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New Jersey Division of Youth and Family Services v. E.P.A.


October 15, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, FG-07-268-05.

Per curiam.



Submitted September 11, 2007

Before Judges Payne and Messano.

E.P.A., the natural mother of a five-year-old daughter, E.A. (fictitiously, Edie), appeals from an order of a judge of the Family Part terminating her parental rights to the child following a contested four-day hearing. D.A., the natural father of the child and husband of E.P.A., has not appealed.

On appeal, the mother concedes that the trial judge addressed each of the interrelated statutory prongs of N.J.S.A. 30:4C-15.1 that govern the matter,*fn1 but she contends that the judge's findings of fact and conclusions of law were manifestly unsupported by and inconsistent with the competent, relevant and reasonably credible evidence, and thus that reversal is required. In a broad-based challenge to the court's ruling, the mother raises the following arguments: (1) the court's determination of lack of parental fitness was inconsistent with the fact that she had been permitted to retain custody of a later-born son; (2) she had complied with the requirements of DYFS and resolved concerns regarding her parenting by the time of a court hearing on September 20, 2004, but reunification did not occur; (3) thereafter, a changing, new and unnecessary array of requirements were imposed in a fashion that unreasonably served to prevent reunification; and (4) the decision by the Division of Youth and Family Services (DFYS) to seek termination was inconsistent with the opinions of its own experts and of social service workers. Following a review of the record and arguments of counsel in light of governing law, we affirm.

The record discloses that Edie was born on June 12, 2001. Both she and her mother tested positive for cocaine, methadone and opiates at the time of birth. Prior to the birth of Edie, E.P.A. had given birth to three other children. In 1990, she gave birth to her first child at the age of sixteen; to a second, premature, child in 1991 who died after nine days; and to her third child in 1998. Before Edie's birth, the two older children had been placed with a maternal grandmother, and upon the grandmother's death, with a maternal aunt and great-aunt, after repeated verified reports of neglect, homelessness, penury, and drug use by E.P.A. On February 15, 2002, eight months after Edie's birth, E.P.A. entered into a voluntary identified surrender of her parental rights to the two older children, and they have been adopted by relatives. A son, born on October 11, 2002, remains in E.P.A.'s custody.

E.P.A. herself had experienced a troubled youth while living at home with an alcoholic mother and incorrigible brothers, one of whom was eventually murdered. In 1986, E.P.A. took an overdose of pills following a fight with her mother. In 1988, when E.P.A. was almost fourteen, her mother requested her removal from the home because of behavioral problems. By 1989, when E.P.A. was fifteen, her school had reported to DYFS that E.P.A. was a suspected drug user. She dropped out of school while in the ninth grade, and has not returned.

E.P.A.'s use of drugs continued, and she identified marijuana, and later, heroin, as her habitual drugs of choice, with occasional use of cocaine and alcohol. Multiple opportunities for drug treatment were rejected. In 2000, E.P.A. completed a drug treatment program at Turning Point, but relapsed on the day after her graduation. She then entered a methadone program, but did not follow through with its services. In September 2001, after the birth of Edie, E.P.A. was again enrolled in a methadone-maintenance program administered by the Essex Substance Abuse Treatment Center. Although she has remained largely drug-free thereafter, she tested positive for opiates and benzocaine on December 13, 2002 and January 2, 2003. E.P.A. has contested an additional test that was positive for heroin, occurring on March 4, 2003, and claimed that she ceased drug use in November 2001. At the time of her son's birth on October 11, 2002, E.P.A. tested positive only for methadone, and in a letter dated June 25, 2003, the Essex Treatment Center stated that E.P.A. had refrained from drug use, except methadone, for seventeen months.

Although the court sought a decrease in and eventual cessation of E.P.A.'s use of methadone, there is little evidence that E.P.A. has achieved that goal, except for one reference in a January 6, 2006 case management order to a drug test conducted on November 18, 2005, which was negative for that substance. Additionally, a December 15, 2005 drug test was negative for methadone, although E.P.A. stated to the test administrator that she was using methadone at the time. No clear evidence exists in the record as to whether E.P.A. remained on methadone maintenance at the time of trial. However, psychologist Leslie Williams noted in his February 2006 report, two months before trial, E.P.A.'s statement that she remained on methadone and went to the Essex Substance Abuse Treatment Center twice a week to procure it.

Edie's father, D.A., tested positive for cocaine in September 2005, and he was terminated from the Essex Substance Abuse program upon incarceration in December 2005.

