April 16, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
A.S., DEFENDANT RESPONDENT.
IN THE MATTER OF THE GUARDIANSHIP OF D.D., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-52-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 10, 2008
Before Judges Parrillo, S.L. Reisner and Baxter.
Defendant A.S., the biological mother of four-year-old D.D., appeals from the June 12, 2007 order of the Family Part that terminated her parental rights to her son, pursuant to N.J.S.A. 30:4C-15.1(a). The order in question awarded guardianship of D.D. to the Division of Youth and Family Services (DYFS) so that adoption proceedings could commence. The parental rights of D.D.'s natural father, C.D., were also terminated, but he has not appealed.
On appeal, A.S. does not challenge the trial judge's conclusion that DYFS proved by clear and convincing evidence that she endangered her son's safety, health or development by using cocaine while pregnant and by failing to provide a safe, secure and stable home for her son except during the limited periods when she was residing with a relative. Nor does she challenge the judge's conclusion that DYFS presented sufficient proof that she was unable or unwilling to eliminate the harm facing her son and that delaying permanent placement for him would add to that harm. Finally, she concedes that DYFS made reasonable efforts to provide services geared to helping her correct the circumstances that led to her son's placement outside the home. A.S. argues on appeal only that DYFS failed to prove by clear and convincing evidence that it considered alternatives to termination of parental rights and that termination of parental rights would not cause more harm than good. We affirm.
At trial, DYFS presented the testimony of its caseworker and of a psychologist who performed psychological and bonding assessments. A.S. presented the testimony of V.M., a former foster mother of D.D. The record also contains more than 120 pages of treatment records, assessments, lab reports, psychologist reports, visitation reports and contact sheets describing the caseworker's interactions with A.S. Because A.S. has confined her appeal to a portion of N.J.S.A. 30:4C-15.1(a), we limit our discussion of the record to the facts necessary to address the points she raises.
The testimony at trial established that A.S. admitted to using cocaine while she was pregnant. DYFS caseworker Tiffany Cullen testified to A.S.'s non-compliance with both substance abuse treatment and mental health treatment after D.D. was born. In fact, the record shows that A.S. was terminated from a drug treatment program because she failed to show up after the first appointment.
D.D. has lived in six different placements since his birth on January 25, 2004. First he lived with his mother at the home of his maternal great-grandparents. DYFS removed him in March 2005 and placed in a special provider home because his great-grandparents did not honor their commitment to ensure that D.D. not be left alone with his parents. D.D. remained in the special provider home for only a few weeks and was then placed with an aunt on April 1, 2005. From there, he was placed with a cousin, where he remained until the end of December 2005. For the next six months, he lived with V.M., a licensed foster parent, who also owned and operated a daycare center in which D.D. was enrolled.
V.M. was attentive to D.D.'s needs and contacted DYFS to request various assessments. Based on those assessments, D.D. received occupational and speech therapy. Additionally, because of V.M.'s interaction with D.D., his developmental age progressed to twenty-six months, an increase of nineteen months in the six months that D.D. lived with her.
In the fall of 2005, V.M. told DYFS that she wanted to adopt D.D. According to V.M., a DYFS worker informed her that she was too old to do so because, as a rule of thumb, "you could not be more than thirty-seven years older than the child." Consequently, V.M. and DYFS came to a new agreement: if V.M. could find D.D. a permanent home, then she would be permitted to remain in his life as a de facto grandparent and D.D. would continue to attend her daycare center. At that point, V.M. recommended her friend, A.A., who was both an approved foster parent and a special education teacher. DYFS placed D.D. in A.A.'s care and he has remained there ever since.
Approximately two weeks after D.D. was placed with A.A., V.M. learned that the information DYFS had given her about her age was incorrect. Consequently, she contacted DYFS in an effort to regain custody of D.D. At trial, she testified that she is willing to take D.D. back into her care and raise him into adulthood under either a kinship legal guardianship or as an adoptive parent. She expressed her affection for D.D. and her strong desire to care for him.
