January 23, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF T.D. AND S.D., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-106-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges S.L. Reisner and Gilroy.
Defendant T.D. appeals from a trial court order dated February 2, 2007, terminating her parental rights to her son, T.M.D*fn1 , born March 11, 2002, and from an April 19, 2007 order terminating her parental rights to her younger child, S.D., born July 21, 2005. We affirm.
The following evidence was presented at the trial, which began on January 8, 2007. T.D. suffers from severe cerebral palsy, as a result of which she is confined to a wheelchair and has limited use of her left arm. Division of Youth and Family Services (DYFS or the agency) social worker Ann Glass testified that based on concerns that T.D. was physically incapable of taking care of her children, both T.M.D. and S.D. were taken from her shortly after birth and were placed with foster parents who were relatives of T.D.*fn2 The agency's records also indicated that after S.D.'s birth, T.D. "was not cooperative with in-home services."
The agency paid for T.D. to be evaluated by Kessler Rehabilitation to determine what her abilities were to care for T.M.D. She was unable to pick the baby up or hold him and would require assistance in maintaining a safe home environment. T.D. could not be alone with the child "even for a few minutes." Kessler, as well as Dr. Allan J. Herman, also recommended that T.D. be evaluated with the child in her own home.
The agency referred T.D. to a medical day program for counseling, physical therapy and vocational training. However, she "refused to attend this program stating that it was boring, it took time away from visits with her child." Despite arrangements for her to attend the program twice a week, T.D. "refused to attend."
However, DYFS did arrange for T.D. to visit with the children on a twice-weekly basis since their birth, although at least one doctor recommended that visits be either daily or four times per week. DYFS paid for a nurse's aide to be present during the weekly visits.
T.D. did not follow up on any plans to take care of the children. She had initially planned to move to North Carolina with the children and to live with relatives, or to have her sister come live with her. Neither plan came to fruition. The agency initially filed for kinship legal guardianship, however, the relative foster parents preferred to adopt the children.
Ms. Glass confirmed that T.M.D. has special needs including some developmental delays. Both children were well cared for in their foster homes, and their foster parents wanted to adopt them. The foster mothers were sisters. They were both willing to allow T.D. to have continued contact with her children after adoption, and they facilitated visits between the children as well. However, T.D. was not willing to visit the children in the foster parents' homes. For example, they invited her to the children's birthday parties and she refused to attend.
Dr. Mark Singer, a clinical psychologist, testified that he conducted a psychological evaluation of T.D. He also conducted bonding evaluations of each child with T.D. and with each child's foster parent. Dr. Singer concluded that because she suffers from severe cerebral palsy, T.D. was unable to independently parent the children. He also concluded that T.D. underestimated the difficulty the children might have in separating from their foster parents, did not understand the children's needs, and tended to look to T.M.D., then age four, as a source of help with her needs instead of the other way around. Further, T.D. admitted to him that she had not participated in parental skills training, and psychotherapy services, although they had been offered to her.
According to Dr. Singer, T.M.D had a secure and significant bond with his foster mother and would be severely adversely impacted if he was forced to separate from her. The child also has some significant medical and developmental problems, to which his foster mother "seemed to be attuned" but which T.D. did not acknowledge. Dr. Singer also testified that S.D. had a "healthy secure attachment" to his foster mother and that "severing such an attachment would . . . have an adverse reaction." For both children, their foster parents had become their psychological parents. Dr. Singer testified that by age two children generally had a "solidified" attachment to an identified caregiver; for this reason it would be harder for T.M.D. to separate from his foster parent than it would be for S.D. to separate from her foster mother.
Further, according to Dr. Singer, both foster parents wanted T.D. to play a role in her children's lives, but T.D. had rejected their invitations to visit the children in their homes. T.D.'s alienation from the foster parents would increase the harm to the children if they were removed from the foster parents and placed with T.D. Based on his psychological evaluations, and not based on T.D.'s physical handicap, Dr. Singer supported the State's plan for relative home adoption by the foster parents.
