NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. A.E.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5903-07T45903-07T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

A.E.H.,

Defendant-Appellant.

_______________________________

IN THE MATTER OF THE

GUARDIANSHIP OF S.W.,

H.D.T. and R.R.T.,

Minors.

_______________________________

 

Submitted October 13, 2009 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG 04-57-08.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amy M. Williams, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Lisa Godfrey, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors S.W., H.D.T. and R.R.T. (Phyllis G. Warren, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant A.E.H appeals from a May 30, 2008 order of the Family Part terminating her parental rights to her three children, S.W., born May 30, 2005; H.D.T., born November 20, 2006; and R.R.T., born September 3, 2007. We affirm.

I

The following pertinent evidence was presented at the guardianship trial, which was held on April 23, 2008. The State presented the history of its involvement with defendant through the testimony of Billie Paugh, who had been the case worker for the two older children since the beginning of 2007, and for the youngest child since January 2008. She was also the custodian of records for the Division of Youth and Family Services (Division or DYFS) with respect to these children.

S.W. first came to the Division's attention in August 2005, when the Brooklawn police department called to report that the child and her family were living in "deplorable conditions." On investigation, the Division found S.W. living with her parents and maternal great-grandparents in a house that was littered with "cat feces all over the home" and was otherwise uninhabitable. Following an emergency removal, the Division was awarded custody of the child, who was placed in foster care.

The Division provided defendant with parenting classes, a psychological evaluation, and a psychiatric evaluation. She cooperated with these services, and S.W. was eventually returned to her custody in October 2006, on the understanding that mother and child would be living in Philadelphia with the child's paternal grandparents. However, the Division later received information that defendant was taking the child back to the maternal great-grandparents' house in Brooklawn, in violation of the October 11, 2006 order returning custody to defendant.

According to Ms. Paugh, H.D.T. was removed from defendant and placed in foster care shortly after his birth in November 2006. H.D.T. was a "high risk" premature baby who needed to be maintained on an apnea monitor. When the Division case worker inquired why he was not on the monitor, A.E.H. stated that "the nurse told her" that the monitor could be discontinued. After learning that defendant's statement was not true and that defendant had not brought the baby to the doctor for needed follow-up appointments, the Division removed the baby and placed him in foster care. The agency also removed S.W. because defendant had repeatedly returned with the child to the great-grandmother's house in Brooklawn.

S.W. was placed with defendant's mother, J.H., in the home of J.H.'s paramour. However, S.W. was removed from that home on February 1, 2007, after the paramour insisted that J.H. and the baby leave his house. According to Division records, the paramour told Paugh that A.E.H. and her boyfriend Q.T. had threatened him. S.W. was placed in foster care, because J.H. no longer had a stable home for her. In fact J.H.'s plan was to go live with her parents in Brooklawn, a home the Division had previously found unsafe for the child to live in.

Again, the Division provided defendant with parenting classes as well as TAFCAR, which Paugh described as a "service that was going into the home and helping her with learning how to [sic] daily living and helping her clean up the [Brooklawn] home and to get it to the standards of the Division." The agency also referred defendant for an additional psychological evaluation.

This time, defendant did not complete the parenting classes. Moreover, although the Division arranged for additional in-home parenting training through the Robin's Nest program, defendant did not take advantage of that opportunity either. According to Paugh, defendant "would not let the Robin's Nest worker in the home and [refused] the services. She said she didn't have her kids, and she didn't need the service." The Division's contemporaneous records from March 15, 2007 corroborate Paugh's testimony that defendant refused services from Robin's Nest.

Paugh testified that she had observed defendant visiting with her children on several occasions. According to Paugh, A.E.H. had very little interaction with the children during these visits. After one of the visits, at which Paugh was not present, a nurse reported to Paugh that A.E.H. did not appear to know how to safely hold H.D.T. while changing his diaper.

Paugh testified that defendant's youngest child, R.R.T., was removed from defendant at birth. Before the baby was born, the Division had defendant evaluated at Rowan University to determine whether she could care for the baby. The evaluator reported that she "would not be able to safely parent that child. That she lacks basic parenting skills."

