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


February 22, 2008


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG 02-80-06.

Per curiam.



Submitted January 24, 2008

Before Judges Lisa, Lihotz, and Simonelli.

Defendant, G.M., appeals from a Family Part judgment terminating her parental rights to her daughter, K.N., and awarding guardianship of K.N. to the Division of Youth and Family Services (DYFS or Division) for the purpose of consenting to adoption. The guardianship judgment also terminated the parental rights of M.B., the child's father. M.B. has not appealed that determination.

On appeal, G.M. urges reversal of the trial court's decision arguing the Division failed to prove, by clear and convincing evidence, that G.M. harmed her child and that DYFS extended sufficient services to G.M., each of which is a necessary element to end the parent-child relationship. N.J.S.A. 30:4C-15.1(a). Further, G.M. contends the trial court's decision impermissibly relied upon hearsay to reach the legal conclusions. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we conclude that the trial court's findings are supported by clear and convincing evidence and its conclusions predicated on those findings are legally sound. We affirm.

When reviewing judgments to terminate parental rights, we remain mindful that the federal and state constitutions protect the integrity of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Nevertheless, the state's role of parens patriae historically imposes a responsibility to protect the welfare of children from the probability of serious physical, emotional or psychological harm resulting from the actions or omissions of their parents. N.J. Div. of Youth and Family Servs. v. C.S., 367 N.J. Super. 76, 110 (App. Div.), certif. denied, 180 N.J. 456 (2004). See also N.J.S.A. 9:6-8.8a. Thus, the fundamental right of a parent to enjoy a relationship with a child is not absolute. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed. 2d 599, 606 (1982); In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 404 (1999); In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

Our Legislature has recognized that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:

(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-15.1(a).]

These requirements are not discrete, but overlap to provide a composite picture of what may be necessary to advance the best interests of the children. The considerations involved in determining parental fitness are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 346-48.

We must defer to a trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth and Family Servs. v. P.P, 180 N.J. 494, 511 (2004); 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. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). There is an exception to that general rule of deference: we expand the scope of our review where the issue to be decided is an "alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." J.T., supra, 269 N.J. Super. at 189. Despite such circumstances, deference will still be accorded to the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken. Id. at 188. With these standards in mind, we proceed with our analysis.

G.M., a native of Cape Town, South Africa, emigrated to the United States at age thirty-four in 1995. Since her teenage years, G.M. has been involved in abusive and violent relationships. G.M. reports she suffered abuse: at age nineteen, while residing with her aunt and uncle; at the hands of the father of her two older children during their fifteen-year relationship; while married to her estranged husband; and during her relationship with M.B., K.N.'s father.

K.N. was born on May 7, 2001. On August 1, 2002, a worker at the Inter-Religious Fellowship Family Shelter in Englewood, New Jersey, notified DYFS. The worker explained the shelter was discharging G.M. because she abused alcohol, and exhibited erratic behavior, with drastic mood swings resulting in altercations with other families in the shelter.

The Division caseworker interviewed G.M. and explained that DYFS would not allow K.N. to sleep on the streets. G.M. admitted that she had an alcohol problem and handed K.N. over to the worker stating, "Just take her. I'll be better off." When the caseworker presented the available alternative living arrangements, G.M. stated "that if someone made her live in a hotel she would kill herself." The police were called to escort G.M. to the hospital for a psychological evaluation and the Division exercised an emergency removal of K.N., pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6.30. DYFS obtained medical care for the child, who suffered a fever and ear infection, then placed K.N. in the home of D.V. and J.V., her current foster parents.

DYFS initiated a Title 9 action seeking custody, care, and supervision of K.N. After appointment of counsel, G.M. agreed to participate in a psychological evaluation that identified her uncontrolled anger and alcohol abuse, which impaired her judgment and decision-making. G.M. was not a danger to herself or her child, however, she suffered from psychological conditions that needed treatment.

One therapist, Eleanor Stucker, LCSW, reported:

[G.M.] is a woman with poor impulse control, poor judgment and poor interpersonal skills who has few friends. . . . She is not psychotic although her thinking is sometimes paranoid and guarded. . . . The loss of her family in South Africa, the domestic violence, and the loss of her two-year-old daughter, [K.N.,] has increased her depression. This depression has contributed to her uncontrollable anger. Therefore, at this time, reunification is not recommended due to her inability to protect her daughter should she become involved with another violent and abusive partner.

