NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.L IN THE MATTER OF THE GUARDIANSHIP OF A.L.L

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4196-08T44196-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

L.L.,

Defendant-Appellant.

IN THE MATTER OF THE GUARDIANSHIP

OF A.L.L.,

A Minor.

___________________________________________________________

 

Submitted December 16, 2009 - Decided

Before Judges Axelrad, Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-29-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Miles Lessem, Designated Counsel, on the brief).

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

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

PER CURIAM

In this appeal, defendant L.L. (the mother) argues that the proofs were insufficient to support the judgment terminating her parental rights to her daughter, A.L.L., the child in question in this action. We find no merit in the mother's arguments and affirm substantially for the reasons set forth in the oral decision of Judge Frederic S. Kessler. We add only the following comments.

Judge Kessler reached his decision following a three-day trial. At trial, the Division of Youth and Family Services presented the testimony of three caseworkers and a psychologist. The mother did not testify on her own behalf nor did her attorney call any witnesses. In reaching his decision, Judge Kessler applied N.J.S.A. 30:4C-15.1a, which mandates that, in order to obtain a termination of parental rights, the Division must prove, 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 . . .;

(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.

See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).

In appealing, the mother does not dispute that the first prong was met. That the mother did in fact endanger the health, safety and development of the child was stipulated and is beyond doubt. And, although the mother contends that the evidence was inadequate to prove by clear and convincing evidence that the other prongs were met, we conclude otherwise.

The record reveals that the mother was born drug-exposed and that she had a difficult childhood due to her mother's drug addiction and inability to care for her. In her youth, the mother apparently moved from the home of one relative to another. In 1999, when nine years old, the mother was granted SSI childhood disability benefits on the grounds that she suffered from mental retardation and speech/language delays. A.L.L. (hereafter "the child") was born on July 5, 2004, when the mother was fifteen years old.

Two months after the child's birth, the Division received a referral that mother and child were living in an uninhabitable basement in the home of the mother's aunt and uncle. In investigating, the Division learned from the aunt and uncle that the mother was "out of control," and at times stayed "out late at night and put herself in unsafe conditions." The mother had also assaulted her aunt.

Soon thereafter, the Division located the mother. She acknowledged living in the substandard basement and refused to return to the home of her aunt and uncle. When it was suggested that she move to another relative's home, the mother "became irate, cursing and screaming," to the point where police intervention was required. The mother was admitted for an emergency psychiatric evaluation and the child was placed in foster care. The Division provided supervised visitation and other family preservation services. The mother was placed at Strengthening Our Sisters, but soon ran away. She was found and placed in a short-term residential program, which she completed a month later.

Following that, Dr. Jeffrey Singer, a psychologist, evaluated the mother and recommended that she be placed in a group home where she could receive psychological and emotional support. On April 26, 2006, the mother was accepted into Crossroads, a residential program, but ran away slightly more than one month later. She remained missing until mid-August 2006, when the Division located her and learned she had given birth to H.B., Jr.

In June 2006, the trial court conducted a permanency hearing and approved a plan of adoption by relatives. The mother was provided with supervised visitation, and a substance abuse evaluation was conducted. The mother also received the benefit of parenting skill classes and individual counseling. Dr. Peter DeNegris conducted bonding and psychological evaluations. He concluded that a bond did not exist between mother and child. A psychiatric evaluation conducted by Dr. Alexander Iofin resulted in his conclusion that the mother was not a viable candidate for unsupervised handling of her children.

The Division assessed the availability of relatives for placement. On November 13, 2007, the mother made an identified surrender of her parental rights to her aunt and uncle, and a judgment of guardianship was entered. Later, the aunt and uncle advised of their inability to adopt and the judgment was vacated in April 2008.

The mother was again psychologically and psychiatrically evaluated. The recommendations remained the same. A new bonding evaluation was conducted. And again the mother was provided with individual counseling. The child was placed in a foster home in June 2008; her foster parents are committed to adopting her.

