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New Jersey Division of Youth and Family Services v. G.A.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 18, 2007

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
G.A., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF L.A., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-201-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2007

Before Judges Winkelstein and Yannotti.

G.A. appeals from an order entered by Judge Bernadette N. DeCastro on October 4, 2006, which terminated G.A.'s parental rights to L.A. and awarded guardianship of the child to the Division of Youth and Family Services (Division) for purposes of adoption. For the reasons that follow, we affirm.

I.

J.M. gave birth to L.A. on January 6, 2003. J.M. was thirty-two years old at the time. The child tested positive for opiates.*fn1 The Division was informed and on January 8, 2003, one of its caseworkers met with J.M. at the hospital. J.M. told the caseworker that she used three ten-dollar bags of heroin each day until she learned that she was pregnant. She continued to use one ten-dollar bag of the drug a day during her pregnancy.

J.M. stated that since April 15, 2002, she had been on probation for possession of heroin. J.M. said that she tried to wean herself off of the drug but no detoxification program would accept her because she was pregnant. J.M. reported that she had been diagnosed as bipolar in 1999 but did not receive treatment because she was in denial about her condition.

J.M. informed the caseworker that G.A. was the father of L.A. G.A. was fifty-nine years old at the time. J.M. said that she and G.A. had been married for about two and one-half years. G.A. was self-employed as a taxi driver, and worked twelve hours a day, six days a week. J.M. asserted that G.A. was aware of her drug use and was upset about it.

The Division filed an abuse and neglect action and sought an emergency order granting custody of the child to the Division. On January 24, 2003, the judge granted the Division's application and entered an order finding that L.A.'s immediate removal from the home was required because J.M. used drugs during her pregnancy; L.A. tested positive for opiates at birth; J.M. was currently using drugs; and J.M. was residing with the child's father. The judge further found that there were no relatives available for placement.

On March 6, 2003, the judge ordered that L.A. would remain in the Division's custody. The judge required J.M. and G.A. to attend psychological evaluations; ordered J.M. to attend a substance abuse treatment program; and required J.M. to submit to random urine screening. On the same date, the judge entered another order finding that J.M. and G.A. had abused and neglected the child, and noted on the order that L.A. had tested positive for opiates at birth.

In March 2003, psychologist Santa A. Gregory, Ph.D. (Dr. Gregory) evaluated J.M. In her report, Dr. Gregory stated that J.M. had admitted she was using drugs when she was pregnant. J.M. reported that she was currently addicted to heroin and last used the drug on the night before the evaluation. She claimed that, at one time, she used prescription drugs to control the symptoms of bipolar disorder and severe panic attacks but G.A. had prevented her from obtaining those drugs. J.M. told Gregory that she used heroin as a substitute for her prescribed medication. Dr. Gregory found that J.M. required detoxification and "an inpatient stay" at a treatment facility. Dr. Gregory concluded, "It is clear that [J.M.] is unable to parent her young daughter at this time."

In May 2003, psychiatrist James J. Ferretti, M.D. (Dr. Ferretti), performed an evaluation of J.M. In a report dated May 27, 2003, Dr. Ferretti noted that J.M. had a twelve-year history of drug involvement. J.M. said that she married G.A. while she was homeless, after having been forced to leave her parents' home. J.M. told Dr. Ferretti that she was hospitalized on more than ten occasions for detoxification and treatment of depression. J.M. stated that G.A. was "extremely" controlling and he would not let her leave the house even to attend meetings of Narcotics Anonymous. J.M. said that she did not intend to continue her relationship with G.A.

Dr. Ferretti made the following diagnosis of J.M.: substance abuse, opiates in remission since January 2003; depression, not otherwise specified (NOS) with anxiety; and borderline personality disorder. Dr. Ferretti noted that J.M. planned to rehabilitate herself, become employed, establish a separate domicile from G.A., and regain custody of L.A. Dr. Ferretti observed that J.M.'s prognosis for recovery was guarded "at best." He concluded that J.M. could not be considered "a viable parenting resource" at that time.

In June 2003, G.A. was evaluated by psychologist Ernesto L. Perdomo, Ph.D. (Dr. Perdomo). In his report, Dr. Perdomo concluded that G.A. has very little insight into his own behavior, and he "tends to be a rather peripheral figure in the family." According to Dr. Perdomo, G.A. said that he was unaware that J.M. was on drugs and only learned about her drug use at the hospital after L.A. was born. Dr. Perdomo observed that G.A. had positive qualities that may help him fulfill his parental responsibilities but in doing so, G.A. would need J.M.'s support as well as services from the Division. Dr. Perdomo opined that G.A.'s ability to effectively parent L.A. will be limited because of G.A.'s lack of insight and his "peripheral involvement in the family[.]"

