NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.M.K., a/k/a C.M.P.K and J.H., a/k/a J.H.H father of A.J.), and UNKNOWN FATHER OF Z.T.S.J IN THE MATTER OF THE GUARDIANSHIP OF A.R.M.M. a/k/a A.R.M.J. a/k/a A.R.M.P.K. and Z.T.S.J. a/k/a Z.T.S.P.K.,

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3453-08T43453-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

C.M.K., a/k/a

C.M.P.K.,

Defendant-Appellant,

and

J.H., a/k/a J.H.H.

(father of A.J.), and

UNKNOWN FATHER OF Z.T.S.J.,

Defendants.

_______________

IN THE MATTER OF THE

GUARDIANSHIP OF

A.R.M.M. a/k/a A.R.M.J. a/k/a

A.R.M.P.K. and Z.T.S.J. a/k/a

Z.T.S.P.K., Minors.

__________________________________

 

Submitted: October 15, 2009 - Decided:

Before: Judges Cuff, Payne, and Waugh.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Essex County, Docket No. FG-07-69-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Salois, Designated Counsel, on the briefs).

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 the minors (Damen J. Thiel, Designated Counsel, on the brief).

PER CURIAM

This is a termination of parental rights case. We review an order terminating the parental rights of C.M.K. also known as C.M.P.K. (C.P.K.) to her two children, A.R.M.M. also known as A.R.M.J. and A.R.M.P.K. (A.J.) and Z.T.S.J. also known as Z.T.S.P.K. (Z.J.). We affirm.

The Division of Youth and Family Services (DYFS) first became involved with C.P.K. on the occasion of the birth of her first son, A.J., on March 9, 2005. C.P.K. was nineteen years old. A nurse notified the agency the next day that C.P.K. had been arrested the previous day for possession of marijuana and was being held pending results of a drug screen. She was released with her son two days later when the screen was negative for drugs.

DYFS continued to monitor C.P.K. On March 16, 2005, a DYFS caseworker visited the home to perform a home assessment. She discovered a bucket of urine in the home. C.P.K. informed the caseworker that she used it for convenience to avoid multiple trips upstairs to the toilet. During another visit in May 2005, a caseworker had to knock several times before C.P.K. answered the door. The caseworker observed that C.P.K. had been asleep on the couch. C.P.K. insisted on returning to the couch to lie down as she answered questions posed by the caseworker. A.J., now two months old, was observed asleep in a bassinet littered with a coat, a snow suit, a plastic fork, candy wrappers and other debris. In addition, the apartment lacked hot water, a refrigerator, and adequate formula and diapers for the infant.

Following these observations, DYFS provided C.P.K. with regular home health services. Between May 18 and June 18, 2005, C.P.K. was not home during some of the scheduled visits, and she had not acquired either a crib for her son or a refrigerator. On the other hand, the service provider noted that the apartment seemed safe. The provider also observed that C.P.K. understood the nurturing and social needs of her infant son but did not seem to appreciate the need for continuity and routine.

In June 2005, C.P.K. submitted to a psychological examination and substance abuse assessment; she also enrolled in a parenting skills class. Although the substance abuse assessment was negative and the psychologist opined that in spite of her mental retardation, C.P.K. could provide adequate care to her child if she followed the recommendations of DYFS, a nurse from the Covenant House parenting program expressed concern about C.P.K.'s ability to care for her son. In particular, C.P.K. lacked interest in infant bonding, allowed others to hold the child while she socialized, and improperly picked up the child by his arm. In addition, the child's pediatrician expressed concern about the child's development and poor weight gain.

DYFS filed an action for care and supervision of A.J. on June 30, 2005. The judge amended the complaint to care, supervision and custody, and ordered A.J. removed from the care of his mother. On July 13, 2005, the judge found C.P.K.'s residence was dirty and unsuitable, and she failed to change the infant's diaper regularly and cooperate with service providers. He ordered her to continue services, including anger management and parenting skills. A.J. was placed with a foster parent.

