DIVISION OF YOUTH AND FAMILY SERVICES v. K.D.H.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3022-08T43022-08T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff-Respondent,

v.

K.D.H.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.G., A.H., D.P., R.J., K.B.,

and R.K., minors.

__________________________________

 

Submitted: February 3, 2010 - Decided:

Before Judges Stern, Graves and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-125-07.

Yvonne Smith Segars, Public Defender, attorney for appellant (Anamaria Bretao Bercik, Designated Counsel, on the brief).

Paula T. Dow, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Wendy Lauter, Deputy Attorney General, on the brief).

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

PER CURIAM

Defendant, K.D.H., appeals from a judgment of December 22, 2008, terminating her parental rights to six of her children. She asserts that:

POINT I: STANDARDS FOR TERMINATION OF PARENTAL RIGHTS.

POINT II: THE CHILDREN'S HEALTH, SAFETY AND DEVELOPMENT HAS NOT BEEN ENDANGERED BY THE PARENT.

POINT III: KH WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILDREN.

POINT IV: THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME.

POINT V: TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

POINT VI: DYFS FILED FOR TERMINATION OF PARENTAL RIGHTS WITHOUT THE BENEFIT OF A FACT FINDING.

We reject defendant's arguments and affirm the termination of her parental rights substantially for the reasons expressed by Judge John Callahan in his oral opinion of December 22, 2008.

As Judge Callahan noted at the very outset of his opinion, the tone of the matter was established by "a most unusual aspect, even for this Judge in all of the years of [his] trial work." As the judge stated, it helped his "understanding" of defendant. Defendant was produced for the trial while she was a prisoner in the jail of another county. Counsel advised the court that "she'd rather go back to the Union County Jail than stay in Essex County Jail throughout these proceedings," and affirmatively "waive[d]" her appearance. She told the judge she did not want to stay in Essex County because of

[]what I have to lose in Union County, I have -- I just ordered $125 worth of commissary, I signed it over to my roommate to get for me until I go back. I had no idea that I was going to be remanded to Essex County.

I have all of my personal belongings there, my personal papers, and once you leave, classification will pack your stuff up, and put it in a bag, and probably the inmates will go through it and take stuff out of my bag, out of my property. I've seen it done and I know how they do [it] in Union County.

I do not want to be remanded in Essex County. If I have to be remanded in Essex County, I'll waive my rights for appearance. I don't want to be here.

Defendant testified at a voir dire conducted on the subject that it was her "decision not to take part in this trial" because she did not "want to stay in Essex County." She acknowledged she was "waiving [her] appearance from being in trial, testifying in trial," and that she was "doing this of [her] own free will."

Thus, defendant chose not to participate in the trial which involved the termination of her parental rights. In his opinion, the judge stated:

[S]he did not wish to participate in this trial, not because she might lose a housing privilege, as can occur in a state institution by being on trial for a number of days, . . . but rather, in her situation, for reasons of concern briefly over what I call possessions and purchases that she recently made at the Union County Jail commissary and her concerns as to their security while she was away.

The judge questioned "why she might expend her monies the day before trial here in Essex County, in making such purchases at the commissary, knowing full well that she had a specific trial date in Essex . . . ." Even if defendant was addressing more valued and privileged personal belongings, we agree with the judge that the matter "provide[s] an inference as to how and what motivates" defendant, who the judge determined consistently placed her needs before those of her children.

The Division of Youth and Family Services (DYFS), nevertheless, presented the testimony of two psychologists, Dr. Andrew Brown and Dr. Elayne Weitz, and two DYFS workers. Charles Walsh, a DYFS caseworker, testified about references and services provided by DYFS, and the plans for the children. He explained that the children had once been placed with their maternal grandmother, but she did not "[send] the children to school" when they were with her. Furthermore, Dr. Weitz found that the grandmother's parenting skills were "questionable" and that she could not "make sound decisions." Dr. Weitz feared the "risk of a failed placement" if one of the children were placed with her.

Because the children were born at different times, they were taken into DYFS' custody and placed at different times. They were also evaluated by different professionals at different times. In October 2003, Dr. Mark Singer recommended against the reunification of defendant with her children because she was "lack[ing] the emotional resources needed to respond effectively to the needs of her children." In September 2004, Dr. Singer noted that defendant had not appropriately bonded with her children and not learned "from her experiences, as her children have been removed previously." He also asserted that "[t]hese children are in the need of a safe, consistent environment in which to grow" and that the children could face "significantly more harm" by being returned to their mother's care and thereafter removed again.

Dr. Charles Hasson performed psychological evaluations of defendant in 2003 and 2006, which indicated the need for long term therapy before unification could occur, and that defendant "remains character disordered," and "has a long way to go before she is able to manage her own life, let alone, take on the responsibilities of raising a child." He also believed defendant was not willing or able to make the necessary commitment. Various resources were provided, including participation in counseling and parenting classes. Yet her visits with her children were "inconsistent," which placed the visits "in serious jeopardy because of the poor absenteeism."

