June 20, 2007
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF L.L., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, FN-12-58-05, FL-12-61-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2007
Before Judges Holston, Jr. and Grall.
Defendant, R.R., appeals the Family Part's October 20, 2004 order under Docket No. FN-12-58-05 entered after a factfinding hearing conducted on September 29, 2004 pursuant to N.J.S.A. 9:6-8.46(b). The court determined by a preponderance of evidence that R.R. abused or neglected her minor daughter, L.L. R.R. also appeals the Family Part's August 3, 2006 order under Docket No. FL-12-61-06 granting a Judgment of Kinship Legal Guardianship (KLG) of L.L. to V.L. and S.L., L.L.'s paternal grandparents.*fn1 We affirm both orders.
R.R. is the twenty-six year old mother of L.L., who was born March 9, 2001. The Division first became involved with R.R. in July 2001, as a result of a referral from L.L.'s paternal grandfather, shortly after R.R. came to New Jersey from Florida. The grandfather reported that R.R. had left the child in the grandparents' care because L.L. had become sick and needed medical treatment. R.R. did not return for her daughter for several weeks. The child suffers from asthma and allergies.
On February 7, 2004, the Division received a referral that R.R. left the child alone with friends and relatives and then disappeared. Ultimately, the Division learned that R.R. had been confined to Trenton State Psychiatric Hospital (Trenton Psychiatric) for twenty-one days.
On June 7, 2004, the Division received a referral from the Raritan Bay Mental Health Center (Raritan Bay), where R.R. brought L.L. due to a high fever and seizures. The referrer stated that R.R. was displaying inappropriate behavior and cursing at the staff. The child defecated on the floor and stepped in it. R.R. refused to clean it up and L.L. was throwing it around.
The Division's investigation revealed that R.R. had been hospitalized in February of that year at Raritan Bay after having been found lying face down in the snow. R.R. was transferred to Trenton Psychiatric because of depression, where Zoloft was prescribed. The referral added that R.R. was not compliant with her medication on the date of the June 7, 2004 incident. Based on the referral report, the Division placed a hospital hold on L.L. because of R.R.'s uncontrolled behavior and because she was homeless.
Several attempts to locate the residence of R.R. showed she did not stay at any one place on a continuing basis. L.L. was temporarily placed with a maternal aunt. However, after R.R. signed a six-month consent on June 10, 2004, L.L. was placed first with a paternal aunt and on July 9, 2004 with her paternal grandparents.
After the consent for placement expired, the Division sought and was granted by order dated July 9, 2004, care, custody and supervision of L.L. Placement remained with the paternal grandparents. The Division provided R.R. with parenting skills classes, therapy, a drug and alcohol evaluation, monthly bus passes and a security deposit. Supervised bi-weekly visitation was granted to R.R. However, her visitation was irregular, even though the Division was available to transport her and to provide her bus passes.
On July 9, 2004, R.R. had a psychological evaluation by Dr. Andrew Brown. Dr. Brown's clinical impression was that R.R. has symptoms of "depression, anxiety, stress and borderline personality [disorder]." R.R. struggles with psychiatric stability, which compromises her functional potential. Dr. Brown recommended R.R. be placed under psychiatric care, comply with medication management, and that she engage in individual counseling to resolve issues related to her family history, stress, and anxiety.
The Division investigated several placement options with R.R.'s family members including R.R.'s grandmother and maternal aunt but none were approved. Placement of L.L. with R.R.'s mother in Florida was investigated, but Florida officials would not approve the placement after an interstate investigation.
On August 27, 2004, R.R. had a psychiatric evaluation by Dr. James Ferretti. Dr. Ferretti opined that R.R. suffers from a psychotic disorder of unknown type. Although prescribed Risperdal and Zoloft when hospitalized, R.R. is non-compliant with medication and has virtually no insight into the fact that she suffers a psychiatric illness. Dr. Ferretti recommended that R.R. "be treated psychiatrically, based on appropriate psychiatric medication, [be] periodically evaluated and [only] if she shows she is capable of achieving stability and is psychiatrically able to assume the responsibility of parenting" should family reunification be considered.