During this placement, A.J. did well, although an evaluator noticed delays in fine motor skills and attributed those delays to neglect and lack of stimulation by C.P.K. while the child was in her care. On November 3, 2005, A.J. returned to C.P.K.'s care because she had obtained stable housing and complied with services. Home health services were reinstated, and C.P.K. received training in personal hygiene, diaper changing, maternal bonding, age appropriate activities for her son, and home management chores.

A.J.'s reunion with his mother was short-lived. He was removed from his mother's care on January 26, 2006, following her eviction for nonpayment of rent, noncompliance with mandatory counseling services, and residence with a boyfriend and other adults about whom DYFS knew nothing. During this removal, C.P.K. received individual counseling and anger management counseling. On September 30, 2006, C.P.K. gave birth to a second son, Z.J. He was released to her care. A.J. returned to her home on November 3, 2006. A home health services review found the family unit, which included C.P.K., her boyfriend, A.J., and her newborn son, functioning in a positive manner. A DYFS caseworker reported that as of December 11, 2006, there were "appropriate sleeping arrangements, clothing, food, utilities within the home."

This positive progression was temporary. On December 12, 2006, A.J. was left in the care of her boyfriend while C.P.K. and Z.J. went to New York City for the day. C.P.K.'s boyfriend found A.J. in the bathtub not breathing. Rushed to the hospital by ambulance, A.J., now twenty-one months old, was near death. His body was covered with bruises and his body temperature was ninety-two degrees. An emergency room physician opined that the bruises were inflicted by a person. A.J. and Z.J. were removed from C.P.K.'s care that evening. A.J. returned to the foster parent who had cared for him during the two prior periods when he had been removed from his mother's care; Z.J. was placed in a separate foster home.

Once again, DYFS referred C.P.K. for counseling and a psychological examination. Consistent with prior evaluations, the psychologist opined that C.P.K.'s inability to provide a consistent level of care and attention to her children was attributable to her mental retardation, which, in turn, contributed to a continuing pattern of poor judgment, poor insight, inconsistent parenting, and a distant emotional bond between mother and children.

A neuropsychological report dated May 23, 2007, revealed indices of significant learning disability, impaired attention, concentration and conceptualization. Two attempts to provide counseling services in 2007 failed due to repeated missed appointments.

Based on the multiple failed reunification attempts and the poor prognosis for parenting, DYFS filed a complaint seeking termination of parental rights on August 1, 2007. A bonding evaluation between A.J. and his foster parent revealed the formation of a bond, although he also had an emotional bond with his mother. A similar evaluation of Z.J. and his foster parents revealed that the child viewed his foster parents as his psychological parents, but had no bond with C.P.K.

At trial, Dr. Mark Singer, who had performed the bonding and parenting evaluations, testified that C.P.K.'s mental retardation and oppositional nature rendered her incapable of parenting her sons in the foreseeable future. He noted that she had difficulty incorporating the parenting skills taught at several programs in which she had participated. He also opined that termination of parental rights would not do more harm than good. As to A.J., his bond with his foster parent would mitigate the loss he would experience by the loss of his mother. As to Z.J., Dr. Singer testified that the bond between Z.J. and his foster parents was strong, he would suffer emotional harm if that bond was severed, and C.P.K. lacked the emotional resources to assist him to cope with that loss.

Judge David B. Katz rendered oral and written opinions. He found that DYFS had established the four-prong statutory standard by clear and convincing evidence. He ordered that C.P.K.'s parental rights be terminated.

On appeal, C.P.K. argues that DYFS failed to produce sufficient evidence to satisfy the standard for termination of parental rights. Specifically, she argues that she caused no harm to her children, that she followed the recommendations made by DYFS and ordered by the court, that DYFS failed to provide the services to allow the family to stay together, that DYFS made insufficient efforts to keep the siblings together, and that termination will disturb an existing bond between mother and children and cause harm to them.

Termination of parental rights is governed by a four-part "best interests of the child" standard. N.J.S.A. 30:4C-15.1.a. In essence, the standard concentrates "on whether the parent has harmed or is likely to continue to harm the child." In re Adoption of Children by G.P.B., 161 N.J. 396, 412 (1999). As such, parental rights can only be terminated if:

(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) [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.]

