NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.B and T.T., E.B., and C.P.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4254-08T44254-08T4

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant,

and

T.T., E.B., and C.P.,

Defendants.

________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF J.T., L.B., J.B. and N.P.,

Minors.

____________________________________________________

 

Submitted March 17, 2010 - Decided

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-34-08.

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

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Stephanie Anatale, Deputy Attorney General, on the brief).

Yvonne Smith Segars, Public Defender, Law Guardian, attorney for minors (Nancy E. Scott, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, we consider the arguments of defendant S.B. (defendant) regarding the termination of her parental rights to four children fathered by three different men. The rights of one of the fathers, E.B., was also terminated; he has not appealed. The trial judge did not terminate the parental rights of the other two fathers, T.T. and C.P. We affirm in part and remand in part.

I

The circumstances that led to the commencement of this action and the termination of defendant's parental rights began when defendant, who was then fourteen-years old, gave birth to her first child, J.T., on January 23, 2004. T.T., the child's father, was also fourteen. The child was born prematurely and the hospital refused to release the child to defendant because she was living in a welfare hotel with her mother. The Division of Youth and Family Services (the Division) intervened and, after investigating, decided to allow the child to be released to T.T., who lived with his mother in Lakewood. Defendant also moved into T.T.'s home. However, in April 2004, defendant's mother moved out of the welfare hotel and into an apartment in Lakewood. Defendant left T.T.'s home and moved in with her mother; the infant remained with T.T. and his mother.

Conflict almost immediately developed between defendant and her mother. Despite the Division's best efforts to achieve stability, defendant moved back and forth between her mother's and adult sister's residences, and also began "staying out a lot."

In March 2005, the Division learned that defendant was pregnant and obtained her admittance to a residence program for pregnant teens. In early June 2005, T.T.'s home -- where J.T. continued to reside -- was raided by police, and T.T.'s mother was arrested for firearm possession. The child was removed from T.T.'s home and placed with defendant's mother.

On October 7, 2005, defendant gave birth to her second child, L.B., and returned with the child to the residence program for pregnant teens. Unfortunately, two months later, defendant had an altercation with another resident and was expelled. Defendant did not then return to school or get a job. Instead, she and L.B. moved back into her mother's apartment where her oldest child, J.T., was still residing. The Division continued to monitor the situation.

On September 21, 2006, defendant gave birth. This third child, J.B., was born prematurely and with a host of medical conditions, including respiratory failure, apnea, gastro-esophageal reflux, ateriosus, anemia, immature retinas and feeding problems. J.B. remained hospitalized for nearly two months, where he was intubated and placed on a ventilator. Before releasing the child, the doctor gave defendant a list of specific instructions pertaining to feeding, medication and care. Defendant was also told to make appointments for follow-up visits with a pediatrician and an ophthalmologist within one week of the child's release, and, later, with a cardiologist. In addition, defendant was instructed to ensure that J.B. was connected to a "cardiopulmonary resuscitation" machine and an apnea monitor for most of the day.

On November 22, 2006, a Division caseworker visited defendant's home to ensure she was heeding the doctor's instructions. The caseworker's observations resulted in an emergency removal of all three children. The caseworker first noticed that J.B. was not connected to his apnea monitor; when asked, defendant said the "machine kept beeping and it was annoying." The caseworker next learned that defendant had not taken J.B. for any follow-up appointments, despite the hospital's explicit instructions. The caseworker also heard defendant threaten to "beat [J.T.'s] ass," after which she jokingly admitted to abusing J.T. earlier in the day. In addition, the caseworker saw defendant holding J.B. in an inappropriate manner; according to the caseworker, defendant "pretty much was not supporting his head, wasn't supporting his back, kind of flopping the baby around like a rag doll."

Following removal, J.T. and L.B. were placed in a nonrelative foster home, and J.B., the newborn, was transported to the hospital. The next day, J.B. was released from the hospital and placed in a foster home.

Defendant gave birth to her fourth child, N.P., on May 31, 2007. N.P. was born prematurely and with medical problems, including apnea, intraventricular hemorrhaging and sepsis. She remained hospitalized until August 2007 when released to the Division, which transferred her to Saint Clare's Specialized Home Provider Services program for medically fragile children.

