DIVISION OF YOUTH AND FAMILY SERVICES v. M.S IN THE MATTER OF THE GUARDIANSHIP OF R.H., Jr

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4828-09T2

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

vs.

M.S.,

Defendant-Appellant.

__________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.H., Jr.,

A Minor.

__________________________________

December 30, 2011

Submitted: November 30, 2011 - Decided:

Before Judges Cuff and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Hudson County, Docket No. FG-09-71-08.

Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ann Avram Huber, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minor R.H., Jr. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).

PER CURIAM

In this appeal, we review an order terminating the parental rights of M.S.1 to her twelve-year-old son, Robert.2 Contrary to M.S.'s arguments, we hold that there was sufficient, credible evidence to establish each of the statutory elements required to permit termination of parental rights. We also hold that the trial judge did not impermissibly limit the scope of the remand ordered by this court, and the original law guardian properly sought to be relieved and the newly-appointed law guardian acted properly in representing the child's best interests. Accordingly, we affirm the June 26, 2008 order terminating M.S.'s parental rights to Robert.

The New Jersey Division of Youth and Family Services (the Division) filed a complaint seeking the termination of the parental rights of M.S. to her sons, Robert and P.S., on September 19, 2007. At that time, Robert was almost nine years old and P.S. was fifteen.3 The complaint was the culmination of the Division's involvement with the family, which began on March 12, 1996.

Judge Mark Nelson tried the case over five days in June 2008. In his June 26, 2008 opinion, Judge Nelson found that M.S. had engaged "in numerous incidents of anti-social behavior." These incidents included two arrests and periods of incarceration on a drug distribution charge (2004), receiving stolen property (2006), and fraudulent use of a credit card (2007). In addition, the judge found that M.S. had experienced episodes of homelessness or unstable housing arrangements. Judge Nelson found these circumstances were influenced not only by a personality disorder with prominent anti-social, paranoid and borderline features, causing the Division to remove Robert and his brother on three occasions between 2004 and 2007, but also promised to lead to continued instability in the future, and constituted harm to Robert.

Judge Nelson also found that the personality disorder will continue to prevent M.S. from providing the stability Robert requires and that reunification was neither appropriate now nor in the foreseeable future. The judge found that M.S. has a "poor sense of personal identification and poor sense of judgment . . . ." He also found that M.S. has "extraordinary little appreciation of the impact that her repeated arrests and incarcerations have had on her two sons and the effects of the prior removals on her sons."

The judge also found that the evidence submitted by the Division supported the opinion of psychologist, Dr. Elizabeth M. Smith. She opined that M.S. had made little, if any, progress through years of involvement with the Division and lacked the insight to know what was necessary to provide a safe and stable home for her children. The judge also found that M.S. is unable to distinguish her needs from the needs of her children. As such, M.S. is unable to recognize that Robert's Attention Deficit Hyperactivity Disorder (ADHD) diagnosis requires a structured plan that she must follow.

Judge Nelson recognized that Robert is emotionally bonded to his mother, and termination will cause him emotional harm. On the other hand, Judge Nelson found that any reunification would surely fail, and that failure would be emotionally devastating to Robert. In the end, the judge accepted the opinions of Drs. Frank J. Dyer and Smith that "[M.S.] has continued to harm [Robert] and continues to harm him by her behavior, such as, the numerous removals, numerous arrests, her outbursts and lack of stable housing." He also accepted the opinion of Dr. Dyer that supportive adoptive parents, who appreciated Robert's distress, could mitigate the harm caused by severance of the parental bond.

Judge Nelson also found that the Division provided diligent efforts to help M.S. overcome the circumstances that required repeated removals of Robert from her care. The services provided to M.S. by the Division included substance abuse evaluations and offers of counseling, psychological evaluations and repeated parenting skills classes, rental assistance and other efforts to permit her to maintain stable housing. In fact, Judge Nelson characterized the Division's efforts to reconcile the family as "extraordinary." Yet, the judge also found that "the Division has provided twelve years of reasonable efforts to [M.S.]. [M.S.] has simply failed on numerous occasions to engage and/or comply with services."

In addition, Judge Nelson found that the Division evaluated and considered several persons suggested by M.S. as potential caregivers for Robert. The Division pursued Kinship Legal Guardianship with the foster parents, but they ultimately rejected this path because of interference by M.S. Rather, the foster family informed the Division they wished to adopt Robert. Thus, the judge found that after the provision of extraordinary services to permit restoration of the family unit, M.S.'s behavior or failure to engage in the services provided ultimately rendered termination of her parental rights the only "reasonable, realistic alternative[]."

