NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.A.R.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2889-09T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

S.A.R.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF K.A.,

Minor.

_________________________________

March 3, 2011

Argued February 14, 2011 - Decided

Before Judges Lisa, Reisner, and Sabatino.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-66-09.

Carol M. Willner, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Ms. Willner, on the brief).

Jane S. Blank, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Blank, on the brief).

Caitlin McLaughlin, Designated Counsel, argued the cause for the minor K.A. (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).

PER CURIAM

Defendant S.A.R. appeals from a December 21, 2009 order terminating her parental rights to her son, K.A. We affirm, substantially for the reasons set forth in Judge John A. Conte's comprehensive written opinion filed on December 21, 2009.

I

These are the most pertinent facts. K.A. was born in February 2006. He suffers from autism spectrum disorder, global developmental delays and obesity. He first came to the attention of the Division of Youth and Family Services (DYFS) in the following way.

S.A.R. has an older child, T.A., who was physically abused by S.A.R.'s then boyfriend. T.A. was placed with his maternal grandparents under a kinship legal guardianship (KLG) arrangement. In 2007, S.A.R. sought to vacate the KLG order and regain custody of T.A. This led DYFS to investigate her living arrangements. DYFS workers found that S.A.R. was unemployed and living with a friend, and that K.A. was sleeping on a mat on the floor. The agency provided services to help S.A.R. care for K.A. However, in late August or early September 2007, S.A.R. dropped the child off at her parents' house and disappeared for over a week. When DYFS workers finally located S.A.R., she was unemployed, homeless and "living out of her truck." She admitted she could not care for K.A. As a result of the DYFS investigation, the agency arranged for K.A. to be legally placed with his grandmother. Over the next year, S.A.R. repeatedly refused to accept the services DYFS offered, including parenting classes, substance abuse evaluation and treatment, and anger management therapy. She also repeatedly failed to appear for scheduled visits with K.A. and avoided contact with the assigned DYFS worker.

The assigned worker, Josephine Robetto, described S.A.R.'s erratic behavior when they did have contact: "Her unpredictable behavior [included] having multiple fights at her parent's home, swearing at me, . . . screaming and swearing in front of the children as well. [She] [l]eft messages screaming at me, swearing." Another DYFS worker, Laurie Abbaleo, recounted an incident in which S.A.R. misrepresented where she was living, even going so far as to put a piece of paper with her name on it on the mailbox of a house at which she did not reside. The agency did not assist S.A.R. to obtain housing, because she repeatedly told her caseworker that she had housing.

According to Robetto, DYFS provided services to the grandparents to help them care for K.A. However, the agency ultimately concluded that the grandparents were unable to deal appropriately with K.A.'s developmental problems and his obesity. They overfed him, failed to take him for immunizations and necessary medical treatment, and left him in a chair in front of the television for hours at a time. Abbaleo confirmed her observation of those problems. She reported that, at two years old, K.A. weighed between fifty and fifty-five pounds. The grandparents told her "they had minimal interaction with the kid, and he just watched TV the majority of the day." Further, because they failed to take him for immunizations, he could not be enrolled in day care or specialized school programs.

K.A. was removed from the grandparents' care and placed with a foster family in February 2009. Although three foster placements did not work out, he was placed with a fourth foster family on April 3, 2009, and has been there ever since. According to Abbaleo, the child has thrived in his current foster home. He lost weight, "became more verbal . . . makes eye contact with people" and is "able to play and run around." He has begun to speak, and his temper tantrums have abated.

While his current foster parents cannot adopt him, they are committed to caring for him until DYFS finds an adoptive home for him. According to Abbaleo, the agency's permanency plan for K.A. is "select home adoption." She explained that after the child was "legally free for adoption" the agency would "then actively recruit for the child to locate an adoptive family that matches well . . . and will be able to meet the child's needs." She also explained that this matching process could not begin until parental rights were terminated and the child could be adopted. In Abbaleo's experience, she had been able to locate families for "many children with special needs . . . through this method."

Abbaleo also testified to her observation of visits between S.A.R. and K.A. and the difficulty S.A.R. had in dealing with the child's behavior. She overfed him and inappropriately used food to control his tantrums. S.A.R. also refused to accept that K.A. is autistic and had no appreciation for the fact that he would need special services on a long-term basis.

According to Abbaleo, after K.A. was placed in foster care, S.A.R. finally began cooperating with some services that DYFS offered to her. However, as of the trial, she still had not completed anger management therapy. Nor did she begin regularly attending scheduled visits with the child until February 2009.