This statutory standard is "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). In other words, "[t]he 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).

This standard balances the competing interests of the State to "'protect minor children from serious physical or emotional harm,'" against the fundamental right to parent one's children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (quoting In re Dep't of Pub. Welfare, 421 N.E.2d 28, 36 (Mass. 1981)); see also K.H.O., supra, 161 N.J. at 347. Because "[t]ermination of parental rights permanently cuts off the relationship between children and their biological parents," In re Guardianship of J.C., 129 N.J. 1, 10 (1992), the State must prove the four-prong standard by clear and convincing evidence, A.W., supra, 103 N.J. at 612.

On appeal, this court should not disturb the trial court's factual findings "unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). Further, this court should give deference to the factual findings of a family court because of its "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998).

To satisfy the first prong of the best interests standard, the trial judge must find conduct that threatens or impairs the child's health and will likely have continuing deleterious physical or emotional effects on the child. K.H.O., supra, 161 N.J. at 352. Here, the record is replete with numerous instances of unhealthy and inadequate living conditions. On the very first visit, C.P.K. admitted she collected urine throughout the day in a bucket and emptied it once a day to avoid multiple trips to the bathroom located on the second floor of her home. The same residence lacked hot water and a refrigerator. On multiple occasions, A.J. was found in a dirty and wet diaper, and there was inadequate food in the house. Despite attendance at parenting programs, nurses observed C.P.K.'s emotional detachment from her infant. Developmental delays were attributed to her inattention and emotional distance from her child. Finally, her decision to leave him in the care of her boyfriend almost cost A.J. his life.

C.P.K. demonstrated an inability to alter her interaction with her children, particularly A.J., to provide stable and adequately equipped housing over a period of twenty-one months, and to consistently participate in the services recommended and ordered. These failures demonstrated that she was unwilling or unable to eliminate the harm caused to her children. Similarly, the record contains abundant evidence of multiple services provided to C.P.K. to effectuate reunification. DYFS attempted to investigate placements with maternal relatives. The record reveals, however, that the home of the one family member suggested by C.P.K. could not accommodate another child and certainly not two children. Furthermore, this relative eventually withdrew her name from consideration.

Finally, the record supports the trial judge's finding that termination of C.P.K.'s parental rights will not cause either child more harm than good. This aspect of the best interests standard is founded on the acknowledged need for permanence in a child's life. A.W., supra, 103 N.J. at 610. This inquiry does not "require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, the analysis considers both the biological and foster relationships. Ibid. The question is whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. Of course, this requires an inquiry into the relationship the child has with both the biological and foster parents. Ibid.

The trial judge relied on the testimony of Dr. Singer. Moreover, C.P.K. does not refute Dr. Singer's conclusion that Z.J. had little or no bond with his mother and that no harm can come to him from severing a nonexistent bond. She does not dispute that Z.J.'s foster parents have become his psychological parents. Admittedly, A.J. spent more time than Z.J. in the care and custody of his mother, but during his short life prior to the final removal he had spent twelve months in the care of his foster parent rather than C.P.K.

In such a situation, the question for the trier-of-fact is whether A.J. "will suffer a greater harm from the termination of ties with [his mother] than from the permanent disruption of [his] relationship with [his] foster parent[]." K.H.O., supra, 161 N.J. at 355. In other words, the trier-of-fact focuses on which caretaker is better able to deal with the loss that invariably follows a severed bond. Judge Katz found that the foster parent to A.J. was better able to assist any loss suffered by A.J. This finding is well supported by this record.

Accordingly, we affirm the January 7, 2009 order terminating the parental rights of C.P.K. to her sons, A.J. and Z.J.

Affirmed.

 

Default judgments terminating the parental rights of J.H., a/k/a J.H.H. and Unknown Father of Z.T.S.J. were entered on July 31, 2008, and July 24, 2008, respectively.

(continued)

(continued)

2

A-3453-08T4

RECORD IMPOUNDED

November 13, 2009