The court held a compliance review hearing on July 3, 2003. On that date, the judge entered an order that provided L.A. would remain in the custody of the Division and the child would continue in foster care. The judge required J.M. to complete a substance treatment program. The judge ordered G.A. to attend parenting skills training and discuss with the Division's caseworker his plans for the child. The judge additionally ordered that L.A. could be placed with J.M. in her treatment program if J.M. "stabilizes herself" and the program approves the child's placement.

Following the next compliance review hearing on October 2, 2003, the judge entered an order that maintained the Division's legal and physical custody of the child. The order required that J.M. attend an in-patient program at Straight and Narrow (SN), and provided that L.A. could be placed at SN, subject to the program's rules and regulations.

On November 5, 2003, one of the Division's caseworkers met with J.M. at SN. J.M. told the caseworker that she did not want to remain in a relationship with G.A. She claimed that G.A. had provided her with drugs in the past, and abused her both physically and sexually. According to J.M., G.A. was very controlling. J.M. asserted that G.A. had locked her in her room during the last weeks of her pregnancy.

On November 7, 2003, the caseworker spoke with G.A. and he denied these allegations. G.A. said that J.M. was a "bad woman" and he did not want L.A. to be with her. G.A. asked what he had to do to obtain custody of L.A. because J.M. was a "liar" and "she will use drugs again[.]" The caseworker told G.A. that he could be considered an alternative parenting resource if J.M. was unable to care for L.A. After further discussion, G.A. agreed that L.A. could stay with J.M. provided she "stays off the drugs[.]" On November 14, 2003, L.A. joined J.M. at SN, and the Division arranged visitation for G.A.

J.M. continued at SN and, although persons at SN expressed some concern regarding J.M.'s compliance with its rules and regulations, J.M.'s attitude apparently improved. J.M. progressed to the point where she was to be discharged to a substance abuse treatment program at Project Home (PH). J.M. was scheduled to enter PH on May 4, 2004, but on that day, J.M. left L.A. with her parents and did not return for several hours. The Division was contacted.

A caseworker went to J.M.'s parents' home. J.M. was on the phone, speaking with her mother. The caseworker reported that J.M. was crying. J.M. alleged that G.A. had raped her. J.M. admitted that she had used cocaine that day. The Division transported J.M. to PH, and L.A. remained with J.M.'s parents for the night. On May 5, 2004, J.M. obtained a temporary domestic violence restraining order against G.A. She alleged that G.A. had assaulted her physically and sexually. However, J.M. subsequently elected not to pursue the matter, and later admitted that her allegations were false.

The court held another compliance review hearing on May 10, 2004. The judge entered an order that day, which provided that the Division would continue to have legal custody of L.A. and J.M. would have physical custody of the child. The order required that J.M. remain at PH. However, the order stated that if J.M. did not return to the program, or had a positive drug screen, the child would be removed from J.M.'s care.

On May 11, 2004, J.M. and L.A. entered a battered women's shelter in Newark. A caseworker at the shelter contacted the Division on June 9, 2004, and advised that she believed J.M. was using drugs. The caseworker said that if the Division was unable to test J.M. that day, J.M. could not remain at the shelter. The caseworker later informed the Division that J.M. and the child left the shelter. The Division initiated a search for J.M. and L.A. Four days later, J.M. contacted the Division and advised that she was unable to care for L.A. The Division took custody of the child and she was placed back in foster care.

On October 7, 2004, after another compliance review hearing, the judge entered an order, which provided that the Division would have legal and physical custody of L.A. The judge ordered J.M. to attend an in-patient substance abuse treatment program. It appears, however, that J.M. did not attend the treatment program as ordered.

On January 6, 2005, the judge entered a permanency order that stated it was unsafe for L.A. to return home. The judge accepted the Division's permanency plan, which called for termination of parental rights and a concurrent plan of reunification with G.A. In February 2005, J.M. advised the Division that she was still "drug involved."

In May 2005, a caseworker informed G.A. that if reunification was to occur, J.M. could not be living in the home. Furthermore, G.A. was told that because he suffered a heart attack and had open-heart surgery in October 2004, he would have to demonstrate that he was physically capable of caring for the child.