According to T.D.'s testimony, she was never evaluated in her home to see if she could care for her children, and the evaluation at Kessler was in an "improper environment" which was not handicapped accessible. She testified that she tried to find programs that would help her care for her children in her home, but was unable to find any. However, she testified that she had just found a program called Neighbors that was currently providing twenty-four-hour a day seven-day per week personal care for her, and would also help with her children if they were living with her. She also testified that she had located another program called Faithful Home Care that would help care for T.M.D.
T.D. presented testimony from Olapami Obolanle of the Neighbors program. Obolanle testified that as T.D.'s personal care assistant, she was present at T.D.'s home twenty-four hours a day Monday through Friday. Someone else filled in for her on the weekends. She did the cleaning, cooking and bathing for T.D. and also helped her to get dressed. This appeared to contradict T.D.'s testimony that she was capable of doing these things for herself. However, on re-direct, Obolanle asserted that T.D. could do these things for herself but Obolanle was "just there to assist her." According to Obolanle, if T.D. had custody of the children, Obolanle would also take care of the children. However, she would try to find an assistant to help her care for them. She conceded that T.D.'s present home was not large enough for two children.
Based on the foregoing testimony, Judge Rothschild issued a comprehensive forty-four page written opinion dated January 30, 2007. He credited Dr. Singer's testimony that T.M.D. had bonded with his foster mother. He did not credit Dr. Singer's opinion that T.D. would put her own needs ahead of her children's needs. He did note her history of refusing to participate in counseling, physical therapy, vocational training, or family group conferences. Judge Rothschild concluded that physical inability to care for a child did not in itself justify termination of parental rights. However, he concluded that both children faced "considerable potential for harm" in the sense that T.D. could not safely, independently raise them. Further, T.M.D. "would clearly suffer serious emotional harm if reunited with [T.D.]."
Judge Rothschild noted that it was only within the past two months that T.D. had "obtained the services of a full time caregiver, thus eliminating the grave safety risk she posed" for the children. He concluded that this was too late for T.M.D., who "is turning five in two months, has spent his entire life with his current caretaker" and would suffer "terrible emotional harm" if separated from her. He credited Dr. Singer's testimony on that issue. On the other hand, relying also on Dr. Singer's testimony, the judge found that the State's case was "not as clear cut" with respect to S.D., who was younger and might incur less harm if separated from his foster mother.
The judge also reviewed the extensive efforts by DYFS to provide services to T.D. and particularly to find relatives and friends to assist her in caring for the children:
By any fair measure the Division has made reasonable efforts to reunify [T.D.] with [her children]. There have been several impediments - - [T.D.] has been difficult to deal with (presumably because of her depression); T.D. has had a strained relationship with her siblings, resulting in a paucity of people who could help her, and most importantly, [T.D.'s] disease made it [terribly] difficult for her to parent without an extraordinary amount of help.
He also concluded that even if DYFS had paid to have T.D. evaluated in her home, it would have made no difference because "even in her home, [T.D.] could not safely care for the children without twenty four-seven help."
The judge also reasoned that even if T.D. was not at fault in being physically unable to care for the children, the key to determining whether termination would not do more harm than good was the best interests of the children, not a moral evaluation of the parent. In T.M.D.'s case, the judge concluded that "the harm caused by removal from [the foster mother] would likely be so severe and long lasting that it alone must be the prevailing factor in the case of [T.M.D.]." On this issue he credited Dr. Singer's unrebutted testimony. The judge ordered termination of T.D.'s parental rights to T.M.D.
After a thorough review of case law and relevant literature, however, the judge was not able to reach the same conclusion with respect to the potential harm to S.D. from reunification with T.D. Therefore, he initially indicated that he would dismiss the termination complaint with respect to S.D., and he ordered DYFS to investigate the Neighbors program and T.D.'s current housing. He also ordered DYFS to investigate T.D.'s depression and other psychological issues to determine whether they would be harmful to the child. The judge subsequently stayed reunification between S.D. and T.D. pending further hearings concerning the issues he had ordered DYFS to investigate.