II

After a three-day trial, the judge terminated defendant's parental rights to all four children. The judge also terminated E.B.'s parental rights to his two children, L.B. and J.B., finding he had never played a role in their lives. The judge, however, did not terminate the parental rights of T.T., the father of the oldest child, or C.P., the father of the youngest child. The judge was not satisfied that the Division made reasonable efforts to reunify the two fathers with their daughters. A final judgment memorializing these rulings was entered on June 30, 2008.

Defendant did not immediately appeal. Instead, in October 2008, she filed an untimely motion for reconsideration. On December 18, 2008, while this motion was pending undecided, J.B. -- defendant's third child -- was adopted in a proceeding that took place in another vicinage. On January 7, 2009, defendant's motion for reconsideration was denied. Defendant did not file a notice of appeal until May 30, 2009. E.B. has not filed an appeal.

Before turning to the findings and conclusions reached by the trial judge regarding defendant's parental fitness and the statutory factors, we first consider other issues that impact on our disposition of this appeal. First, as we have noted, the judge did not terminate the parental rights of C.P., the father of defendant's youngest child, N.P. Because N.P. is presently in her father's custody, the Division has consented to a vacating of the judgment terminating defendant's parental rights to N.P. We, thus, remand to the trial court to determine whether the judgment -- insofar as it terminated defendant's parental rights to N.P. -- should now be vacated.

Defendant's parental rights to J.B. are also in an atypical posture. After judgment was entered in the trial court but before the filing of an appeal, J.B. was adopted by a nonrelative. That event certainly imperiled defendant's appeal of the judgment insofar as it terminated her parental rights to J.B. See N.J. Div. of Youth & Family Servs. v. J.C., 411 N.J. Super. 508 (App. Div. 2010) (holding that the undue passage of time after entry of judgment coupled with an intervening nonrelative adoption of the child required a denial of leave to file a notice of appeal out of time). However, we find it unnecessary to determine whether the appeal, insofar as it relates to the adopted J.B., has been rendered moot -- a question our courts have yet to clearly answer, id. at 513 -- because we are not persuaded by defendant's attack on the judgment terminating her parental rights to J.B. We, thus, affirm the judgment insofar as it terminated defendant's parental rights to J.T., L.B. and J.B. for the following reasons.

III

Defendant argues in this appeal that we should reverse, claiming the evidence was insufficient to support a termination of her parental rights. We disagree.

Initially, we recognize that our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); Cesare v. Cesare, 154 N.J. 394, 412 (1998).

In determining whether to terminate parental rights, our courts are required to employ the four-prong test set forth in N.J.S.A. 30:4C-15.1(a), which requires that the Division prove by clear and convincing evidence:

(1) The child's safety, health or develop-ment 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 [D]ivision 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 A.W., supra, 103 N.J. at 604-11.

This four-prong test is "extremely fact sensitive" and requires particularized evidence that addresses the specific circumstances in a given case. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The prongs are not separate and discrete but "interrelated and overlapping." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). The inquiry focuses not only on whether a parent is fit, but also whether the parent "can become fit within time to assume the parental role necessary to meet the child's needs." Id. at 87.

The trial judge carefully applied this test to the evidence she found to be clear and convincing. In examining each prong in light of defendant's arguments, we find no reason to second-guess the judge's findings.

A

The first prong demands that the court explore the "endangerment of the child's health and development resulting from the parental relationship," with special emphasis on potential future harm. K.H.O., supra, 161 N.J. at 348. The focus is not on a "single or isolated" event, but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.

The record is replete with clear and convincing evidence of the deleterious effect of defendant's parenting of these children. We have already noted that defendant disconnected the medically fragile J.B.'s apnea monitor because its beeping sound annoyed her and that she also failed to follow doctor's orders regarding medical appointments for the child.

On another occasion, defendant threatened J.T. in the presence of a Division caseworker and then joked about physically abusing her children. In addition, the caseworker testified that defendant allowed one infant to sleep on a couch at night. Concerned that the baby might fall off the couch, the Division purchased a crib; defendant never assembled it.