In addition to her drug addiction, E.P.A. has had criminal involvement. Although the record is not entirely clear, it appears that E.P.A. has a history of five arrests, three indictable convictions,*fn2 and two violations of probation. Her convictions include one, in 1995, for third-degree distribution of CDS in a school zone and a conviction, in 1998, on a charge of first-degree robbery. She has spent more than one year in jail and state prison. Open warrants for the arrest of E.P.A. as the result of violations of probation on the robbery charge and the CDS offense remained unresolved until April 2005. A 2001 charge of simple assault was resolved on December 23, 2004. Additionally, open warrants remained for a lengthy period for the arrest of Edie's father, D.A., on charges of criminal trespass, panhandling, and possession and distribution of a hypodermic needle.*fn3 Fingerprinting of E.P.A. and D.A., initially sought on November 17, 2004 and then on January 19, 2005, still had not been completed by the parents on March 30, 2005.

At the time of Edie's birth in 2001, E.P.A. was living with D.A. at a "welfare hotel" in Newark, where the child was born without medical assistance. Neither E.P.A. nor D.A. was employed, neither had permanent housing, and D.A., like E.P.A., was drug-addicted. In late October 2002, housing was approved for the family, and they remained in the same apartment at time of trial, receiving temporary rental assistance in order to meet rental obligations.

On December 2, 2002, E.P.A. and D.A. entered into an Islamic marriage. The family now receives the welfare benefits to which it is entitled. However, eligibility for various benefits was long clouded by the parents' receipt of general assistance under a program designed for single, childless adults - a circumstance that resulted from the parents' failure to disclose their marriage or the existence of a resident child. After the nondisclosure was discovered by DYFS, the parents failed to provide the Division with suitable information regarding their welfare status, despite court orders that they do so, and that status remained unclear throughout most of the year 2004. By the time of trial, however, the natural parents' welfare benefits had been regularized. Little or no income exists other than that provided through welfare, and it is unclear how rental payments will be made once temporary rental assistance, available for a three-year period, is terminated.

Edie has never permanently resided with E.P.A. and D.A. DYFS was granted custody of the child, following substantiation of parental neglect, shortly after her birth, and on August 31, 2001, Edie was placed in the home of her current foster mother, where she had resided for almost five years at the time of trial.*fn4 Although services, including visitation, were offered by DYFS to E.P.A., for the first five months of Edie's life, E.P.A. was noncompliant. By March 19, 2002, she had only seen the child on two occasions. During much of this period, D.A. could not be located.

On May 3, 2002, a weekly supervised visitation schedule was established through an agency known as Family Connections. In a report from that agency dated September 9, 2002, it was noted that both parents had regularly attended visitation, although they were frequently late, and they had established a good relationship with Edie. However, the report also noted that the natural parents had been inconsistent in their attendance at parenting training, attending only five sessions since June.

On June 6, 2003, unsupervised weekly visitation was scheduled between the hours of 11:00 a.m. and 6:00 p.m. On March 26, 2004, extended overnight visits were scheduled. However, when bite marks and scratches likely caused by Edie's younger brother were detected after the first five visits, on April 27, 2004, the court suspended the overnight visits because of safety concerns. Although weekly supervised visitation continued, a November 14, 2005 letter from Family Connections disclosed that, since July 2005, visitation had been erratic and only five visits had occurred. E.P.A. had not attended a visit since September 27, 2005. Not all of the missed visits were the fault of the natural parents. However, at least eight missed visits resulted from the parents' failure to confirm or appear, raising "serious concern[s]." Family Connections' letter continued:

It is clear that [E.P.A.] and [D.A.] truly love their daughter [Edie]. It is also evident that [Edie] loves and has a strong attachment to her parents. However there is some concern regarding [E.P.A.'s] and [D.A.'s] ability to manage the multiple systems involved in parenting their daughter. This is evident in their ongoing struggles with present systems, i.e. DYFS, Family and Criminal court. There have been multiple factors that have made it difficult for [E.P.A.] and [D.A.] to achieve reunification. However, after three years, it is concerning that they have not yet developed the skills necessary to manage or overcome these obstacles to promote reunification with their daughter.

Due to these identified concerns reunification cannot be supported at this time.

The trial judge observed that, even during trial, the parents had failed to visit E.P.A. on May 23 and May 30, 2006. Additionally, the parents had failed to cooperate in any respect with requests for evaluation by the law guardian.