Finally, Judge Nelson found that termination of M.S.'s parental rights to Robert would not do more harm than good. In doing so, he recognized that Robert had a very strong attachment to his mother and would suffer emotional harm by the severance of the parental relationship. However, he accepted the opinions of Drs. Dyer and Smith that the risks of returning him to his mother's care outweighed the negative effects of termination of the parental relationship. The judge also accepted the doctors' opinions that Robert's special needs required "structure in his life and stability," and "[a] future removal or disruption in his life would be extremely harmful to [him.]" The judge also found that Robert simply "needs the opportunity to just be a child. He needs the opportunity to go to school, make friends and engage in activities that most 8 year olds engage in. He does not need removals/disruptions in his life. . . . [Robert] suffers from disabilities and special needs that the parent is simply incapable of addressing. This child is entitled to permanency and permanency would be in the best interests of this child."

M.S. filed a notice of appeal. Pending appeal, the designated adoptive parents, the C's, decided they did not want to adopt Robert; therefore, the Division placed the child with a new foster family, the D's. This court remanded the matter to the trial judge to determine whether this change of permanent placement required reconsideration of the decision to terminate the mother's parental rights. Our order provided as follows:

We grant the motion and remand for reconsideration of the judgment in light of the fact that the child no longer resides in the adoptive home. The trial court, in his or her discretion, may conduct such additional proceedings as may be required.

On remand, four witnesses testified: the caseworker; Drs. Dyer and Smith; and Dr. Richard Klein, a psychologist for M.S. At the conclusion of the remand hearing, Judge Nelson issued an oral decision in which he held that the change in prospective adoptive parents did not alter his initial finding that termination of parental rights would not do more harm than good.

In his oral opinion, Judge Nelson found that the prospective adoptive parents, the C's, with whom Robert lived at the time of the 2008 trial, wavered about their decision to adopt Robert after the conclusion of the trial and eventually determined that they were not prepared to proceed with adoption. The Division removed Robert and placed him with another foster family, the D's. He also found that the D's initially made no commitment to adopt Robert. The judge found this a reasonable course due to Robert's age, his special educational needs and his prior documented behavioral problems. However, the D's eventually decided to adopt Robert. As to Robert's adjustment with the D family and their decision to adopt him, the judge stated:

He's in that home and he's thriving. He's doing very well by all accounts, by all three experts, he's happy there. By all three experts' accounts, he's off his medication, he's involved -- he's lost weight. Not that losing weight is everything but I think the losing weight is more telling than just that he -- he read a book and he went on a diet and he lost weight.

He's happy, he's involved in football, he seems to have more self respect. He's pleased, he's involved in the home so all of that tells me something so based upon all that, a reasonable person and a reasonable foster parent could come to the conclusion that this is working out great, I now want to adopt the child and that seems to be the testimony . . . and I accept that testimony.

Recognizing that his February 2, 2010 findings might be construed as inconsistent with his initial findings, Judge Nelson expanded on the reasons supporting his initial findings and reflected on the developments following Robert's new placement. The judge stated that the testimony provided by Mr. C at trial raised some concerns about placement with the C family. The judge cited Mr. C's reference to his adult sons as persons who would help care for Robert. Nevertheless, he also stated that

I was more confident when I made my decision at the end of trial that the C family was -- placement and adoption with the C family was much more appropriate for this child and was in the child's best interests than being returned to his mother or doing something else with his mother . . . with her past history and non[-]compliance and disruptive behavior . . . .

The judge also acknowledged that the disruption of the placement with the C family caused concern. However, he found that the evidence clearly supported the finding that Robert was thriving in his new placement. The judge also acknowledged that M.S.'s older son, P.S., greatly influenced Robert and he had endorsed Robert's continuing placement with the D family. Judge Nelson found the following statement by Dr. Smith credible and persuasive:

[B]y all accounts Robert has made a wonderful adjustment to his new foster parents and very much wants to be adopted by them. Whether he uses the word adopted, whether he said he wanted to stay there forever, whether he said he wanted to stay there until he's eighteen, those words are fairly synonymous to me. I think most kids think forever is living with your family is to eighteen anyway. . . .

For their part, [the Ds]. have provided structure and are very sensitive to his special needs. He has made wonderful progress there including being able to function well without psychiatric medication. Contributing to this may also be [Robert's older brother's] report of comfort with [the Ds] and his trust in their ability to be good parents to Robert.

