OF YOUTH AND FAMILY SERVICES v. I.N.M. IN THE MATTER OF THE GUARDIANSHIP OF R.R.M. AND K.N.S Minors

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5835-09T3

NEW JERSEY DIVISION OF

YOUTH AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

I.N.M.,

Defendant-Appellant.

_________________________________

IN THE MATTER OF THE GUARDIANSHIP

OF R.R.M. AND K.N.S.,

Minors.

__________________________________

October 27, 2011

Submitted October 17, 2011 - Decided

Before Judges Sabatino, Ashrafi and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-236-09.

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

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

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Olivia Belfatto Crisp, Assistant Deputy Public Defender, on the brief).

PER CURIAM

Defendant I.N.M. (I.M.) appeals from a June 24, 2010 order terminating her parental rights to two of her biological children, now ages five and four.1 She argues that the judge erred by terminating her rights because the New Jersey Division of Youth and Family Services (the Division) failed to establish by clear and convincing evidence each prong of the best interests of the child standard, N.J.S.A. 30:4C-15.1(a). We disagree and affirm.

The Division has been involved in I.M.'s life since she was a teenager. At age fifteen, the Division removed I.M. from her home because I.M.'s mother was selling drugs. At that time, I.M. admitted that she used marijuana at age twelve and drank beer daily at age fourteen. Over the next few years, I.M. gave birth to R.R.M. and K.N.S., used drugs, and failed to maintain adequate housing.

The Division received several referrals from the University of Medicine and Dentistry of New Jersey (UMDNJ) that I.M. failed

to administer R.R.M.'s medicine, which resulted in numerous hospitalizations. The Division then placed I.M. and her children into a family home, but that placement failed because I.M. displayed an "attitude problem." As a result, I.M. and her children began living in various shelters.

In April 2008, the Division received a referral that I.M. had been locked out of a transitional housing facility for homeless families and had been seen walking the streets in the middle of the night while she was under the influence. The Division investigated, substantiated the allegations of neglect, and entered into various case plans with I.M. in which she agreed to comply with the rules imposed by her shelter. I.M. then lived in several shelters between April and May 2008. The shelters eventually terminated I.M. as a resident because she disobeyed the rules.

In May 2008, the Division received another referral from UMDNJ that I.M. did not administer medicine properly to R.R.M. During the course of the Division's investigation, I.M. admitted that she did not use his asthma nebulizer because roaches were stuck in it. The Division learned that I.M. and her children had returned to live with I.M.'s homeless mother who had been sharing an apartment with a friend. A caseworker visited the apartment, learned that there were several people standing outside the residence with money in their hands, and noticed that the apartment next door had just been raided. I.M. did not see any problem with these living conditions.

I.M. reluctantly returned to a shelter with the caseworker. Two days later the Division located I.M. and her children at a different shelter. In May 2008, the Division filed a complaint and order to show cause (OTSC) seeking custody of the children. The court approved the removal of the children from I.M.'s care because "continuation in the [shelter] would be contrary to the welfare of the children." I.M. tested positive for marijuana on the return date of the OTSC. The children were then placed in a foster home together. Two weeks before the guardianship trial, the children were placed in a new foster home. The current foster parents wish to adopt.

The court ordered I.M. to obtain substance abuse treatment and to attend parenting skills classes. She began drug treatment at New Directions in August of 2008, but that program terminated her due to lack of attendance and resistance to treatment. The Division referred her to intensive outpatient treatment at the Gateway to Freedom, but that program also terminated her due to poor attendance, confrontational attitudes, and lack of participation in groups. Her next drug treatment provider, Family Connections, terminated her for lack

of attendance, too. I.M. attended parenting classes at Reunity House sporadically, but had difficulty "managing her children without a lot of supervision."

In May 2009, the court approved a plan of termination of parental rights followed by adoption. In June 2009, the Division filed its guardianship complaint and continued to provide services to I.M. and the children.2 The Division considered placement of R.R.M. and K.N.S. with several family members, but ruled them out because of their prior involvement with the Division, poor health, involvement with the legal system, poor housing, or lack of interest.

In September 2009, Dr. Jason Fleming, a forensic psychologist, performed a bonding evaluation between I.M. and her two children. I.M. appeared disheveled, sucked her thumb, denied any marijuana problem, and refused to admit that she had been removed from her mother's care as a teenager. Dr. Fleming opined that I.M. was an emotionally and intellectually vulnerable young woman and poorly equipped to parent. He determined that placement of the children in I.M.'s care would subject them to significant risk and concluded that I.M. was unable to be an independent caregiver for her children.