Edie has been diagnosed as a special needs child, with speech and developmental delays, as well as substantial behavioral problems including aggressive conduct, anger control problems and hyperactive behavior. She has also been observed to be self-injurious. A neurodevelopmental pediatrician at the Children's Specialized Hospital initially recommended that Edie undergo a child study team evaluation to assess enrollment in a five-day-per-week pre-school handicapped program, obtain occupational therapy one or two times a week, have speech therapy two to three times per week, and undergo both speech and audiological evaluations. Edie has been diagnosed as suffering from attention deficit/hyperactivity disorder, language disorder, possible mild mental retardation, static encephalopathy, secondary to pre-natal drug exposure, and stress related to her visitation with her natural family. Despite her handicaps, Edie's foster mother seeks to adopt her.

The complex procedural history of this matter demonstrates extensive efforts at reunification. An existing protective services complaint relating to E.P.A.'s two older children was amended on June 25, 2001 to add Edie, who had been born two weeks earlier. Reunification was sought. However, on September 20, 2002, DYFS filed a complaint seeking termination of parental rights as the result of the natural parents' lack of housing and continued methadone use. At that time, Edie's foster mother advised DYFS of her willingness to adopt. A December 20, 2002, report stated that E.P.A. "does not appear interested in reuniting with [Edie]. She continues in her drug use, transient life style, and failure to maintain contact with the Division."

However, on April 15, 2003, following positive reports by Family Connections, psychologist Jessica Pesantez, and the Essex Substance Abuse Center, reunification again became the goal. At the time, E.P.A. was attending parenting skills classes, was maintaining weekly supervised visitation, and was remaining free of illicit drugs. On May 21, 2003, the guardianship complaint was dismissed. However, it was re-filed on May 23, 2005, as a result of the parents' lack of progress in maintaining stability.

On March 20, 2006, when the matter was initially scheduled for trial, both natural parents failed to appear, defaults were entered, and a proof hearing took place. The defaults were later vacated, and trial occurred between April 4, 2006 and June 1, 2006. The court issued a decision from the bench terminating the natural parents' rights on June 15, 2006, a result sought both by DYFS and Edie's law guardian.

In his decision, the Family Part judge carefully recited the history set forth in this opinion, discussed the four interrelated factors of N.J.S.A. 30:4C-15.1 as they applied to Edie and her natural parents, and concluded that termination of parental rights was in Edie's best interests and would not do more harm than good.

In assessing Edie's best interests, the judge relied in large measure upon the updated reports and testimony of psychologist Leslie Williams, who had previously evaluated the natural parents in June and July 2004 and in May 2005, providing positive evaluations. However, in a February 2006 report, Dr. Williams stated:

As noted in my previous reports, I had been in favor of reunification between [Edie] and [E.P.A. and D.A.]. However, my opinion was based on not being aware of a number of issues regarding [D.A.'s] and [E.P.A.'s] drug use, criminal records, and allegedly engaging in fraudulent activities. [E.P.A.] denied problems and said that outstanding issues had been cleared up.

In my report on [Edie's] updated bonding with her foster mother, A.H., done on October 5, 2005, I opined that [Edie] was securely bonded with A.H. and had come to see her as her psychological parent . . . .

This is still my opinion. After reviewing the case record and seeing [E.P.A.]*fn5 for an updated psychological evaluation, I do not believe that she or [D.A.] is capable of providing adequate parenting of [Edie].

As the result of evaluations of the bonding between Edie and both her natural parents and foster mother, Dr. Williams stated that, whereas he had previously believed reunification between Edie and her natural parents was a viable option, the doctor now had "some concerns regarding this recommendation." Edie had come to view her foster parent as her biological mother, and had developed a strong and secure bond with her. The doctor continued:

While [Edie] certainly knows [D.A.] and [E.P.A.], I believe that she clearly sees Ms. H. as her parent. I believe that [Edie] would suffer severe and enduring psychological harm if removed from Ms. H. In light of the problems that [E.P.A.] and [D.A.] have had in fully complying with DYFS, and with the length of time that [Edie] has been with Ms. H, I have serious concerns both in terms of removing [Edie] from Ms. H. and with [E.P.A.'s] and [D.A.'s] abilities to emotionally meet [Edie's] needs.

At trial, Dr. Williams indicated that Edie would suffer severe and enduring harm if separated from her foster mother and, although she would experience loss upon severance of parental ties, the foster mother would be able to remediate the harm. Removal of Edie, a special needs child, from her present home would severely impact upon her development and would cause her to regress behaviorally. According to Dr. Williams, Edie was in need of the permanency that her foster home provided, and the plan of foster parent adoption was appropriate.