DYFS initiated services to address G.M.'s needs. G.M. complied with the various services which included: group and individual counseling to address her depression, anger management therapy, medication maintenance prescribed after a psychiatric evaluation, substance abuse rehabilitation and urine screens, and supervised visitation with her daughter. G.M. obtained work as a home health aide and maintained a one bedroom apartment. On July 24, 2003, the court granted G.M. unsupervised visitation with K.N., including overnights and weekends.

G.M. continued therapy, remained substance-free, and compliant with her medication and other services. As a result, on February 9, 2004, Stucker reported:

[G.M.] has demonstrated a better understanding of her daughter's needs. She realizes that her feeling depressed caused her anger in the homeless shelter. She was homeless, had broken off her relationship with [K.N.'s] biological father and had financial stress. She has no more suicidal thoughts. She has no appetite or sleep problems. She is oriented in time, place and person. Her affect is happy. She is no longer socially isolated and spends her weekends with friends. She no longer presents as a risk to her daughter. [G.M.] has used treatment well.

Ultimately, on March 4, 2004, the litigation was terminated, mother and daughter were reunited and K.N. returned to G.M.'s care. The Division continued its involvement to extend counseling services, provide childcare costs, pay transportation expenses, and aid G.M. to obtain financial assistance. G.M. allowed D.V. and J.V. to continue contact with K.N. and to baby sit her.

On November 19, 2004, the Division received another referral after the police were called to G.M.'s apartment. G.M. was drinking and stabbed her boyfriend. G.M. admitted to a Division caseworker that she and her boyfriend had been drinking beer. She became upset when he stated he was leaving her. G.M. stated that "she ran into the house and blocked the door" and said to her paramour "you are not leaving" and "I am not going to let you leave." G.M. then ran into the kitchen and grabbed a brown knife. She insisted the stabbing was "an accident." As a result of the stabbing, G.M. was arrested and jailed.

K.N. was present during the altercation between G.M. and her boyfriend. G.M. asked the police to call K.N.'s former foster parents to provide for her daughter. K.N. was removed and the Division filed its second verified complaint alleging abuse and neglect. K.N. remains in the care of J.V. and D.V.

On January 26, 2005, G.M. pled guilty to aggravated assault with a deadly weapon. She was sentenced to sixty-nine days imprisonment and two years probation, and ordered to attend anger management counseling and parenting courses.

G.M. waived her right to a fact-finding hearing. She stipulated she stabbed her paramour while K.N. was in the home, that she was arrested and incarcerated as a result of that incident making her unable to care for K.N. thereby necessitating DYFS's removal of the child. G.M. requested the Division explore the possibility of placing K.N. with her maternal grandmother, L.N., who resided in South Africa.

The Division initiated an international home study to evaluate placement and possible adoption of K.N. by L.N. At the Division's request, L.N. sent written confirmation expressing her intent to provide a home for K.N. The international home study was finally completed. The report confirmed L.N. raised G.M.'s two older children. The evaluator concluded that L.N. and her family live a very stable and disciplined life and that L.N. is capable of raising another child despite her age. Thereafter, the Division notified L.N. that she had been ruled out as a caretaker for K.N. based upon its psychologist's expert opinion that it was not in K.N.'s best interest to be removed from her current foster home. L.N. did not appeal that determination.

After G.M.'s release from jail, it was recommended that she participate in psychiatric and substance abuse evaluations, counseling to address these concerns, and engage individual psychotherapy. G.M. opposed a voluntary surrender of her parental rights to allow J.V. and D.V. to adopt K.N. The Division recommenced supervised visitation between G.M. and K.N. G.M. was unemployed and homeless. On November 3, 2005, G.M. was again hospitalized after she overdosed on pills.

At that point, the Division changed its permanency goal for K.N. The January 26, 2006 permanency order approved DYFS's plan to terminate parental rights and pursue foster parent adoption. In rendering his decision, the Family Part judge stated: "Mother has not completed substance abuse treatment or therapy, which are needed due to her history of substance abuse & incarceration." The Family Part judge further enumerated the Division's reasonable but unsuccessful efforts to finalize reunification including: psychological, psychiatric and substance abuse evaluations and treatment, domestic violence counseling, bus passes, supervised visits, international home study, and attempts to locate K.N.'s father. The Division commenced this guardianship litigation, pursuant to N.J.S.A. 30:4C-15, on March 30, 2006.