The Division filed its guardianship complaint on July 7, 2006. In November 2005, Dr. Frank J. Dyer, Ph.D. (Dr. Dyer), performed psychological evaluations of J.M. and G.A. In a report dated February 1, 2006, Dr. Dyer diagnosed J.M. as having bipolar disorder, opiate dependence, and cocaine dependence. Dr. Dyer concluded that J.M. has a personality disorder, NOS with prominent borderline, and anti-social and schizoid features.

Dr. Dyer wrote that J.M.'s psychological profile was "extremely negative in terms of [her] parenting capacity." He noted that J.M.'s recovery from drug addition was not yet "sufficiently secure" and did not "inspire trust and confidence in her ability to avoid relapsing."

Dr. Dyer additionally noted that J.M.'s plan for L.A. involved co-parenting with G.A., with whom J.M. had a "stormy" relationship. Dr. Dyer observed that J.M. had falsely accused G.A. of rape and assault. He commented:

Should [J.M.] perceive [G.A.] as not meeting her needs or as being antagonistic to her, then there is a very significant risk of further turbulence in their relationship, with a risk of adverse consequences for [L.A.] if she were to be placed in their custody. [J.M.'s] Bipolar Disorder and other psychological problems including Borderline Personality Disorder significantly compound the clinical picture and exponentially increase the risks to any child in the subject's care.

Dr. Dyer recommended that J.M. not be considered "a viable candidate for custody of" L.A.

With regard to G.A., Dr. Dyer noted that he did not have any drug, alcohol, psychiatric or criminal history. Dr. Dyer found that G.A. had "an extremely strong work ethic." He exhibited no personality disorders and was "functioning within the parameters of psychological normality." Dr. Dyer opined that G.A. "would be able to function marginally well as a caretaker for [L.A.] if she were placed into his sole custody and [J.M.] was not part of the household."

Dr. Dyer wrote that J.M. would present a risk to the child due to her "multiple psychiatric and drug problems." Dyer added:

The most difficult problem in regard to placement of [L.A.] with [G.A.] is that [G.A.] works an enormous number of hours driving a taxi. While [G.A.] indicates that he would cut down his work schedule, he would still be out of the house for a significant period of time, which would necessitate arranging some form of childcare. Being that [G.A.] does not fully appreciate[] difficulties presented by [J.M.], it is likely that he would rely on her for at least part of the childcare responsibilities, which would be unacceptable. . . . While there is nothing from a psychological perspective that would preclude [G.A.'s] taking care of [L.A.], the practical issues associated with [G.A.'s] heavy work schedule, even the reduced schedule he proposes if the child is placed into his care, would seem to be an insurmountable barrier to a successful placement of this child with him.

On March 28, 2006, J.M. voluntarily surrendered her parental rights to L.A. The trial on the termination of G.A.'s parental rights was held on various dates in May, June, July, and September 2006.

On October 4, 2006, Judge DeCastro filed a comprehensive written opinion, in which she concluded that the Division had proven by clear and convincing evidence the four prongs of the "best interest" test codified in N.J.S.A. 30:4C-15.1a. The judge entered an order in conformance with her opinion and this appeal followed. G.A. argues that the evidence does not support the judge's findings and the judge erred in terminating his parental rights.

II.

In order to secure an order terminating parental rights, the Division must prove 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 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 [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.

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

These four criteria "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Our review of a trial judge's decision to terminate parental rights is limited." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).

"Particular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Our standard of review may be expanded if the trial judge erred in evaluating "the underlying facts and the implications to be drawn therefrom." Ibid. (citing In re J.T., supra, 269 N.J. Super. at 188-89). However, we will still accord deference to the judge's "findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." Ibid.

G.A. first argues that there is insufficient evidence to support the judge's finding that L.A.'s "safety, health and development has been or will continued to be endangered by" her relationship with G.A. N.J.S.A. 30:4C-15.1a(1). G.A. insists that he did not know of J.M.'s drug addiction. He contends that any harm to the child resulting from J.M.'s use of heroin during the pregnancy cannot be attributable to him. We disagree.

Here, the judge found that G.A. was aware of J.M.'s drug use while she was pregnant with L.A. The judge found that G.A.'s claim to the contrary was not credible. The record amply supports the judge's finding. It is undisputed that J.M. had a long history of drug involvement. She was addicted to heroin during the three years she was married to and living with G.A. J.M. admitted using three bags of heroin each day until she learned that she was pregnant with L.A., and thereafter she used one bag of heroin each day.

Moreover, J.M. reported to the caseworker that G.A. was aware of her drug use and he was upset about it. Dr. Dyer testified that it was inconceivable "that somebody who had been married to a -- heroin addict with a problem that severe, [and was] living with such an individual, could fail to detect signs of impairment due to the influence of drugs." Thus, there is substantial credible evidence in the record for the judge's finding that G.A. was aware that J.M. was using drugs during her pregnancy.