On September 29, 2004, a factfinding hearing to determine whether L.L. was an abused and neglected child was held as required by N.J.S.A. 9:6-8.44 and N.J.S.A. 9:6-8.46. The court heard the testimony of the Division's caseworker assigned to L.L.'s case and the testimony of R.R. The court also considered the referral response reports from July 27, 2001, February 7, 2003, and June 7, 2004, and R.R.'s discharge summary from Trenton Psychiatric. The caseworker testified to the June 7, 2004 incident at Raritan Bay, R.R.'s previous hospitalization at Trenton Psychiatric, R.R.'s non-compliance at that time with the taking of medication, R.R.'s lack of housing stability, the Division's inability to confirm R.R.'s housing at any particular time, and L.L.'s continuing medical condition, which included continuing problems with seizures and kidney disease.
On October 20, 2004, the court, in an oral decision memorialized in an order of the same date, made a finding of neglect by a preponderance of evidence against R.R. The court detailed R.R.'s bizarre, erratic, and hostile behavior when she brought L.L. to the hospital on June 7, 2004 and her unwillingness to assist L.L. The court also recited R.R.'s lack of initial cooperation on her admission for depression to Trenton Psychiatric, including her resistance to medical treatment. The court stated:
When I looked to the discharge, it stated that she was instructed to comply with her medications and aftercare and follow up. There were issues on the discharge sheet that she was not being compliant with the medication. So, obviously, this was somewhat of a concern.
When the referral came into the Division, it stated that she was not compliant on her medications. That, coupled with the erratic hostile and the behavior of this defendant on that day gave the Division cause to believe that she was not on her medication and, therefore, the child was removed . . . due to her not only, apparently, not being compliant with medication, but the other issue that came out right at that time was that she did not have stable housing. She had nowhere to go with the child. And for those reasons, the child was removed.
The Court has to make a finding whether or not abuse or neglect has been shown. . . . When I look to Title 9 under neglect, a section of it states that, "Neglect of a child shall consist in any of the following acts: By anyone having custody or control of the child." And under Section B it states, "A failure to do or permit to be done any act necessary for the child's physical or moral well-being."
From this Court's perspective, the information that was given that she was not compliant with her medication and that she did not have stable housing, in fact, by a preponderance of the evidence satisfies abuse or neglect -- and neglect in this case, because she failed to do, failed to maintain consistent compliance with medication and housing in order for -- for the child's physical or moral well-being.
I find by a preponderance of evidence that the neglect has been proven to this Court and I will make a finding of neglect on this matter based on the testimony and each of the items that have gone into evidence, S-1 through S-4.
In January 2005, R.R.'s psychotherapy was terminated by Raritan Bay Mental Health Center for not keeping scheduled appointments. Later, therapy was re-started.
On August 8, 2005, R.R. had a psychological evaluation by Dr. Gordon. Dr. Gordon in his report indicated that R.R. was still being treated with antipsychotic medication, Abilify. Dr. Gordon, while recognizing that R.R. was "in a state of partial remission from a psychotic break," stated that she needed medication to function and without that medication, she might regress. He opined that R.R. needed to demonstrate the ability to parent, including nurturance and an ability to protect her child from harm. Additionally, R.R. needed stability in her own life. The doctor recommended that R.R. complete parenting skills classes and obtain a psychiatric report attesting to her being in a state of remission and capable of caring for a child. Dr. Gordon recommended that L.L. remain in the custody of her paternal grandparents as of that time.
On November 7, 2005, a permanency hearing was held pursuant to Rule 5:12-4(h). The court approved a plan of KLG with the paternal grandparents with whom the child had lived for the past sixteen months. The court determined that R.R. had not demonstrated stability for a sufficient length of time to enable L.L. to be safely returned to R.R.'s care. Termination of parental rights was not proposed because the paternal grandparents did not want to adopt and terminate the rights of the birth parents.
On December 19, 2005, Dr. Gordon conducted a bonding evaluation and found L.L. bonded to her paternal grandparents, stating that the paternal grandparents presented themselves well and could be expected to protect the child. His opinion was corroborated by observations made by the caseworker on visits to the grandparents' home.
At the February 15, 2006 compliance review hearing, R.R. did not appear. Later it was discovered that she had been admitted through Carrier Clinic to East Mountain Hospital for psychiatric treatment, but was discharged against medical advice after a week. R.R.'s bizarre behavior and inability to care for herself at the time of her admission were noted. Her history of medication noncompliance was also noted.