At trial, held February 26, 2007, DYFS presented testimony from its caseworker, Lindsay Mangarelli, who related DYFS's involvement with K.N. and the services extended to G.M. The Division also presented its clinical psychological expert, Frank J. Dyer, Ph.D., who completed a psychological assessment of G.M. and performed bonding evaluations between K.N., her mother and foster parents. The Division introduced ninety-seven exhibits, which included its case file from July 2001 to February 2007, counseling reports, urine screen results, substance treatment records, G.M.'s hospitalization records, K.N.'s medical records and reports from her therapist, various expert assessments and evaluations, Dr. Dyer's evaluations, the international home study, G.M.'s arrest record, reports after home visits with J.V. and D.V., and inquiries regarding the whereabouts of M.B. G.M. presented no expert testimony. She testified on her own behalf.

Dr. Dyer explained his assessment tools and interview techniques, which were adjusted to accommodate G.M.'s "less than adequate command of the English language." Referring to his report, which was marked into evidence, he identified the written materials he reviewed to provide "a context for the current clinical assessment of [G.M.]" before he began his evaluation.

During the clinical interview, G.M. admitted her past alcohol consumption of two cans of beer per weekday and twelve cans per night on weekends. Dr. Dyer stated G.M. failed to recognize how her history of alcohol abuse and domestic violence impacted K.N. He noted that G.M. minimized the stabbing incidents with M.B. and her recent paramour and she "did not say anything . . . during the entire interview that would lead me to believe that she has any kind of appreciation of the impact that such an incident would have on a young child."

In regard to her inability to control her anger, G.M. described herself as "an angry person" and admitted to "blowing up." Dr. Dyer explained:

[t]he implications of this type of pattern of behavior as I learned in my interview individually with [K.N.] after the bonding assessment, this affected her directly. The implications of such a pattern in a caretaker are that any child in the person's care would be subjected to unpredictable episodes in which the parent expressed a great deal of anger and this would be regardless of the child's behavior and having more to do with whether the parent is feeling some sort of inner tension that eventuated in this explosion of anger and this is something that is extremely psychologically destructive for a child.

Dr. Dyer concluded G.M. suffered from alcohol dependence; depressive disorder, for which she was being treated with Paxil; and borderline personality disorder, "the hallmark [of which] is emotional instability." Projective testing yielded results consistent with the impression that G.M. had poor impulse control, low self-esteem, deficient self-concepts, and gaps in her capacity to interpret reality. Dr. Dyer offered other potential diagnoses, including bi-polar disorder and organic brain dysfunction that needed to be ruled out by further study.

Dr. Dyer's overall impression of G.M. was that she has a great deal of poorly controlled aggression that sometimes manifests itself in retroflexed form so-called. In other words the aggression and the anger is turned back on the self in the form of a major depressive episode and sometimes manifests itself in physical attacks upon others . . . . Also [G.M.] impressed me as really having very little understanding of the needs of a young child and in particular her daughter [K.N.]. [G.M.] also impressed me as having poor impulse control, a limited capacity to anticipate the consequences of her actions as reflected in her history of arrests and also [G.M.] impressed me as having a very severe and chronic problem with alcohol dependence, with frequent relapses that . . . play a role in the criminal side of the picture.

Dr. Dyer discussed the bonding evaluations conducted between K.N. and G.M., and K.N. and her foster parents. Significant in the evaluation of mother and child was G.M.'s limited "understanding of the needs of her child."

[G.M.'s] behavior toward the child in the bonding assessment was really limited to her demanding things of the child, her explaining things to the child, sort of giving her terse orders as to how she should be playing with various items that were available to her. It was a rather unengaged, cold, mechanical and joyless type of interaction with the child with no recognition of any type of emotional give and take that is typical or that would be nurturing or helpful to the child and interestingly was matched by [K.N.'s] behavioral presentation in a very low key state during that particular observation.