In January 2010, Eric Kirschner, a forensic psychologist, conducted a psychological evaluation of I.M. and a bonding evaluation with her and her children. He determined that I.M. read at a first-grade level, possessed a limited cognitive ability, and tested at the mental retardation level. Dr. Kirschner opined that returning the children to I.M. would expose them to a heightened risk of harm, and that terminating I.M.'s parental rights would be in the best interests of the children.

Judge Margaret Hayden conducted a three-day trial on nonconsecutive dates in May and June 2010. The Division called two caseworkers, one adoption supervisor, and Dr. Fleming. Dr. Kirschner testified on behalf of the law guardian. The judge found all these witnesses "to be very credible." Defendant attended the first day of trial, did not testify, and failed to appear on the other two dates. I.M. produced no expert or fact witness.

In rendering her decision, Judge Hayden correctly employed the four-prong test contained 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 N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).]

Judge Hayden determined that there was clear and convincing evidence to meet the first prong because "[t]he credible evidence shows that [I.M.] lacks the capacity to parent her children due to her significant psychological deficits, bad judgment, poor impulse control and limited frustration tolerance." Judge Hayden found that I.M's incapacity to parent, which "[led] to her children's removal in 2008[,] has not decreased in the past few years." Here, the experts agreed that I.M.'s "prognosis for parenting was poor due to the multiplicity of her problems which put the children at significant risk of harm in her care." Thus, Judge Hayden concluded that the safety, health and development of the children had been and would continue to be endangered by the parental relationship with I.M.

The judge found that there was clear and convincing evidence to meet the second prong. I.M. failed to attend and complete drug treatment, attend visitation consistently, and complete parenting skills classes. Judge Hayden stated:

These two children have lingered in foster care long enough waiting for their parents to create a safe and stable living environment. According to the undisputed testimony of the experts[, I.M.] does not have the psychological capacity to see that she needs to make any changes to her parenting despite the fact that she does not have custody of her children. To allow a person functioning at the level of an eight-year-old child to have custody of two young children would be to put the children at a significant risk of harm. No evidence before the court suggests that [I.M.] can or will make the changes necessary to have the capacity to be a minimally adequate parent.

As for the third prong, Judge Hayden found that the Division had made reasonable efforts to provide services to help I.M. correct the circumstances that led to the children's placement outside the home. Judge Hayden stated that the Division provided "visitation, parenting classes, substance abuse evaluations and treatment, [a] GED referral, and psychological and psychiatric evaluations." The Division also ruled out placement of the children with relatives and has begun a select home adoption process. The judge stated that:

In May 2010[, shortly before the trial,] a family was identified and the children have been placed in this adoptive home. No other option has been suggested that will provide these children with the permanency and stability they so desperately need and deserve.

In finding that the fourth prong was also met, Judge Hayden concluded that termination of parental rights would not do more harm than good. Dr. Kirschner testified that the children have not bonded with I.M. and would not suffer any harm from the termination of I.M.'s parental rights. Dr. Fleming also found no bond between the children and I.M. A bonding evaluation was not performed with the foster parents because the children were placed in their current home two weeks before the trial commenced. Under the circumstances of this case, we agree with Judge Hayden that there was the need to secure stability without undue delay. Cf. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009) ("[W]e can envision very few scenarios in which comparative evaluations would not be required."). The children's compelling need for permanency, see, e.g., N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004), supported the conclusion required by the fourth prong. In re Guardianship of D.M.H., 161 N.J. 365, 386 (1999).

Our standard of review is limited. In re 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 the competent, relevant and reasonably credible evidence as to offend the interests of justice." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (instructing that trial court findings are to receive deference unless "so wide of the mark that the judge was clearly mistaken"). Here, the judge s findings are supported by adequate, substantial and credible evidence.

For these reasons and others more fully described in Judge Hayden's well-written decision dated June 24, 2010, with which we substantially agree, we affirm the judgment under review.

1 Her son R.R.M. was born in September 2006; and her daughter K.N.S. was born in January 2007. The biological father is not involved in this appeal. He defaulted and failed to appear at the guardianship trial.

2 In July 2009, I.M. gave birth to another son, A.M. The Division placed A.M. in a foster home and he is not involved in this appeal.