At the time of the hearing, all of the children remained in foster care. Paugh testified that the Division had looked for relative placements, but could not identify any. Defendant's mother could not provide housing for her. The paternal grandmother in Philadelphia was deemed unable to supervise defendant, because she had previously repeatedly allowed defendant to take S.W. to the maternal great-grandparents' uninhabitable house and spend the day there. She also had "a history with DCF in Pennsylvania." Neither grandparent responded to the "rule out" letters the agency sent them in May 2007. H.D.T.'s paternal grandmother was also ruled out because she had "a DYFS history."

According to Paugh's observations, S.W. was "very happy" and "thriving" with her foster family. She referred to the foster mother as "mom" and the other children in the home as her brother and sister. Likewise, H.D.T. and R.R.T. were together in another foster home and were "doing well" there. Both children were medically fragile, and the foster placement was a special "medical fragile SHSPs home." The foster parents were able to meet both children's special medical needs. The Division's plan for all of the children was adoption by the current foster parents.

Paugh testified that defendant could not be reunited with the children because of her inability to parent them, and particularly her inability to care for medically fragile children. Additionally, she had no stable housing. In fact, the last time the agency had tried to evaluate the house in which defendant was living, she "would not let the investigators into the home."

The State also presented testimony from a psychologist, Dr. Linda Jeffrey, who had conducted several psychological evaluations of A.E.H., bonding evaluations of A.E.H. and the children, and bonding evaluations of the foster parents and the children. During the bonding evaluations, Jeffrey observed that A.E.H. demonstrated minimal parenting skills. For example, despite taking parenting classes, she did not know how to dress the children after changing their diapers, and did not properly dispose of the diapers or wash her hands after changing them. She told Jeffrey that a child's normal temperature was 105 degrees. She also engaged in minimal interaction with the children during the evaluation. The children exhibited no bond with her and were unconcerned about leaving her at the end of the visit.

Although it was not really possible to conduct a bonding evaluation with R.R.T., because he was only three months old, Jeffrey nonetheless observed interaction between this child and A.E.H. Dr. Jeffrey observed that A.E.H. did not display the kinds of behaviors that would lead to bonding. She did not maintain eye contact with the child and could not soothe him when he was crying.

She had difficulty with elementary child care procedure such as burping him and changing his diaper in a hygienic manner, managing his clothes. And since this is her third child, that was of real particular concern.

. . . she was not displaying the attunement or nurturing responses that would be likely to establish a secure attachment.

Based on what she observed, as well as the results of extensive psychological testing, Jeffrey concluded that A.E.H. was not capable of acting as a parent to the children. She diagnosed A.E.H. as follows: rule out anxiety disorder, borderline intelligence, rule out mild mental retardation, rule out learning disability, and personality disorder NOS with narcissistic and histrionic personality features. Jeffrey made clear that her opinions concerning defendant's parenting ability were not solely based on her intelligence level:

[T]here are people who have mild mental retardation, let alone borderline intelligence who through appropriate socialization and training are able to, with a support network, parent their children.

However, defendant's problems were more complex, because she had "adaptive skills problems" as well:

[A.E.H.] had reported on the Millon [test] that she did not wish to have close friendships, and that when she was alone and away from home, she experiences anxiety and panicky feelings. So this is a person who has a great deal of difficulty establishing the autonomy of an adult . . . .

In her testimony, Dr. Jeffrey opined that the children would not suffer serious and enduring harm if defendant's parental rights were terminated. On the other hand, in evaluating the respective foster parents of S.W. and H.D.T. (who were with separate foster families), Dr. Jeffrey found that the foster parents demonstrated effective and active parenting skills, and the children demonstrated a secure bond with them. She also opined that each foster parent had become the child's psychological parent, and the children would suffer serious and enduring psychological harm if separated from the foster parents.