The judge also found that G.A. harmed the child because he did not take any steps to protect the child from J.M.'s drug use. There is no evidence that G.A. took steps to stop J.M. from using heroin during the pregnancy. G.A. asserts that he tried to get J.M. into a detoxification program but the record shows that this did not occur until after L.A. was born. During J.M.'s pregnancy, G.A. turned a blind eye to J.M.'s drug use and the harm it was having on the unborn child. In our view, there is substantial credible evidence for the judge's finding that G.A. harmed the child.

G.A. next argues that the judge erred by finding that he is unwilling or unable to prevent the harm to the child. N.J.S.A. 30:4C-15.1a(2). Again, we disagree. As Judge DeCastro found, initially G.A. envisioned that J.M. would be the primary caretaker for the child. After J.M. surrendered her parental rights, G.A. maintained that he was capable of providing the child with a stable and secure home. However, J.M. remained a part of G.A.'s care plan for L.A. J.M.'s drug use and her severe psychological problems continued to pose a risk of harm to the child, and G.A. failed to protect the child from that harm.

Dr. Dyer testified that G.A. could function marginally as a caretaker if L.A. were in his sole custody and J.M. was not part of the household, but J.M's drug and psychiatric problems posed a risk to the child. Dr. Dyer observed that there was a substantial likelihood that J.M. would resume her use of heroin. Furthermore, because J.M. suffered from a "severe psychiatric disorder," there was a risk that she would engage in the sort of "erratic behavior" that she "displayed in the past."

As noted previously, Dr. Dyer stated in his report that G.A. did not appreciate the difficulties posed by J.M.'s dysfunctional behavior, and therefore he was likely to turn to J.M. for assistance in fulfilling his child care responsibilities if the child was returned to him. Dr. Dyer stated that in his interview with J.M., she spoke of leaving G.A. but her comments "suggested that she was rather dependent upon him in many respects." He added that it was his impression that if J.M. were a part of the household, "then it would be a virtual certainty that [G.A.] would rely on her for at least some of the childcare responsibilities."

G.A. testified at trial that he had severed his relationship with J.M. G.A. stated that J.M. was not living with him, claimed that he did not know where she was living, and said that he had only seen J.M. occasionally on the street. The judge found this testimony unconvincing and the record supports her finding.

Witnesses testified at trial that they saw J.M. at G.A.'s apartment on two occasions after G.A. claimed that she was no longer living there. J.M. told an investigator for the Office of the Public Defender that she stayed in G.A.'s apartment three or four days each week. J.M. was seen with G.A. in his taxicab. In addition, a woman's clothes were seen in the apartment.

Thus, the record shows that G.A. had not taken steps to ensure that the child was protected from J.M.'s drug use and her dysfunctional behavior. J.M. remained a part of G.A.'s care plan for the child. We are therefore convinced that the record amply supports the judge's finding that G.A. was unwilling and unable to eliminate the harm to the child. N.J.S.A. 30:4C-15.1a(2).

G.A. additionally argues that the Division failed to make reasonable efforts to provide him with services required to correct the circumstances that led to the child's placement outside the home. N.J.S.A. 30:4C-15.1a(3). This contention also is without merit.

In her written decision, the judge noted that the Division's efforts were initially focused on reunification of L.A. with the family, with J.M. as the primary caretaker. The Division accordingly provided services to address J.M.'s drug addiction and her severe psychological problems. When its efforts to assist J.M. failed, the Division planned for the termination of parental rights and reunification of the child with G.A. The Division provided G.A. parental skills training, homemaker assistance and visitation. Ultimately, the Division sought the termination of G.A.'s parental rights. The judge found that the Division's efforts were sufficient. We are convinced that there is ample support in the record for the judge's finding.

G.A. additionally contends that the Division failed to show that termination of his parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1a(4). G.A. argues that there was never any finding that he was not a fit parent. He argues that he has been "tarred with the brush of J.M.'s drug addition." He argues that his parental rights may not be terminated when it was not shown that he harmed the child.

However, as we stated previously, the evidence clearly shows that G.A. harmed the child and he is unwilling and unable to eliminate that harm. Moreover, Dr. Dyer testified that L.A. has established a bond with her foster parents and she would suffer a traumatic loss if she is removed from the foster home. Dr. Dyer further opined that G.A. would not be able to mitigate that harm. In our view, the evidence provided clear and convincing support for the judge's determination that termination of G.A.'s parental rights would not do more harm than good.

III.

