February 21, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.A., DEFENDANT-APPELLANT, AND A.D. AND A.P.K., DEFENDANTS.
IN THE MATTER OF THE GUARDIANSHIP OF K.A.A., A.L.D.A. AND J.L.D., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, FG-04-56-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges S.L. Reisner and Baxter.
Defendant M.A. appeals from an April 26, 2007 order entered by Judge Page terminating her parental rights to three of her children, K.A., A.A. and J.D.*fn1 We affirm.
This case concerns three of M.A.'s children, K.A., who was born April 28, 2000, A.A., who was born February 2, 2005, and J.D., who was born July 28, 2006. K.A. lived with M.A. and her boyfriend A.D. (not the child's father), from the time the child was born until he was four years old, when he was placed in foster care. The other two children were taken from M.A. at birth. K.A. has been diagnosed with attention deficit hyperactivity disorder (ADHD) and the youngest child, J.D., is medically fragile and has "severe reflux."
In a prior opinion, we affirmed a determination by Judge Connor that M.A. abused and neglected K.A. and his younger brother A.A., N.J.S.A. 9:6-8.21. New Jersey Div. of Youth and Family Services v. M.A., Docket No. A-5427-05T4 (App. Div. February 5, 2007). We reviewed M.A.'s parenting history in some detail in that opinion. Additional evidence was introduced at the guardianship trial before Judge Page.
Prior to the birth of K.A., defendant had three other children who were legally removed from her and placed in the custody of her parents in New York. The Division of Youth and Family Services (DYFS) attempted to interview M.A. and A.D. in 2004, to check on the welfare of K.A., but she refused to cooperate and left New Jersey before DYFS could enforce its right to interview her.
According to DYFS case worker Douglas Palm, M.A. next came to the attention of DYFS in January 2005, after she "was found unconscious in her hotel room" in Ocean City, New Jersey while she was caring for K.A. The police gave custody of K.A. to M.A.'s boyfriend, A.D. When Palm interviewed A.D. on January 31, 2005, he admitted a history of drug abuse. On February 5, 2005, K.A. was removed from A.D.'s custody after the two of them were found at a bus station in Atlantic City and A.D. was observed to be nodding off, apparently under the influence of drugs.
Palm interviewed M.A. shortly after she gave birth to A.A. on February 2, 2005. At that point, M.A. admitted that she had not had any prenatal care while pregnant with this baby. She also told Palm that she had had no prenatal care when pregnant with K.A., and that she had given birth to K.A. on the kitchen floor of an apartment instead of going to the hospital. She had done this intentionally, because she was afraid that K.A. would be taken away from her, as had happened with her first three children. She also admitted that she had not obtained any routine medical care for K.A.; he had not had any immunizations or other well-child care.
According to DYFS case worker Bianca Ginsburg, A.A. was placed in foster care soon after he was born in February 2005. Ginsburg testified that in 2006, in an effort to assist with reunification of M.A. with the two children, DYFS offered a variety of court-ordered services to M.A. including psychological and psychiatric evaluations and parenting classes. M.A. frequently failed to appear. The primary problems that prevented M.A. from being reunified with K.A. and A.A. were her lack of cooperation with "Court ordered services" to address her mental health issues, and her failure to obtain stable housing.
Although the agency attempted to arrange for visitation between M.A. and her children, M.A. often would be late or would not appear. She also sometimes paid attention to the younger child and not the older child, K.A. The agency also unsuccessfully attempted to locate relatives with whom to place the children.
M.A. had another baby, not the subject of this appeal, in 2007. She admitted that she had no prenatal care while pregnant with this baby, because she "was afraid" that DYFS would "take the child into custody." When she gave birth to this baby by Caesarean section, the doctors found that "she still had staples in from the previous C section. There was [concern] for the child's health as well as mom's mental status at the time." The new baby weighed two pounds one ounce at birth.
M.A. testified that she fully cooperated with whatever services DYFS offered her, including parenting classes and psychological evaluations. She admitted that K.A. had no prenatal or other medical care but blamed it on problems with Medicaid. She admitted that she also did not bring him for medical treatment because she was afraid he would be taken away from her, and she admitted that she did not get prenatal care during her later pregnancies for the same reason. She understood that the reason her children were not with her was because of her mental status, but she felt she could care for them. If the three children were returned to her, she planned to keep them with her in her one-bedroom apartment until she could find another apartment.
The State presented the testimony of its psychological expert, Dr. Gruen, who had examined M.A. and had also completed a bonding evaluation of M.A., her three children, and A.D., who is the father of A.A. and J.D. Based on his interview with M.A. and the psychological tests he administered, Dr. Gruen diagnosed M.A. as suffering from a paranoid personality disorder. According to Dr. Gruen [M.A.] exhibits very poor judgment, neglect of herself, neglect of the children, very little understanding of what it means to parent, blames everybody else for her own shortcomings. I felt that her reality testing was borderline. A lot of times when I was talking to her she just didn't make any sense.