Dr. Jeffrey also testified that permanency was "[e]xtremely important" to children so that they can develop "a sense of stability, order, and belongingness." She opined that even if A.E.H. were to immediately receive additional services to address her parenting issues, those services would have to be provided "indefinitely." She confirmed that the children did not "have the time" to wait for A.E.H. to become a fit parent:

[T]hese children are in critical time periods in terms of attachment and development. Children cannot be put on the shelf. They are individual people with their own needs and their own requirements in order to develop normally.

Contrary to defendant's appellate contentions, Dr. Jeffrey's assessment of A.E.H. was consistent with a report rendered by Dr. Janet Cahill, who had evaluated defendant in July 2007 at Rowan University. According to Dr. Cahill:

[A.E.H.'s] cognitive impairments result in a profound inability to provide for basic care for her children.

. . . Without daily and extensive supports from a stable and mature adult, [A.E.H.] is not able to fulfill an unsupervised caretaking role for her children. To be clear, her parenting is so limited that leaving her children with her for any length of time would place them at risk of significant harm. Sadly, [A.E.H.] loves her children and wants to protect them. There is no evidence that she has intentionally hurt them. She simply does not have the problem[] solving skills, judgment and insight necessary to provide basic care This is expected to be a life long problem for [her].

Dr. Cahill further noted that A.E.H., then twenty-six years old, had a demonstrated pattern of unstable and inappropriate relationships with men, including an abusive relationship with S.W.'s father, and "becoming involved with teenage[d] boys and becoming pregnant when she does not want to."

In her report, Dr. Cahill recommended that defendant be referred to the Division of Developmental Disabilities (DDD) for help with her own life activities, including helping defendant avoid another pregnancy. However, contrary to defendant's contentions on this appeal, Dr. Cahill did not opine or recommend that DDD services could enable defendant to become an effective parent. Rather, Dr. Cahill opined that defendant "is in need of long term services and supports herself" and "will likely need [DDD] services for the rest of her life."

Defendant did not offer any expert testimony to rebut the State's case, although defendant herself testified briefly. Defendant testified that she was currently living at her grandparents' house in Brooklawn. She agreed that the house had been in bad condition when S.W. was taken from her, but testified that the house had since been "all cleaned up." She denied that any Division staff had tried to investigate the house or that she had refused to admit them. According to defendant the TAFCAR agency did not help her clean the house, but tried unsuccessfully to help her find housing.

Defendant testified that her grandfather no longer lived in the Brooklawn house. At the time of her testimony, she was living in the house with her grandmother, who had recently been released from the hospital. She testified that a nurse helped her to care for the grandmother, and defendant's mother visited regularly to help as well. Defendant denied ever refusing to let the Robin's Nest worker in the house, and she expressed willingness to take more parenting classes.

Defendant admitted that even before the Division took custody of H.D.T., she was not actually caring for him. Rather, the baby's paternal grandmother was caring for him, and defendant visited him. According to defendant, the grandmother was supposed to take the baby to his doctor's appointments, but neither the grandmother nor defendant did so.

None of the experts who examined defendant had opined that defendant would be able to care for her children independently. However, when asked about her plans for the children if they were returned to her, she stated only that she would "spend a lot of time with them." She did not testify that either her mother or the nurse would be available to care for the children, as opposed to caring for the grandmother. Defendant offered no evidence or explanation as to how she would be able to care for her ailing grandmother, take care of herself, and take care of three small children.

In a written opinion dated May 2 and May 30, 2008, the trial judge credited the testimony of Dr. Jeffrey and Ms. Paugh. He concluded that although the Division had provided her with appropriate services, A.E.H. was incapable of parenting her children; that the children would be at risk if returned to her custody; that they had bonded with their foster parents and were in need of stability and permanency; and that termination of parental rights was in the children's best interests.

II

On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,' and the trial court's findings 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 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Indeed, special deference is owed to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). However, "[t]hat fundamental parental right . . . is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." N.J. Div. of Youth and Family Servs. v. E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts seek to act in the "best interests of the child." N.J.S.A. 30:4C-15(c).