R.R. testified that during the months preceding the guardianship trial, she was admitted into East Mountain Hospital for a few days, but left on her own because she felt she did not have to be there. R.R. also stated that from March 9 to April 7, 2006, she was admitted to Trenton Psychiatric Hospital. Although she does not remember the reason, Jacqueline Cardona, the caseworker who testified at the KLG trial noted that R.R. was unconscious on the street and was found by police. She exhibited symptoms of visual and auditory hallucinations, and received a diagnosis of schizophrenia and alcohol abuse.
R.R.'s treatment plan addressed problems of physical aggression, auditory hallucinations, sexually inappropriate behavior, coping skills, noncompliance with aftercare, as well as physical health issues. She was discharged to her own apartment with a discharge status of improved and stable and was provided with a thirty day supply of Abilify.
On May 24, 2006, the court suspended R.R.'s visitation with L.L. based on non-compliance with services. The order provided that if R.R. later complies with services, supervised visitation would be reinstated.
On July 11, 2006, a contested hearing was held on the Division's application to award KLG to the paternal grandparents. Cardona testified to the history of L.L.'s placement in the Division's custody based on the above events and conceded that R.R. had finally obtained adequate housing and employment and was engaged in mental health treatment. However, Cardona remained concerned about R.R.'s consistency with medications and participation in rehabilitative services, since the hearing was only three months after R.R.'s last psychiatric hospitalization.
Cardona stated that the Division's plan is for L.L. to remain with her grandparents, where she has been for almost three of her four years. The Division recommended KLG to avoid termination of parental rights so L.L. can continue to have a bond with her mother and father.
The court rendered an oral decision granting the application and on August 3, 2006, entered an order granting KLG to L.L.'s paternal grandparents. In addressing the statutory test for granting KLG, the court noted that R.R.'s incapacity to care for L.L., was of a serious nature, over a period of more than two years. R.R.'s incapacity was mitigated only by a limited amount of recent compliance. During that time period, L.L. was bonding with her paternal grandparents who were caring for her. The court further found that given the seriousness of R.R.'s mental health condition, it was unlikely to change in the foreseeable future. The court reviewed the high quality of care that L.L. had received from her paternal grandparents and concluded that it would be in the best interest of L.L. to grant KLG to the grandparents. The court further found that the Division had exercised reasonable efforts to reunify L.L. with R.R. by providing parenting skills classes, mental health therapy referrals, a substance abuse evaluation, visitation and assistance with transportation and housing. Further, the court found that adoption was not feasible or likely because L.L. was bonded to caregivers who did not wish to adopt her. In granting the KLG application, the court noted that the order could be reviewed and vacated in the future if R.R. met the necessary requirements.
Defendant presents the following arguments for our consideration:
IN MAKING THE DECISION THAT R.R. NEGLECTED HER CHILD, THE TRIAL COURT FAILED TO APPLY THE PROPER STATUTORY STANDARD. EVEN IF SHE HAD APPLIED THE PROPER STANDARD, THE FINDINGS OF FACT WERE INSUFFICIENT TO SUPPORT A FINDING OF NEGLECT.
THERE WAS NO CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDINGS AND CONCLUSIONS OF THE COURT WITH RESPECT TO N.J.S.A. 3B:12A-6d (1), (2) and (4). FURTHER, THE COURT DID NOT CONSIDER N.J.S.A. 3B:12A-6(c) IN THE DECISION TO APPOINT A KINSHIP LEGAL GUARDIAN.
Defendant contends the court failed to apply the proper statutory standard in its determination at the factfinding hearing and that its findings of fact were insufficient to support a finding of neglect.
N.J.S.A. 9:6-8.46(b) states: "In a fact-finding hearing (1) any determination that the child is an abused or neglected child must be based on a preponderance of the evidence and (2) only competent, material and relevant evidence may be admitted." Rule 5:12-4(d) provides that the "Division . . . shall be permitted to submit into evidence, pursuant to [N.J.R.E. 803(c)(6) and N.J.R.E. 801(d)] reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." We are satisfied, therefore, that the referral response reports and discharge summary admitted into evidence, along with the case worker's testimony, constituted competent, reliable evidence, which the court properly considered in making its factfinding decision. See N.J.S.A. 9:6-8.50; N.J. DYFS v. J.Y., 352 N.J. Super. 245, 262-63 (App. Div. 2002).
Factual findings by a trial court will be upheld when they are supported by adequate, substantial, and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The judge's findings of fact should not be disturbed unless 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) (quoting Rova Farms, supra, 65 N.J. at 484).