Dr. Gruen also concluded that M.A. suffered from "delusional and paranoid thinking, withdrawal from significant relationship[s] with other[s], anxiety, depression, avoidance, and narcissism." He found M.A. to be "emotionally unstable, easily confused, highly defensive. . . Her thinking is very unfocused and tangential." As a result, "she would have a very difficult time taking care of young children." He concluded that her documented history of failing to obtain medical treatment for herself and the children was due to her paranoia, because if you have your baby at home and you don't report things, you don't go to the doctor . . . you can't be identified. And I think that has motivated her throughout. She doesn't want any authority figure to know anything about her business for fear that they would criticize or take the children away.
He also testified that M.A.'s psychological problems were "deep-[seated] and unlikely to change" without intensive therapy, and that based on her past history, she was unlikely to "engage in that level of therapy."
According to Dr. Gruen, during the bonding evaluation with M.A., A.D., and the three children, the two adults paid little attention to the oldest child, K.A., whom Dr. Gruen described as very wounded and vulnerable. M.A. held the baby, J.D., but "didn't interact, didn't try to stimulate the baby verbally or provide a lot of contact or comfort." Instead, M.A. "spent most of the time berating [A.D.] for leaving them alone . . . not taking care of them, not being a father." Dr. Gruen concluded that M.A. had no "significant psychological bond" with any of the children. He concluded that M.A was not psychologically fit to parent the children, and that severing M.A.'s parental rights would pose no serious and long-term harm to the children. He also emphasized that K.A., who had been damaged by his experience of living with M.A. and A.D and then being placed in several foster homes, had a particularly strong need for permanency.
M.A. presented testimony from a psychologist, Dr. David Bogacki, who had evaluated M.A. and the three children. Based on psychological testing, Dr. Bogacki agreed with Dr. Gruen that M.A. scored very high on "the paranoid scale," however he did not believe this would "prevent her from parenting the children." He felt that through counseling and therapy she could try to become less defensive and less over-sensitive to criticism. He also agreed that M.A. had "adjustment disorder with depressed moods, avoidance personality disorder with narcissistic and paranoid traits." However, he believed this did not necessarily rule out her ability to parent the children. Based on his bonding observation, he concluded that M.A. cared for the children well and that the two older children had an attachment to her. M.A. admitted to a history of domestic violence with A.D., but did not tell Dr. Bogacki that at the time of the interview she was pregnant with yet another child by A.D. On being confronted with the fact that M.A. had not had prenatal care when pregnant with any of the three children, or the child with whom she was currently pregnant, the doctor admitted that this "would give rise to concern with respect to her capacity to be able to provide adequate nurturance and physical care with respect to the newborn child."
In a comprehensive fifty-eight page oral opinion placed on the record on April 26, 2007, Judge Page concluded that M.A. was unable to parent the children, that she would not be able to do so at any time in the foreseeable future, and that termination of her parental rights was in the children's best interest. In reaching that conclusion, Judge Page found the State's expert, Dr. Gruen, credible and did not find persuasive the testimony of defendant's expert, Dr. Bogacki. He also credited the DYFS case workers who testified. Judge Page found that M.A. was "severely mentally ill" as corroborated by her trial testimony which was "rambling at times, incoherent at times, and very indicative of the mental illness . . . diagnosed by Dr. Gruen."
Judge Page found that M.A.'s paranoia led her to deny that the children were hers, and caused her to try to conceal their existence for fear that they would be taken from her. Her efforts in this regard included depriving the children of necessary medical treatment, and giving birth alone on a kitchen floor rather than going to a hospital, so that the birth of K.A. would go undetected. Judge Page also found that K.A., the one child who had lived with M.A., had been psychologically damaged by the experience. Based on a detailed recitation of the evidence, the judge concluded that M.A. was unfit and unable to parent the children, despite efforts by DYFS to provide her with appropriate services, and that the children deserved an opportunity to have permanent placements.
On this appeal, defendant raises the following point for our consideration:
POINT I: THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THE ELEMENTS OF N.J.S.A. 0:4C-15.1(a)(2),(3), AND (4), AND, THE JUDGE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW WERE NOT SUPPORTED BY COMPETENT RELIABLE EVIDENCE. N.J.S.A, 30:4C-15.1(A)(2); N.J.S.A, 30:4C-15.1(A)(3); N.J.S.A, 30:4C-15.1(A)(4).
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. [N.J.S.A. 30:4C-15.1a.]
"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., 161 N.J. 337, 348 (1999). 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).]
Having reviewed the record, we readily conclude that Judge Page's cogent opinion correctly applied the applicable law and is supported by substantial credible evidence, R. 2:11-3(e)(1)(A). Defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Page's opinion. We add the following comments.
We recognize, as did Judge Page, that 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). In situations where a defendant suffers from an intractable mental illness or other condition that, on the individualized facts of the case, has prevented and will continue to prevent the defendant from acting as a parent, the children's need for permanency may prevail over the defendant's parental rights. Id. at 440-41. We understand M.A.'s sincere wish to have children, and we understand, but cannot condone, her desperate efforts to avoid having her children taken from her, at the risk of her health and theirs. But, the record amply reflects that she is not able to act as a parent, and her children are entitled to a chance at a permanent home.