The Division and the Law Guardian argue that the decision in this case to terminate G.A.'s parental rights is entirely in accord with N.J. Div. of Youth & Family Serv. v. M.M., 189 N.J. 261 (2007). We agree.

In M.M., the Court held that a father's parental rights could be terminated where he failed to protect his young son from the harm posed by his "mildly-retarded" mother, who suffered from substance abuse problems, ran away from home habitually, and made unsubstantiated allegations of domestic violence against the father. Id. at 270-71.

In M.M., the Division became involved shortly after the child was born. The Court observed that, "[T]he mother had poor hygiene, appeared overwhelmed caring for the newborn, and needed constant direction." Id. at 269. The Court noted that the child was hypoglycemic and required regular feedings but the mother could not calculate the feeding times. Ibid. The father proposed to bring the mother and child with him every day to his dry-cleaning job. Ibid. The Division found the father's care plan unacceptable, determined that there were no alternative caregivers, and placed the child with foster parents. Ibid.

Ultimately, the trial court ordered the termination of the parental rights of both parents. On appeal, we affirmed the termination of the mother's parental rights but reversed the order as to the father and restored his parental rights. Id. at 277. The Supreme Court reversed and affirmed the termination of the father's parental rights, holding that there was clear and convincing evidence to support the trial judge's findings on the four elements of the "best interests" test. Id. at 293.

The Court in M.M. stated that the father "did not fully appreciate the needs of his infant son or the risks created by the mother's presence in the home." Id. at 284. The Court observed that the father had "questionable judgment" and an "inability to exercise the prudence necessary to protect the son from the mother's harmful presence." Ibid. The Court further noted that the trial judge had determined that a delay in permanent placement would further harm the child. Id. at 285. The evidence showed that the child would be harmed if he were removed from his foster parents because he had developed strong bonds under their care. Ibid. The Court added, "Indeed, there was no evidence that the father's situation was improving or would be improved at any point in the future." Ibid.

The facts presented in this case are substantially similar to those in M.M. Like the mother in M.M., J.M. has harmed L.A. and the evidence shows that, despite his claims to the contrary, J.M. remains part of G.A.'s care plan for the child. Here, as in M.M., G.A. does not fully appreciate the risks to the child created by J.M.'s presence in his home. Furthermore, the record makes plain that G.A. has questionable judgment and, like the father in M.M., lacks the ability "to exercise the prudence necessary to protect the [child] from his mother's harmful presence." Id. at 284.

The termination of G.A.'s parental rights also is consistent with the Court's recent decision in G.L., supra. In that case, a child died and the father was charged with inflicting the fatal injuries by shaking the child. G.L., supra, 191 N.J. at 600. While the criminal charges were pending, the mother became pregnant with another child. Ibid. The mother insisted that the father did not shake the child but she recognized that he was guilty of failing to seek help for the child. Id. at 601.

The father was convicted of child endangerment and a term of incarceration was imposed. Id. at 603, n 2. The Division sought the termination of the mother's parental rights, alleging that the continued relationship between the parents would place the child at risk when the father was released from prison. The trial judge found that the mother's continued contact with the father was unacceptable and entered an order terminating her parental rights. Id. at 604.

However, the Supreme Court held that termination of parental rights was not warranted in the circumstances. The Court noted that there was no evidence that the mother was an unfit parent, and she had complied with all of the requirements imposed by the Division. Id. at 607. The mother had never allowed the father to see the child unsupervised and agreed "to maintain that stance." Ibid. The Court stated:

This case differs completely from the facts in Division of Youth & Family Services v. M.M. There, we found that a father who refused to eliminate the threat posed to his special-needs son by his substance-abusing wife, whose parental rights had been terminated, had forfeited his own right. There, the father insisted on continuing to live with his wife and offered no realistic parenting plan that would have kept his son away from his offending spouse. That is simply not the evidence before us. [The mother] has, at all times, shown that she is willing and able to do whatever is necessary to raise and care for her daughter. She stopped living with [the father] and, at the behest of [the Division], refused to allow him to see [the child] unsupervised. Had the father in M.M. taken such steps, the outcome in that case would likely have been different. [Id. at 607-`08.]

The facts in this matter are significantly different from those in G.L. The mother in G.L. convincingly asserted that she would protect the child from the father. That is not the case here. The record plainly shows that, despite G.A.'s assertions to the contrary, J.M. remains a part of G.A.'s care plan for the child. In G.L., the parent was willing and able to eliminate the risk of harm to the child. In this case, the evidence clearly warrants a different conclusion.

We have considered G.A.'s other contentions and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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