the time of the first contact between K.S. and DYFS after the birth of A.N.S., K.S. was in a residential drug treatment program, and receiving appropriate treatment there. After her termination from that program, she commenced out-patient treatment. It was only shortly after that that K.S. was arrested.

Finally, K.S. argues that DYFS failed to prove the fourth prong, that termination of her parental rights will not do more harm than good. The trial court accepted the testimony of Dr. Wells who testified on behalf of DYFS that it would be traumatic for A.N.S. if she were to be removed from her foster family and that in light of her young age she would have no memory of K.S. and thus suffer no harm from the termination. K.S.'s expert, Dr. Mack, did not express an opinion on the fourth prong, explaining that he did not have sufficient factual information to reach a determination. The record thus fully supports the trial court's finding with respect to the fourth prong.

We recognize that this determination will be a blow to K.S., who has repeated her desires to serve as A.N.S.'s mother. Our sympathies for her, and our hope that she continues to move forward with her life, cannot serve as basis for delaying permanency for A.N.S. and thus jeopardizing the progress she has made.

 
The judgment under review is affirmed.

(continued)

(continued)

16

A-3162-08T4

RECORD IMPOUNDED

December 22, 2009