Dr. Dyer concluded that to a reasonable degree of psychological certainty, G.M. was "not capable of taking care of [K.N.] adequately" and based on G.M.'s psychological problems and alcohol dependence with frequent relapses, "the child would actually be at very high risk for physical abuse or some kind of traumatic experience that involved [G.M.] acting out" if returned to G.M.'s care. Although K.N. loved her mother, her relationship is "ambivalent" due to the "experienced trauma and disappointment and loss all associated with contact with [G.M.] . . . . [She] does not represent the type of attachment figure to whom the child can turn for comfort[] when she is in distress or to whom she can turn for protection during times of perceived danger."

On the other hand, a "dramatically different" relationship was observed between K.N. and her foster parents.

The foster parents were able to respond appropriately in their play with this preschool child. They were having fun interacting with her. [K.N.] displayed a great deal of enthusiasm in playing with [them] . . . . She presented as happy, she was having fun, she was secure, everything that one would expect from an interaction between a child and parents from whom the child was never separated.

Finally, Dr. Dyer explained that K.N. was "an extremely vulnerable child." She was vulnerable to future psychological problems. She internalizes and feels "nervous, anxious, sad, and worried" having experienced early trauma living in shelters, moving from place to place, having her mother be unavailable to her, reuniting with her mother, and again being removed from her care.

Although the child had a bond with her mother, Dr. Dyer related the impact on K.N. if G.M.'s parental rights were terminated:

First, [K.N.] would feel a sense of relief if all of the adults in her environment told her you are going to stay here and it's going to be permanent, you will never be moved, we can now promise you that because the whole matter has been settled and no social worker or caseworker is going to come to take you away from us. That would impart a great sense of security to this child.

The second impact would be if the foster parents then the adoptive parents under this scenario, if they chose to completely exclude [G.M.] from the child's life, [K.N.] would experience a loss that would be painful to her. It's my opinion that it would not be the type of disorganizing catastrophic loss that would result in a vulnerability to severe problems, but the child would experience a loss.

Dr. Dyer opined K.N. would suffer a great loss if separated from her foster parents, who she views as "her attachment figures" because this would represent yet another disruption in the continuity of care in a child who has had a rather unfortunate history of such disruptions . . . . [B]ecause of [K.N.'s] attachment to her foster parents, this would have a catastrophic effect on her that she has managed to develop stability and security and a close bond with her foster parents and to have that ripped away from her that would really be devastating for her and it would result in a regression in her functioning, a heightening of her anxiety level, and further deficit in her capacity to attach and also deficiencies in the areas of self-esteem and self-confidence.

Dr. Dyer rejected G.M.'s plan to regain custody and allow continued visitation with the foster parents, as she was not yet ready to assume care of the child and the child needed stability now. Additionally, he believed the proposal to send K.N. to live with her grandmother in South Africa would visit trauma on the child by severing her ties to her foster family, creating yet another disruption in the child's continuity of care, and because L.N. is a complete stranger to K.N.

G.M. testified at trial. She explained that since February 17, 2006, she has resided at Eva's Village where she receives anger management, sexual abuse counseling, substance abuse rehabilitation, and psychiatric treatment. G.M. reached the final phase of the program and anticipates completion in approximately six months. She regularly takes her medication, and remained sober for one year. G.M. expressed her love for her daughter and explained K.N. could live with her at Eva's Village. Once she graduates, G.M. will work full-time as a home health aide to support herself and K.N. Alternatively, G.M. stated she would like K.N. to live with L.N. She expressed her desire to return to South Africa, upon completion of her rehabilitation, as it is her homeland and her family resides there. As to the foster parents, G.M. stated that she did not trust them because they were trying to adopt her child.

On March 12, 2007, the trial judge rendered a written decision. He concluded the Division had satisfied, by clear and convincing evidence, each of the four statutory prongs of the statutory test, concluding K.N.'s best interests were served by awarding guardianship to DYFS. He entered a judgment terminating the parental rights of G.M. and M.B.

G.M. maintains the court's decision incorrectly relied on hearsay evidence. She cites two examples. First, Mangarelli was not assigned to this case until May 2006, therefore, she had no direct knowledge of the events set forth in the Division's records. Second, Dr. Dyer bottomed his opinion on "what others had told him."