The court held a hearing on April 13, 2007 with respect to S.D.*fn3 At this hearing, the court heard testimony from Sandra Cooper, the director of Neighbors, Inc. Cooper directly contradicted the previous testimony of Olapami Obolanle, on which Judge Rothschild had based his decision not to terminate T.D.'s parental rights to S.D. According to Cooper, Obolanle did not provide services to T.D. twenty-four hours a day, Monday through Friday, and the Neighbors program did not provide seven day a week, twenty-four hour per day care. Rather, Neighbors provided "between five to eight hours a day of service," under a contract with the State Division of Developmental Disabilities (DDD). According to Cooper, Obolanle's testimony about her ability to provide child care as an employee of Neighbors also was not true, nor was it true that "Medicaid" would send Obolanle "an assistant to care for the children." Neighbors, Inc. did not authorize Obolanle to contact Medicaid to arrange services for T.D., nor was she authorized to testify on behalf of Neighbors. In fact, she had requested permission to appear in court on T.D.'s behalf and Neighbors had denied permission.
Cooper was also shown a letter dated February 20, 2007, addressed to DYFS social worker Glass, which plaintiff had sought to introduce at the prior hearing, concerning available support for T.D. The letter was written on Neighbors' stationary and purported to be signed by Ms. Kowalchuk, the prior director of Neighbors. According to Cooper, the signature was "absolutely not" that of Kowalchuk. She also testified that a second letter, from Obolanle, was not authorized. Cooper testified that Neighbors could provide personal services to T.D., including helping her find housing. However, she contradicted T.D.'s testimony that Neighbors was helping her to find a place to live where she could have her children living with her. Neighbors' commitment was to provide forty hours per week of assistance. Neighbors could not accept responsibility for T.D.'s children "at all," and that had been made clear to T.D. "from the beginning."
According to T.D., Obolanle was willing to "volunteer" to help her with her children. However, Neighbors had told Obolanle that she could not get involved. In her testimony, T.D. asked that if Neighbors could not help with child care that she be given additional time to find other assistance. She also represented to the court that she would have an apartment available May 1, but according to Cooper's testimony, the apartment was not necessarily available that soon. In response to the judge's question, Cooper testified that to her knowledge there was no program available through DDD that would provide full-time care for the children of handicapped people. The available funding was to support the handicapped clients of DDD, but not the clients' children.
After hearing this testimony, the judge concluded that he was constrained to change his prior ruling:
I have to look to the safety of this child, and there is just no proof in this case that this child would be safe being returned to a person who can get care for herself 40 hours a week, and even that includes some people who may not be approved by the Division, perhaps can get care for a greater number of hours if things work out but has . . . no indication . . . that she could get care to take care of her child.
. . . I don't think I've ever changed an opinion on a case before, . . . certainly not as dramatically as this, but I was relying on Ms. [Obolanle's] testimony, and it appears that it just was not accurate.
The judge made it clear that he was not deciding to terminate T.D.'s parental rights to S.D. because of her handicap, but because of her inability to obtain sufficient assistance with child care:
If someone has a physical disability, I believe . . . that if he or she can have 24 -7 care, he or she . . . should be allowed to have custody of his or her child.
That's different from does the State of New Jersey have an affirmative obligation to provide 24-7 care to any person with a physical disability, so as to enable them to have custody of their child. I think the latter proposition is one that would be a step well beyond that which . . . a Superior Court Judge, could take.
Judge Rothschild supplemented his oral opinion with a comprehensive written opinion dated April 18, 2007. Based on Cooper's testimony, he concluded that DYFS had proven that S.D. could not safely be returned to T.D.'s custody and that the agency had satisfied the second and fourth prongs of the best interests test "by more than clear and convincing evidence." See Matter of K.H.O., 161 N.J. 337, 347-48 (1999). He also noted that the foster parents were willing to allow T.D. to visit her children.
In order to obtain termination of parental rights in the best interests of the child, DYFS must prove the following four criteria:
(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.