After reviewing the testimony of the psychologist offered by M.S. and the notes maintained by Robert's therapist, both of whom remarked on the progress made by Robert, and the psychologist's supposition that the progress was probably attributable to the positive attitude of the D family to Robert and his older brother, Judge Nelson stated that "[a]ll of that leads me to believe that . . . I don't think [this placement is] as good as the former placement, I think it's better than the former placement." Therefore, the judge found the current placement reinforced his prior findings and conclusion that termination will not cause more harm than good.

M.S. contends that the Division failed to adduce sufficient, credible evidence to support the judge's findings that her parental rights should be terminated. She argues that the trial judge ignored changed circumstances concerning her progress and the change of residential placement for Robert since entry of the 2008 order terminating her parental rights. She also contends that the trial judge misconstrued the remand order and improperly limited consideration to the transfer of Robert from the C family to the D family. We address the latter issue first.

The remand order entered by this court directed the trial judge to "conduct such additional proceedings as may be required" to address the issue that necessitated further consideration of his prior order. The order cannot be considered in a vacuum. The order was the product of the change in residential custody from the C family to the D family occasioned by the decision of the C family not to adopt Robert. As related in Judge Nelson's June 26, 2008 opinion, the permanency offered to Robert by the decision of the C family to adopt Robert heavily influenced his initial decision. This change and his placement with a new resource family warranted re-examination of one of the predicates for termination of M.S.'s parental rights. Judge Nelson did not mistakenly exercise his discretion by limiting the scope of the remand. Moreover, his supplemental opinion reflects his awareness of the purported progress of M.S. during the time between the conclusion of the trial and the remand proceeding.

The primary argument advanced by M.S. about the sufficiency of the evidence invokes not only the law governing termination of parental rights but our standard of review. A mother's right to parent her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citations omitted). However, that right is not absolute and must yield to protect a child's welfare. N.J. Div. Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted). N.J.S.A. 30:4C-15.1 codified the standards the Supreme Court established in A.W. The Division must establish 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. 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.

[N.J.S.A. 30:4C-15.1a(1)-(4).]

See also N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 506 (2004); A.W., supra, 103 N.J. at 604-11.

An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The appellate court reviews the record to determine whether the findings are supported by substantial, credible evidence in the record. Id. at 411-12; Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also should accord considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the facts are supported by the evidence, the appellate court should not disturb those findings. Rova Farms, supra, 65 N.J. at 484. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. 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." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiando v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

We have thoroughly reviewed the record compiled in this case and conclude that the Division adduced sufficient evidence to permit the trial judge to find by clear and convincing evidence that the parental rights of M.S. must be terminated. We are also satisfied that the findings of fact, informed as those findings must be by the credibility determinations made by Judge Nelson of the Division caseworkers, and the experts, Drs. Dyer, Smith, and Klein, produced by the Division, the law guardian and M.S., respectively, are well-supported by the record. We, therefore, affirm substantially for the reasons expressed by Judge Nelson in his June 26, 2008 written opinion and his February 2, 2010 oral opinion. We add the following brief comments.

M.S. has chosen to address in isolation each of the circumstances that lead to the removal of her children. By focusing on her arrest record, then her housing instability, then her mental health concerns and the various behaviors associated with her condition, it appears M.S. is trying to minimize the depth and breadth of the reasons that caused the removal of her children from her care. However, when the record is viewed in its entirety, a pattern emerges. The record reveals a prolonged period of dysfunction that has interfered with her ability to care for Robert and precludes reunification. For eleven years, from September 1998 through November 2009, psychologists have rendered a consistent diagnosis and a consistent prognosis. Each psychologist has found that M.S. suffers from a personality disorder that interferes with her ability to provide a stable and supportive environment for Robert. Each opined that she was not capable of caring for her children at that time. In short, for over eleven years and multiple interventions and offers of help to address and remediate the circumstances that led to the removal of her children, nothing has changed. M.S. remains unable to be an effective parent to Robert now or in the near future.

Moreover, the record adduced on remand underscores Judge Nelson's initial decision to terminate parental rights. The Judge found that the change of residential placement actually enhanced rather than undermined his decision that termination of parental rights was the appropriate course for Robert.

Finally, M.S.'s contention that the judgment is flawed because the law guardian did not advocate for the best interests of Robert is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

1 The child's father, R.H., died in 2001.

2 We have elected to use a pseudonym in place of initials.

3 On the first day of trial, the court granted the Division's motion to dismiss the complaint as to P.S.