A child is deemed "abused or neglected" if that child's "physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his [or her] parent or guardian . . . to exercise a minimum degree of care." N.J.S.A. 9:6-8.21(c)(4).
In this case, appellant's failure to meet a minimum standard of care, as found by the court, was her failure to comply with the medications that had been prescribed to her to address her very significant mental health problems, which were interfering with her ability to care for her child. The court noted in its decision that R.R. "was displaying bizarre behavior, erratic behavior, was hostile and not assisting the hospital with the child." The court detailed R.R.'s history of failing to cooperate with her psychiatric treatment and cited specifically her noncompliance with medications. The court found that compliance with prescribed medications was necessary for the child's well-being and accordingly ruled that failure to so comply constituted neglect.
The court relied on the definition of abuse or neglect of a child stated in N.J.S.A. 9:6-1 in making its factfinding decision. However, even if the court had used the definition set forth in N.J.S.A. 9:6-8.21 as urged by R.R., the court's finding would fit within that statutory definition.
We are satisfied that evidence of a child in the care of an inadequately treated parent suffering from serious mental health and behavior problems satisfies the statutory definition. It is not necessary that actual harm be sustained by the child only that the child is in imminent danger of becoming impaired. See Doe v. G.D., 146 N.J. Super. 419 (App. Div. 1976), aff'd, 74 N.J. 196 (1977). Placing the child at risk clearly falls below the minimum degree of care required, and satisfies the standard of neglect. We are satisfied, therefore, that the trial court decision finding neglect was supported by the preponderance of the credible evidence.
The standard for granting Kinship Legal Guardianship of a child is set forth at N.J.S.A. 3B:12A-6(d):
The court shall appoint the caregiver as a kinship legal guardian if, based upon clear and convincing evidence, the court finds that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) in cases in which the division is involved with the child as provided in subsection a. of section 8 of P.L. 2001, c.250 (C.30:4C-85), (a) the division exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and (b) adoption of the child is neither feasible nor likely; and
(4) awarding kinship legal guardianship is in the child's best interests.
Although the statutory standard for granting KLG is similar to that for terminating parental rights, KLG is a less drastic and less permanent remedy because it permits the parent, whose rights have not been terminated, to file a subsequent application to modify or vacate the guardianship.
The court found each of the statutory prongs to have been proven by clear and convincing evidence as noted in its oral decision. We are satisfied that the record supports the court's finding of R.R.'s inability to care for L.L. due to her own mental health and behavioral problems and her failure to follow through with necessary treatment to remediate those problems. Thus, the factual basis of the first two prongs was established. Although R.R. may have shown the initial signs of stabilization during the three months prior to the KLG hearing, after two years in placement, the court determined that L.L. should have the opportunity for permanency rather than waiting additional time to see whether R.R. would finally achieve consistent compliance with her psychiatric treatment.
The trial judge found that the third prong was satisfied because the Division exercised reasonable efforts to reunify the child with her mother by providing parenting skills classes, therapy, a substance abuse evaluation, bus passes, security deposits, and visitation. With reference to the feasibility of adoption, the trial court stated that adoption is neither feasible nor likely because "that's not what the current caregivers wish to do. They do not wish to terminate the rights of either parent."
The fourth prong was established by Dr. Gordon's bonding evaluation, in which he noted a strong bond between L.L. and her caregivers. After two years in their care, it would have been a very substantial trauma for this five-year-old child, suffering from a seizure disorder requiring extraordinary attention and care, to be removed to the custody of a parent still struggling to care for herself.
The paternal grandparents testified that they are willing to assume full legal responsibility for the care of L.L. until she reaches adulthood. They are in full support of both parents maintaining their bond and relationship with L.L. and will encourage visitation.
The Supreme Court has recognized that "particularly in those cases where the caregiver's own child or sibling is the parent, an alternative, permanent legal arrangement is available for children and their caregivers." N.J. DYFS v. P.P., 180 N.J. 494, 508 (2004). The record in this case shows that KLG will provide L.L. with a loving and permanent home. We are satisfied that the trial court's finding that KLG is in L.L.'s best interests because she will enjoy visitation with her biological parents and may benefit from the future possibility of reunification with her parents in the event R.R. and J.L. become able to provide her with a stable home is supported by adequate substantial credible evidence. Cesare, supra, 154 N.J. at 412.