"The four criteria enumerated in the best interests standard 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." IMO K.H.O., supra, 161 N.J. at 348. Moreover, "parental fitness is the key to determining the best interests of the child. The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid.
Recognizing the special role of the trial judge in finding facts based on the observation of witness testimony and the opportunity to judge their credibility, our standard of review is deferential:
Review of a trial court's termination of parental rights is limited. A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by "adequate, substantial and credible evidence" on the record. Additionally, as a general rule, we must grant deference to the trial court's credibility determinations. However, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." Still, even in those circumstances we will accord deference unless the trial court's findings "went so wide of the mark that a mistake must have been made."
[DYFS v. M.M., 189 N.J. 261, 278-79 (2007) (citations omitted).]
On this appeal, T.D. contends that DYFS failed to prove all four aspects of the test for termination of parental rights as set forth in N.J.S.A. 30:4C:15-1a. Having reviewed the entire record, we conclude that her arguments are based on an inaccurate construction of the evidence, and are otherwise without merit. The trial court's decisions as to both children are supported by substantial credible evidence. See DYFS v. M.M., supra, 189 N.J. at 278-79; Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated in his cogent written opinions.
The crux of T.D.'s argument is her contention that this case presents the novel issue of "whether the court could terminate [T.D.'s] parental rights based exclusively on [T.D.'s] physical handicap." We conclude that T.D. has mischaracterized the issue. As Judge Rothschild made abundantly clear in his opinions, he did not terminate T.D.'s parental rights based on her handicap. Rather, he based his decision on T.D.'s physical inability to parent her children without daily around-the-clock care which was not available to her and without which the children would be at mortal risk.
DYFS offered T.D. multiple services and made numerous efforts to find relatives who could live with her and help her parent her children. T.D.'s refusal to accept family-based services, and to accept the foster parents' overtures to have her visit her children at their homes, contributed to a situation in which the children bonded with the foster parents without developing a similar strong bond with T.D. The record is replete with efforts by DYFS to provide services which T.D. declined to accept.
Further, T.D.'s case in support of her ability to care for the children was based on inaccurate information. We appreciate T.D.'s sincere desire to have custody of her children. However, having reviewed the record, we find it difficult not to conclude that T.D. had some complicity in providing the court with a forged letter from Neighbors and with other inaccurate information about the alleged availability of child care. At a minimum, her testimony was marked by misplaced optimism about her ability to obtain appropriate housing and child care assistance. After, respectively, five years and two years in foster care, her children's need for permanency must predominate over T.D.'s desire for yet more time to accomplish what appears to be an unattainable goal. See DYFS v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004)("Children have their own rights, including the right to a permanent, safe and stable placement.").
Due to T.D.'s long-term inability to care for her children, they have lived in foster care with their great aunts their whole lives. The record amply supports Judge Rothschild's conclusion that T.M.D. had developed a strong bond with his foster family and would suffer devastating emotional harm if he were separated from them. After five years, T.D. was still not in a position to act as a parent to T.M.D. Even if this situation was not her fault, as Judge Rothschild accurately noted, the goal is not to punish the parent but to preserve the best interests of the children. A parent may be morally blameless and yet the child's best interests may require termination of parental rights. See DYFS v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 2002). Further, even if S.D. had not developed as strong a bond with her foster mother, after two years in foster care she is legally entitled to a permanent home. No purpose would be served by keeping her in limbo while T.D. continues her search for round-the-clock child care. See DYFS v. C.S., supra, 367 N.J. Super. at 111.
Finally, there appears no doubt that even after her children are adopted by T.D.'s aunts, T.D. will be able to see them on a regular basis. See DYFS v. M.M., supra, 189 N.J. at 293; DYFS v. C.S., supra, 367 N.J. Super. at 120. Indeed, it appears that the primary obstacle to such visitation up to now has been T.D.'s persistent refusal to visit her children at the foster parents' homes. If T.D. can reconcile with her aunts, the children will have the best situation available to them under the circumstances, in having loving adoptive parents and the love and attention of their mother as well.