At trial, the mother stipulated to the evidence necessary to substantiate the first prong of the statutory test by clear and convincing evidence. In finding the second prong was met, Judge Kessler made the following findings:

[The mother] has had more than four years to demonstrate that she can eliminate the harm facing [the child], and that she can provide a safe and stable home. During that time she ran away from two placements, Strengthening Our Sisters and Crossroads, that sought to provide needed services to her. More recently, she failed to comply with the services offered by Final Stop and UCPC. She remains unemployed and at last report, she continued to live with relatives.

Dr. DeNegris conducted two psycholog-ical evaluations of [the mother], first in February of 2007 and again in June 2008. He testified as to both. His first evaluation, which related to both children, raised concerns based upon [the mother's] very low scores on psychological tests, her noncom-pliance with services and her instability.

He also observed [the mother with the child] and found [the child's] behavior did not reflect an attachment to [the mother], and that [the mother] appeared to lack the skills necessary to assist [the child] with adjusting to a new environment and bonding to a new caretaker.

He, thus, recommended that . . . parental rights . . . be terminated. He did hold out some possibility that [H.B., Jr.] could be reunited with [the mother and H.B., Sr.], although ultimately that reunification occurred only with [H.B., Sr.].

The second evaluation reinforced Dr. DeNegris' opinion in favor of termination. A year and a half after the first evaluation [the mother] remained unable to provide a safe and stable home. She was living with a cousin and the cousin's four children in a two-bedroom apartment. She had lost a job at a Newark Burger King because she could not remember everything.

She claimed that she could return there in a different position upon her return to Newark, but she offered no plans to return there, nor any indication that she sought similar work in her current location.

She continued to be noncompliant with services referred by DYFS other than parenting skills. And she offered only a vague plan for reunification, whatever DYFS wanted her to do.

For these reasons, as well as the lack of bond between mother and child, the judge concluded by clear and convincing evidence that the mother was unable to "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." N.J.S.A. 30:4C-15.1a(2).

In considering the third prong, the judge found -- as we recounted earlier -- that the Division met its burden of proving that reasonable efforts were made to assist the mother in correcting the circumstances that led to the child's removal and that alternatives to termination were considered. N.J.S.A. 30:4C-15.1a(3).

In examining the requirements of the fourth and last prong, the judge relied upon expert testimony that there is no bond between mother and child and that the child "appeared uncomfortable while in her birth mother's presence." Dr. DeNegris testified that when the child was asked to identify the person who was with her during the bonding evaluation -- referring to the mother -- the child answered, "I don't know." The judge also relied upon the psychological evaluation that indicated the child is "confused about and upset by contact" with the mother and that even allowing visitation at this point "will have a detrimental effect on [the child's] growth and development." On the other hand, the judge found that the child is "thriving in her current placement." According to those findings, the child is "not only comfortable in her current placement, but also appears to be more self-confident, outgoing and happy." For these and the other reasons recounted in his thorough oral opinion, Judge Kessler concluded that the Division had proven by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4).

In reviewing this matter, we are required to defer to the judge's fact findings so long as they are supported by adequate, substantial and credible evidence in the record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993). Having carefully reviewed the record in this most unfortunate case, we find no sound reason for disturbing the judge's findings. To the contrary, we affirm substantially for the reasons set forth in Judge Kessler's thoughtful oral opinion.

 
Affirmed.

We note that after the Division rested, defense counsel also stated that the mother rested. The mother was not present on the final day of the trial and the judge inquired as to her whereabouts. After being permitted to make one last telephone call to his client before resting, counsel advised that she was ill and would not appear. We commend the judge's decision not to enter the mother's default -- a practice which we recently condemned absent egregious circumstances and adequate notice. See N.J. Div. of Youth & Family Servs. v. P.W.R., __ N.J. Super. __ (App. Div. 2009).

Legal and physical custody of H.B., Jr., was later transferred to his biological father, H.B., Sr.

The mother had provided the names of individuals who may have fathered the child. One took a paternity test and was excluded as the father. Two others, A.A. and A.S., failed or refused to be tested and did not come forward to be heard at trial. As to them, the judge made findings that supported the termination of any parental rights they may have had. No appeal was taken from the aspects of the judgment that terminated the parental rights of A.A. and A.S.

(continued)

(continued)

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A-4196-08T4

RECORD IMPOUNDED

December 29, 2009