No trial objection was made to the testimony now challenged. Accordingly, "an appellate court will not reverse an error not brought to the attention of the trial court unless the appellant shows that it was 'plain error,' that is, 'error clearly capable of producing an unjust result.'" N.J. Div. of Youth & Family Servs. v. B.H., 391 N.J. Super. 322, 343 (App. Div.), certif. denied, 192 N.J. 296 (2007) (citing R. 2:10-2). We determine no error occurred, and we reject these arguments.

G.M. does not enumerate the specific statements made by Mangarelli she finds objectionable; she merely generalizes that the caseworker's testimony was hearsay. G.M.'s testimony was factually disparate from the Division's records on certain events. For example, G.M. insists that she was not drunk on the evening she was evicted from the shelter, that her disagreement with another resident occurred because another child struck K.N., and that the 2004 stabbing was an accident. However, even accepting G.M.'s version of these incidents will not change the result. It remains undisputed that the shelter asked G.M. to leave, and the police arrested and jailed G.M. after the 2004 stabbing. Each event necessitated that the Division exercise an emergency removal of K.N.

Further, despite Mangarelli's lack of first-hand knowledge of the Division's involvement with G.M. and K.N., her recital of facts recorded in DYFS's records provided the extent and nature of services offered and the events supporting the need for those services, precisely the information permitted to be introduced by Rule 5:12-4(d). Div. of Youth & Family Servs. v. J.T., 354 N.J. Super. 407, 414 (App. Div. 2002), certif. denied, 175 N.J. 432 (2003). These facts were confirmed by other evidence presented. Rule 5:12-4(d) allows the Division to "submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 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."

Also, we reject the challenges to Dr. Dyer's assessment that information provided prior to his interview with G.M. N.J.R.E. 703 allows an expert to relate those documents reviewed when presenting his expert opinion so long as the facts or data relied upon must be "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." References by Dr. Dyer were not to the opinions of non-testifying experts that he adopted as his conclusion, but rather to case-history documents that were part of the Division's institutional record regarding its involvement with G.M. and L.N. Dr. Dyer provided very detailed testimony of his clinical expert findings resulting from projective testing, the clinical interview with G.M., the bonding evaluation sessions, and his interview with K.N. The reviewed material furnished undeniable factual background, aiding Dr. Dyer's formulation of the opinion he offered. We discern no flaw in the use of these documents.

Finally, addressing G.M.'s challenge to the weight of the evidence, our review discerns repeated harms to K.N. resulting from her mother's substance abuse and psychological disorders. The disruption to the child's security and safety caused by G.M.'s conduct cannot be overlooked. To her credit G.M. worked very hard to reunite with her daughter from 2002 to 2004. However, when the Division stepped away, G.M. stopped taking her psychiatric medication, slipped back into alcohol abuse, involved herself in another violent altercation resulting in her incarceration and K.N.'s second removal.

A year passed from the date of this incident before G.M. entered a residential treatment program to address the causes of her harmful behavior. Even at the trial, she admitted she had at least another six months before her graduation. While G.M. was addressing her needs, K.N. remained in foster care. The trial judge determined that K.N. "had become attached to he[r] foster parents with whom she had lived from when she was fifteen[-]months old until she was thirty-three months and from when she was forty-five months old until the present when she is seventy[-]months old." Dr. Dyer unequivocally stated that removal from D.V. and J.V.'s home would cause the child significant enduring harm.

"A child is not chattel in which a parent has an untempered property right" and should not "be held prisoner of the rights of others, even those of his or her parents. C.S., supra, 367 N.J. Super. at 110-111. New Jersey's strong public policy favors permanency. K.H.O., supra, 161 N.J. at 357. The emphasis of the Federal Adoption and Safe Families Act of 1997, 42 U.S.C.A. § 103(c)(4), shifts from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. See N.J.S.A. 30:4C-15; see also C.S., supra, 367 N.J. Super. at 111. Children have an essential and overriding interest in stability and a permanent home. J.C., supra, 129 N.J. at 26. The Division's effort to reunite G.M. and K.N. failed. K.N.'s best interests require that she remain in the permanent, safe, and stable home of her foster parents and that G.M.'s parental rights be severed. In re Guardianship of K.L.F., 129 N.J. 32, 43-44 (1992); C.S., supra, 367 N.J. Super. at 110.



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