As the result of the testimony of Dr. Williams, as well as the other evidence adduced at the termination hearing with respect to the relevant statutory factors, the Family Part judge concluded that DYFS had established by clear and convincing evidence that the parental rights of E.P.A. and D.A. to Edie should be terminated, and that relief was ordered. The present appeal by E.P.A. followed.

It is unquestionable that, in this case, the termination of the parental rights of E.P.A. and D.A. to Edie was a prolonged process. We attribute the length of the process, in part, to the laudatory efforts of the biological parents to obtain reunification with Edie and the efforts of the court and DYFS to support that goal. In part, its length also can be attributed to a well-founded concern by the court and DYFS that the parents, while developing a bond with their daughter, had not otherwise demonstrated their fitness to engage in her care. While it may have seemed to the parents that, particularly after September 20, 2004, reunification should have occurred, the Family Part judge overseeing the case prior to trial did not view matters in that fashion, and we have no cause to contest her judgment. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).

An examination of E.P.A.'s history demonstrates her own troubled upbringing, her inability to care for her two older children, and her long-term addiction to illicit drugs coupled with an inability to eliminate a reliance on methadone, itself an addictive drug, albeit one utilized in some drug treatment regimes. This history suggests that caution on the part of DYFS and the court in proceeding with plans for reunification was appropriate, and demonstrates the necessity of assurances that E.P.A. and D.A. could properly care for Edie if she were returned.

The record additionally suggests that E.P.A. and D.A. had misrepresented their status when obtaining welfare benefits, giving rise to a legitimate concern on the part of DYFS and the court that the parents had committed welfare fraud, potentially endangering their right to continued benefits. Moreover, the parent's sole source of rent was temporary rental assistance benefits that, by their nature, were designed to be of short duration. Although by August 2004, DYFS had received proof that the rental assistance would be continued for a thirty-six-month, no housing plan was proffered for the period after rental assistance ceased. Further, although the parents' welfare status was eventually regularized, a commitment to obtaining gainful employment was far from evident. A legitimate concern existed that housing would again become unstable, as it had been in the period surrounding Edie's birth, and that the family would be unsuccessful in leaving the welfare system.

The parents' criminal records posed additional concerns. By 2004, E.P.A.'s relatively significant criminal history appears likely to have been a past matter. However, outstanding warrants for E.P.A.'s arrest existed until April 2005, and both she and D.A. resisted requests for fingerprinting. As the record reflects, D.A. was again incarcerated in December 2005, tested positive for cocaine in this period, and was terminated from his methadone maintenance program. The manifest and continued unfitness of D.A. to parent Edie,*fn6 provides an independent basis for termination of parental rights, arising from the result of the marital relationship of D.A. and E.P.A. and Edie's potential continued contact with both parents upon reunification. New Jersey Div. of Youth & Fam. Serv's. v. M.M., 189 N.J. 261, 288-89 (2007).

Given the facts that we have recounted, we cannot fault either the court or DYFS for imposing additional requirements on the parents after September 2004, or for delaying reunification, despite psychological and other reports that had previously indicated that this goal remained a possibility. The record at the time of trial reflected no clear plans by the parents for the care of Edie, were she to be returned to their custody.

Yet, Edie was a special needs child whose care undoubtedly would require a greater degree of planning and preparation than would be necessary for a child who lacked Edie's developmental and behavioral handicaps. Thus, the fact that the parents retain custody of their youngest son is not dispositive of their fitness to care for Edie.

Moreover, during the lengthy periods while reunification remained under consideration, Edie was aging, and her bond to her foster mother was strengthening. The court recognized that, despite the initially positive reports of psychologists and social workers regarding reunification, by trial, the conclusion that it was in Edie's best interest to remain in her foster mother's care, and that she would be irreparably injured by severance of that relationship, had ample support in the record. Children such as Edie retain the right to a permanent home. In re Guardianship of J.P. and B.P., 180 N.J. 494, 505 (2004). It was time that she be given that home. New Jersey Div. of Youth & Fam. Serv's v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (noting the shift of focus to an expeditious, permanent placement to promote the child's well-being), certif. denied, 180 N.J. 456 (2004).

In sum, we are in agreement with the trial judge that DYFS proved by clear and convincing evidence that Edie's biological parents are incapable of raising her without causing the child further harm, In re Guardianship of J.C., 129 N.J. 1, 10 (1992), and that it is in Edie' best interest that she remain permanently with her foster mother.

Accordingly, the judgment of the trial court is affirmed.

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