Defendant has acknowledged she is not an ideal parent, but claims she is no danger to her children. She argues that the evidence amassed by the Division is attributable to youthful indiscretion and poverty, considerations that she maintains are insufficient to justify a termination of parental rights. The evidence, however, points to unfitness extending well beyond mere immaturity. One psychologist concluded that defendant "presents with a multitude of problems," and diagnosed her with oppositional defiant disorder, which was deemed unlikely to improve due to defendant's lack of a family support structure. Another psychologist drew similar conclusions.

In addition, in 2006, defendant was evaluated by Dr. Alan Lee, who reported that she was "generally far less mature and more primitive than expected for her age and generally sees herself and her life to be fairly comfortable." He described defendant as "angry, hostile and labile" and noted she "gets frustrated quite easily" and "has difficulty tolerating individual differences and . . . frustration." Dr. Lee was particularly concerned that defendant "shows a number of characteristics highly consistent with known chi[l]d physical abusers as noted by her significantly elevated CAPI Abuse Scale Score." He concluded that defendant is not prepared "to be an independent caregiver of any minor child, especially multiple children who may present some particular demands."

Defendant was evaluated a second time by Dr. Lee in May 2008. After meeting with her, Dr. Lee reconfirmed his earlier conclusions and ultimately decided that defendant's lack of improvement signified that reunification would be detrimental to the children. Dr. Lee also provided this testimony at trial:

While [defendant] may be largely free of a severe mental illness such as schizophrenia, there are a number of maladaptive traits . . . that largely interfere with her ability to consistently provide and care for herself no less a minor child . . . . She appeared to struggle with ongoing instabilities in her lifestyle[,] for example . . . unemploy[ment], . . . her residence situation, [and] her relation-ship[s]. . . . [I]n general she was not supported as an independent caregiver to any of the minor children despite the passage of time, despite the various recommended services at this point many months since the [D]ivision's involvement.

When asked whether defendant could improve psychologically, Dr. Lee responded that "her prognosis for change would be guarded at best. More likely it is in the range of being poor."

This evidence amply supported the judge's findings on the first prong.

B

The second statutory prong requires that the Division prove defendant is unwilling or incapable of eliminating the potential harm to the children. K.H.O., supra, 161 N.J. at 348. The "inquiry is aimed at determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Id. at 348-49 (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

Evidence regarding the statutory prongs often overlaps, R.L., supra, 388 N.J. Super. at 88, as is the case here. As discussed with regard to the first prong, defendant is burdened by psychological problems and the absence of a proper support system to help her deal with those problems. The expert opinions contained in the record reveal that it is highly improbable that defendant will ever overcome her difficulties.

Indeed, defendant's lifestyle is not conducive to raising children. The record reveals defendant frequently relocates because she is constantly at odds with her mother and sister. She has been in and out of school and has proven incapable of holding a steady job. In addition, she has tested positive for drug use and been involved in a number of physical altercations. And defendant has been resistant to programs designed to help her improve as a parent. She was expelled from one program for fighting and deemed unmanageable during a short stay in another.

There was an abundance of clear and convincing evidence to support the judge's findings on the second prong.

C

To satisfy the third prong, the Division was obligated to show it had undertaken "reasonable efforts to provide services to help the parents correct the circumstances that led to the child's placement outside the home." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007). Such efforts "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." Ibid. The goal is to "make it possible for the child to safely return to his home." G.M., supra, 198 N.J. at 398.

Here, the record reveals that, among other things, the Division provided numerous psychological evaluations, and referred defendant to two residential programs for pregnant teens. Although these services at times appeared helpful, defendant's behavior precluded any real progress. The Division also provided in-home parenting services for defendant. She and her mother participated in the Family Preservation Service, which consisted of almost thirty hours of face-to-face meetings, spread out over thirteen sessions, during which a therapist assisted defendant and her mother in improving as parents. When that program ended, the Division tried to enroll defendant in another parenting program, but she refused to participate, thinking it would not help. In addition, the Division made a concerted effort to find daycare for defendant's children so she could return to school, but pregnancy got in the way of those plans.