The State presented expert testimony from Dr. Allison Strasser-Winston, a psychologist, who evaluated S.A.R. and her husband D.E.O.1 to determine their parenting capacity. She also performed a bonding evaluation between the child and S.A.R. Based on her psychological evaluation of S.A.R., Dr. Strasser-Winston found that she rated high on a scale measuring risk of child abuse. She also opined that S.A.R. was

not capable of providing [K.A.] with a safe and stable home environment. She has anger management issues. She tends to be distrustful of others . . . and probably wouldn't accept outsiders' help in dealing with her son. And he has significant developmental issues that require assistance, and she doesn't acknowledge the extent of those issues. . . . If she hasn't followed up with services for herself, I question if she would follow up with the services for her son.

During the bonding evaluation, Dr. Strasser-Winston found that S.A.R. "seemed to have a strong attachment to her son" and "he seemed happy to see her." However, she observed that S.A.R. overfed her son, forcing food on him when he wanted to play, and using food to calm him. She also would not let him explore the room on his own, but instead seemed to follow him everywhere. The expert explained that the ability to explore was important to a child his age, particularly in light of his developmental delays.

She opined that S.A.R. would not be able to recognize her son's special needs or respond to them. She expressed concern that, in light of her un-addressed anger management issues, S.A.R. would not react appropriately to the child's tantrums and his very limited ability to communicate. The expert also found that D.E.O. did not appreciate the extent of K.A.'s developmental disability and was not prepared to deal with it.

Dr. Strasser-Winston found K.A. was attached to his mother, but it was unclear whether K.A. viewed her as a parent or "just . . . as someone that he's seen several times in his life." She opined that the child would not be seriously or permanently harmed if he were separated from S.A.R., as long as "he was placed . . . with a care giver who was nurturing . . . and attentive to his needs."

S.A.R. presented testimony from Dr. Rachel Jewelewicz-Nelson, a psychologist, who evaluated S.A.R., her husband and her parents. Based on her evaluations, Dr. Jewelewicz-Nelson agreed that S.A.R. had anger management problems, because she tended to suppress her anger until "it sort of erupts periodically" and "she can potentially become hostile and combative." S.A.R. also tended to be "rigid" and "somewhat immature." Although the expert did not find S.A.R. to be at risk for committing child abuse, she testified that S.A.R. did not have an "accurate sense" of normal child development and what could reasonably be expected of a child at different ages. The expert believed that some of S.A.R.'s apparent deficits in parenting ability were actually due to "cultural and linguistic issues" and not real problems in her parenting ability.

Dr. Jewelewicz-Nelson also opined that S.A.R. and K.A. had a "relatively secure bond." However, she also noted that when it was time to leave the bonding session, K.A. seemed much more concerned with having to give up the toys in her office than with being separated from S.A.R. She further opined that although S.A.R.'s parents did not really understand K.A.'s limitations, they were loving and had a bond with him.

Dr. Jewelewicz-Nelson concluded that K.A. would be best served by being returned to his mother and being raised in an extended family that included S.A.R.'s husband and her parents. She recommended that the entire family receive training in how to deal with K.A.'s disabilities. When asked about S.A.R.'s past failure to cooperate with services DYFS had offered, the doctor acknowledged that S.A.R. told her she felt she did not need those services "because her parents would get the child, and then she would just continue to have a relationship with him." The expert also acknowledged a wide variety of other weaknesses in her opinions, including problems between S.A.R. and her parents which would make an extended family "potentially . . . a stressful support system."

The expert admitted that in terms of prioritizing the needs for K.A.'s placement, she would "place addressing the developmental delays and behavioral needs and autism and that whole spectrum at the top of the list." She further acknowledged that if his family did not understand the child's special needs and continued "to minimize" those needs, the "child would be at risk if placed in their care."

In a forty-six page opinion, Judge Conte addressed all four prongs of the best interests test. N.J.S.A. 30:4C-15.1(a). He found that S.A.R. lacks the capacity to care for K.A., in light of his special needs, including obesity and his "moderate to severe mental retardation and comprehensive developmental delays that are diagnosed as on the autism spectrum." He credited the testimony of the DYFS caseworkers that both S.A.R. and her parents demonstrated an inability or unwillingness to properly care for the child, amounting to neglect of his medical needs. The judge also found that S.A.R. "displays a remarkable incapacity to appropriately parent K.A. that is most disturbingly manifested as a refusal to accept his developmental delays." Because they did not know how to cope with his autism, she and her parents overfed him and left him sitting in front of the television all day, causing his obesity to worsen.