Having been in court when defendant executed her "waiver" of appearance, Dr. Brown opined that "she is self[-]centered to the point where she fails to recognize her duties, and her responsibilities, and her obligations to other people, in this case her children." His June 2008 report found that defendant "minimize[d] or blame[d] others for her mistakes and errors in judgment, and she has yet to demonstrate that she can provide a stable, nurturing, and predictable environment for any of her children." Dr. Brown testified that K.H. "does not demonstrate that she is either ready or prepared to parent."

In addition, Dr. Weitz conducted separate psychological evaluations of K.H. and her mother on separate dates in May and June 2007, and three bonding evaluations in May, June, and July of 2008. Dr. Weitz stated unequivocally that although DYFS had been working with defendant for ten years, "she [was] no closer to being competent to parent her children now than she was when neglect was first substantiated in 2000."

Defendant produced no witnesses.

Judge Callahan rendered an oral opinion in which he analyzed the facts and the four prongs that DYFS must prove by clear and convincing evidence in order to sustain termination. See N.J.S.A. 30:4C-15.1. He found that DYFS sustained its burden as to each of the prongs.

Defendant contends that "DYFS did not present any conclusive evidence that the children's health was endangered by the mother's relationship." She states that "[t]he many referrals and investigations done by DYFS simply revealed a poor family attempting to do the best under the circumstances." She also points to the fact that she was a DYFS client as a child and "there is no evidence DYFS assisted . . . [her] during her difficult years of growing up, contrary to the recommendations" of a psychologist when she was sixteen years old.

Moreover, defendant suggests there were alternatives to termination, and points to the paternal families, which were not being contacted for placement. However, it was not clear who all the fathers were. The maternal grandmother was interested as a resource, but, as noted above, she was ultimately ruled out. Furthermore, defendant complains that "[g]iven the ages of some of the children, it is reasonable to conclude they will become legal orphans because of the difficulties in adopting them. Further, they also have lost all contacts with their siblings and other biological relatives."

It is true that because of the ages of the children and the events over the years, there has been little contact between the siblings, and that their separation is a factor to consider. However, termination cannot be delayed to the detriment of the children, and there were no prospects of reunification at the time of trial.

The trial judge addressed the obligations of DYFS and recognized its "heavy burden" to prove that termination is in the best interest of the children. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102-03 (2008). However, as already noted, there is a real need for the State to assure stability for a child, In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999), and our review of the Family Part's determination is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). The judge's fact finding determination is entitled to deference and cannot be disturbed where, as here, "there is substantial credible evidence" to support it. E.P., supra, 196 N.J. at 104.

In this case, defendant's on-going neglect of the children, even when defendant went to the hospital to give birth to other children without providing appropriate supervision for the children at home, is clear. See N.J. of Div. Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 616 (App. Div.), certif. denied, 192 N.J. 68 (2007). It is also evident that defendant could not "cease causing the child[ren] harm before any delay in permanent placement becomes a harm in and of itself." Id. at 617 (quoting N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002)). Here, the evidence was more than sufficient to sustain the finding that termination was warranted based on the needs of children for permanency and the mother's inability to take care and provide for them in the reasonably foreseeable future. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592-93 (App. Div. 1996).

Finally, even though the transcripts have not been presented to us, there apparently was a Title 9 hearing that was dismissed before an adjudication of abuse or neglect when this Title 30 action was commenced. Defendant's rights were, in any event, protected by the Title 30 proceedings. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252 (App. Div. 2009), certif. denied, ___ N.J. ___ (2010). See also N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546 (1994).

The judgment is affirmed substantially for the reasons stated in Judge Callahan's oral opinion of December 22, 2008.

Affirmed.

 

None of the fathers appeared or participated in the hearing. Their parental rights were terminated. The judgment refers to six children, although DYFS states there was an "identified surrender" of one of the children. We are also advised that two other children were placed in DYFS' custody in February 2003, when the children's maternal grandmother reported that defendant was arrested and in jail. Those children are not involved in these proceedings.

The transcripts refer to Judge Glenn Grant as the trial judge. However, DYFS advises that it was Judge Callahan. We also take judicial notice that, at the time of the trial, Judge Grant was the Acting Administrative Director of the Courts with offices in Trenton.

In light of the need for permanency "to secure and stability for the child," see In re Guardianship of D.M.H., 161 N.J. 365, 385 (1999), we note that defendant was incarcerated in the Federal Correctional Facility in Philadelphia when the appeal was filed. We do not know the reason. She had tested positive for marijuana while the children were in the care of DYFS.

(continued)

(continued)

2

A-3022-08T4

RECORD IMPOUNDED

March 19, 2010