On this appeal, A.E.H. contends that the trial judge's written decision contained inadequate factual findings and that the findings he made were against the weight of the evidence. She also contends that the Division failed to meet its proofs under the four-part guardianship inquiry articulated in N.J. Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1:

a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:

(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.

See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not discreet and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth and Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008). Particularly pertinent to this case, "the focus of the inquiry is not only whether the parent is fit, but also whether he or she can become fit within time to assume the parental role necessary to meet the child's needs." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).

Bearing in mind that the trial judge, now retired, rendered written opinions that could have been more thorough, we have carefully reviewed the record to determine whether the judge's decision to terminate parental rights as to each child is nonetheless supported by sufficient credible evidence. Based on our own review, we are firmly convinced that the judge reached the correct decision. The Division proved by clear and convincing evidence that termination of parental rights is in the best interests of all three children.

We understand that defendant sincerely wants to have a relationship with her children. However, the evidence overwhelmingly supports the conclusion that, despite the Division's providing services to assist her, defendant is incapable of functioning as a parent to these children due to her mental and emotional limitations. The evidence supports a finding that the Division acted properly in removing each child from defendant's custody. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., supra, 161 N.J. at 383.

The Division thereafter offered services to assist defendant in learning how to parent the children and to help her find appropriate housing. Defendant refused or failed to take advantage of services the Division offered, including individual parenting classes and in-home Robin's Nest services. She also repeatedly missed visits with the children. Moreover, due to her limitations, as cogently detailed in Dr. Jeffrey's testimony, defendant simply does not have, and will not have at any point in the foreseeable future, the ability to provide these children with a safe, secure and permanent parent-child relationship. She cannot parent these children independently, and she does not have family members who can both care for her and care for her children.

The children need stable and permanent homes with capable parents. It is their right. The two older children do not have a parent-child bond with defendant and have bonded with their respective foster parents, who have become their psychological parents and wish to adopt them. Severing the bond with the foster parents will cause these children serious and lasting harm. The youngest child has never lived with defendant and she has demonstrated no ability to form a parent-child attachment with him. He has been with his foster family since September 2007. The evidence establishes that the foster parents are capable parents, able to handle this child's special needs, and they want to adopt him together with his brother H.D.T.

To the extent not specifically addressed here, defendant's appellate contentions are unsupported by the evidentiary record, and are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). In summary, we affirm the order on appeal, because the Division satisfied all four prongs of the test set forth in N.J.S.A. 30:4C-15.1a, and established by clear and convincing evidence that termination of parental rights is in the children's best interests.

 
Affirmed.

This child is also referred to as R.C.T.

These were the parents of S.W.'s father, A.A. The father's parental rights were terminated in this action, but he has not appealed that termination. Therefore we will not discuss any evidence concerning A.A. unless it is pertinent to A.E.H.'s appeal. Nor will we discuss facts concerning the fathers of the other children, who likewise are not appellants.

H.D.T. was removed from defendant's custody on December 12, 2006. Contrary to defendant's appellate contentions, the record demonstrates that H.D.T. was not medically cleared to be taken off the apnea monitor until March 7, 2007, about three months after he was placed with his foster parents.

Q.T. may be the father of H.D.T. and R.R.T., but refused to take a paternity test. Q.T. was sixteen when H.D.T. was born.

Treatment Alternatives for Child at Risk.

The evaluations took place on November 14, 2007 and December 11, 2007.

Dr. Jeffrey's testimony was consistent with opinions previously rendered by other experts who had diagnosed A.E.H. as mildly mentally retarded.

R.R.T. and H.D.T. were with the same foster parents. However, Jeffrey did not perform a bonding evaluation between the foster parents and R.R.T. She was unsure why R.R.T. was not evaluated, but noted that the child was too young to have formed a bond yet.

Nor did any of the other experts who evaluated defendant indicate that DDD services would assist defendant with her parenting skills. Defendant's appellate arguments regarding the potential benefits of DDD services are not supported by any citations to evidence in the record.

(continued)

(continued)

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A-5903-07T4

RECORD IMPOUNDED

November 4, 2009