The judge credited testimony from the DYFS workers that S.A.R. had "for the most part, refused to comply with the Division's reunification plan" by failing to cooperate with any of the services offered to her. She also evaded DYFS workers and lied to them about where she lived. The judge found that by refusing to accept her son's diagnosis and failing to cooperate with DYFS, S.A.R. defeated the agency's efforts at reunification and displayed her "unwillingness to eliminate the harm facing the child."

In addition to finding that S.A.R. and her parents had caused harm to the child, and continued to be unable to properly care for him, the judge found that the agency had made reasonable efforts to provide services. He also reviewed the agency's extensive, but unsuccessful, efforts to locate relatives willing and able to care for K.A.

He further found that the child's condition had greatly improved in foster care and that the current foster parents were committed to caring for the child until DYFS found an adoptive home for him. The judge found that both sides' experts "acknowledge [S.A.R.] cannot care for K.A.'s special needs." Therefore, the child would be endangered if returned to her custody.

Addressing the issue of whether termination of parental rights would do more harm than good, the judge found the State's expert more credible than S.A.R.'s expert on the issues of bonding and the effect on the child of termination of parental rights. He also found that the child was likely to be adopted if S.A.R.'s parental rights were terminated. In finding that the State satisfied the fourth prong, the judge concluded:

Taking into account on one hand the low to moderate harm that K.A. will experience by being removed from his biological parents, the harm he will experience by being removed from his current foster placement, and the low risk that he will not be adopted soon [,] it is apparent that termination will not do more harm than good. The evidence demonstrates that the boy's overall condition has strongly improved and will continue to do so in the future. The setbacks to his improved condition caused by termination and a new placement will only be temporary whereas the harm that will come to K.A. should he be returned to his mother is certain and will be long lasting.

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 so long as "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)). We owe special deference 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 & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), (quoting Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).

Guardianship actions implicate the parents' constitutional rights, as recognized under both the federal and New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & 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." E.P., supra, 196 N.J. at 102.

In striking a balance between the parents' constitutional rights and the children's fundamental needs, courts engage in the four-part guardianship test articulated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1a:

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 [discrete] 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 & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).

On this appeal, S.A.R. contends that the State failed to prove all four prongs of the best interests test. Those factors were comprehensively addressed in Judge Conte's opinion, which concluded that the State met its burden. Except to the extent addressed below, we conclude that S.A.R.'s appellate arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

S.A.R. contends that DYFS did not satisfy the fourth prong - proving that termination would not do more harm than good - because DYFS has not yet identified an available adoptive home for K.A. On this record, we cannot agree with her argument.

The absence of an immediate permanent placement is not always a bar to termination under the fourth prong. Because some potential adoptive parents will not consider a child who is not yet legally available for adoption, in some cases it is necessary to terminate parental rights before DYFS can identify an adoptive home. That may be particularly important when a child has significant disabilities.

Naturally, there will be circumstances when the termination of parental rights must precede the permanency plan. A multiply-handicapped child or a young adolescent might not be adoptable at the time of the termination proceedings.

[A.W., supra, 103 N.J. at 611.]

As described in Abbaleo's testimony, the agency may proceed through "select home adoption" once parental rights are terminated. See E.P., supra, 196 N.J. at 98.

However, the State must present evidence that the child would be "adoptable" if parental rights are terminated:

In this case, we believe that the Division presented a clear and convincing case under N.J.S.A. 30:4C-15(c) that the health and development of the minor children have been substantially impaired; that there was no showing that the parents would be able to eliminate the potential for harm to their children in the near future; that the agency had considered alternatives to termination during the period between 1978 and 1984 and that there was a showing that the children were still adoptable and capable of a permanent placement. That evidence would have sustained a judgment of termination.

[A.W., supra, 103 N.J. at 616 (emphasis added).]

In this case, Judge Conte credited Abbaleo's testimony that, once K.A. is legally available for adoption, the agency is likely to be able to find an adoptive home for him. Moreover, for the past two years, K.A. has been living with a foster family that deals well with his special needs and is committed to keeping him until DYFS finds an adoptive home for him. Finally, S.A.R. is not able to properly care for the child, and on this record there is no likelihood that she will ever be able to do so. Under these circumstances, the State carried its burden to prove that termination of her parental rights will not do more harm than good. See A.W., supra, 103 N.J. at 616.

Affirmed.

1 By the time of the trial, S.A.R. and D.E.O. were married.