Although it can always be argued that the Division could have done more, M.M., supra, 189 N.J. at 286, our review is limited to whether the trial judge was justified in holding that the Division did enough. We are satisfied that the judge properly held there was clear and convincing evidence that the Division met the requirements of the third prong. There comes a point in time when it is no longer reasonable to wait for the parent to make sufficient use of the services that have been provided. It is simply unreasonable to attempt to return a child to parents who "refuse to engage in therapy or other services" or "cannot benefit from therapy or instruction." A.W., supra, 103 N.J. at 610.

D

The fourth prong demands that the Division show that termination of the parent's rights will do "no more harm than good." N.J.S.A. 30:4C-15.1(a)(4). The inquiry is "whether a child's interests will best be served by completely terminating the child's relationship with" the parent. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). This prong requires that the court evaluate the competing relationships and decide whether "the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355.

The bonding evaluations in the record reveal that J.T., L.B. and J.B. are not psychologically dependent upon defendant. After watching defendant interact with them, Dr. Lee noticed that defendant was not referred to as "mom," and none of the children seemed anxious to see defendant when she entered the room or sad when the session ended. Instead, the children appeared mostly disinterested in their mother. Consequently, Dr. Lee concluded there was a low risk of severe, enduring, or irreparable psychological harm to the children if their relationship with defendant was ended. In addition to the bonding evaluations, the record reveals that J.T. and L.B. were thriving in their current placements and J.B. was thriving both before and since he was adopted.

We have been presented with no persuasive reason why we should second guess the judge's finding that there was clear and convincing evidence to satisfy the fourth prong as to J.T., L.B. and J.B. Because the bonding evaluations reveal that the children are not attached to defendant, and because the record shows that the children are doing well in their current homes, the trial judge was justified in holding that a termination of rights would do no more harm than good. We, thus, conclude that the judge was justified in concluding that there was clear and convincing evidence to support the termination of defendant's parental rights.

IV

For the reasons set forth above, we affirm the judgment insofar as it terminated defendant's parental rights to J.T., J.B. and L.B. We remand for consideration of whether the judgment should be vacated insofar as it terminated defendant's parental rights to N.P. in light of the fact that the parental rights of her natural father of that child remains intact and in light of N.P.'s reunification with her father.

 
Affirmed in part; remanded in part. We do not retain jurisdiction.

J.B. was not placed in the same foster home as his siblings.

At the time of trial, N.P. was still living at St. Clare's. She was released to her father, C.P., in November 2009.

The Division is under no obligation to seek the termination of a parent's rights if "[t]he child is being cared for by a relative and a permanent plan for the child can be achieved without termination of parental rights." N.J.S.A. 30:4C-15.3(a); see N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 400 (2009). "Termination is both unnecessary and unwise" when a child is living with a relative "unless the relative wishes to adopt the child or is unwilling to provide long-term care." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 609 (1986); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 515 (2004) (Wallace, J., dissenting). Because C.P. retained his parental rights and has been reunited with his child, we conclude it is appropriate for the judge to consider again whether it is necessary that defendant's parental rights to that child should be terminated. As well-established, a natural parent has a constitutionally-protected right to the care, custody and control of her child, Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982), which should not be extinguished except in clear cases. We deem it appropriate in this case to allow reconsideration of defendant's parental rights to N.P. since it now may appear that permanency may be achieved notwithstanding termination.

In light of our disposition of defendant's parental rights to N.P., we will not burden the record with a discussion of that child's relationship with defendant.

The Division, in expressing its consent to vacating the judgment regarding defendant's parental rights to N.P., stated that it did not agree that this should include the vacation of the judgment terminating defendant's rights to J.T. "since that child has not been returned to the care of T.T. and permanency plans are underway for this child." The record, however, contains no information from which we might express a view on this point. Although we affirm insofar as the judgment relates to J.T., we do not see why the judge, upon an appropriate application, could not also reexamine whether the judgment terminating defendant's parental rights to J.T. might also be vacated if the circumstances are not dissimilar to those involving N.P.

(continued)

(continued)

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A-4254-08T4

RECORD IMPOUNDED

April 8, 2010