In her testimony, Cullen described A.S.'s indifferent attitude toward visitation with her son and her lack of involvement with him on those occasions when she did show up. Cullen testified that A.S. never showed up on time or stayed for the full two hours of visitation. Even worse, there were numerous instances when A.S. did not show up at all. When she failed to appear, she never called in advance to give notice. Recognizing that A.S. had difficulties in arranging transportation, DYFS provided transportation to both A.S. and C.D. in order to facilitate their participation in these scheduled visitations. On the occasions when A.S. failed to show up for her visits with her son, D.D. was already there waiting for her. Ultimately, A.S.'s spotty attendance caused DYFS to require her to call and confirm her scheduled visitation one day in advance.
Cullen's testimony also included a description of her observations of D.D.'s interactions with his current foster mother, A.A. Cullen observed him "eating, smiling and playing with the dog." During the observation, A.A. told Cullen that D.D. becomes "clingy" when she drops him off at daycare and that he will ask "if he's coming home." A.A. also described D.D. as "out of sorts when he comes back from visitation" with his parents.
Psychologist, Dr. Alan Gordon, Ed. D., testified as an expert on behalf of DYFS. Gordon has been performing bonding and psychological evaluations for more than thirty-five years. The psychological evaluation that Gordon performed on A.S. consisted of both his clinical interview and a series of psychological tests. He concluded that A.S. "is an individual who has had a history of drug addiction." Her "drug of choice was cocaine, which she started to use eleven years ago." He commented that although DYFS had directed A.S. to seek treatment for her substance abuse problem, she has "steadfastly refused" to do so. He reviewed various excuses A.S. provided, including her claim that she did not have the money necessary to enter a drug treatment program. He concluded that her refusal to pursue drug treatment when she knew it was a condition of regaining custody of D.D. demonstrated a weak maternal bond. Gordon also pointed out that A.S.'s steadfast refusal to submit urine drug screens "raises very serious questions" about the truthfulness of her claim that she had been drug-free for a year. According to Gordon, A.S. "digs in, feels that she can maintain her stance, and demands that her children*fn1 be returned to her care."
Gordon opined that A.S. had the potential to parent D.D. if she were able to successfully address her addiction and achieve stability in her life. Until such time as she accomplished those tasks, A.S. remained, in Gordon's opinion, "not capable of providing a safe environment for her children."
Gordon's evaluation of bonding between A.S., C.D. and D.D. was conducted on September 25, 2006, when D.D. was two years and eight months old. Gordon did not observe A.S. alone with D.D. During the one-hour bonding evaluation, D.D. was "aggressive" and "hyperactive." A.S. and C.D. were "able to interact with him and made attempts to do so."
Based on the bonding evaluation, Gordon opined that there was "insecure bonding" between D.D. and his parents. Gordon testified:
[T]he child enjoyed the interaction with his parents. He enjoyed having the play time with [them] but had no difficulty separating from them. He doesn't look to them for his basic needs, for care, protection, security.
However, the-why we call it an insecure attachment is because he's not looking for those needs. He's more interested in the game and interested in the interaction than he is in looking for them for attention with them.
There was no sign that [D.D.] was clingy.
He wasn't holding onto them. . . . [W]hen he left, he left without-just separated with out any difficulty from them. . . . There was no part of [D.D.'s] desire that he was looking to these parents for anything more than play.
Gordon also conducted a bonding evaluation of D.D.'s relationship with his foster mother, A.A. The first evaluation occurred on September 28, 2006. Because D.D. had only been with A.A. for a period of four months at that time, Gordon concluded that it was "too brief a time to make a definitive statement about bonding" and more time was necessary before he could make more conclusive determinations. He did, however, note that even during the brief period of time he spent with A.A. and D.D., he was able to observe that D.D. was not as "hyperactive or excitable" as he had been with his parents during the session that had just concluded. As Gordon noted, D.D. "was much more in control" of himself.
The second bonding evaluation of A.A. and D.D. occurred on May 1, 2007 at A.A.'s home.*fn2 Gordon described his observations in his trial testimony:
[D.D.] greeted me at the door, wanted to show me his bedroom, wanted to show me his toys, the things that he was doing. I came around five-thirty. They were about to eat dinner and the foster mother sat down and said, okay, [D.D.] would you like to say grace and [D.D.] did. They ate together. [D.D.] then wanted to show me around the house, his back yard. . . . [T]hey have a behavior chart on the refrigerator door which is more like a behavior modification type program. He gets stars when he does things and, if he gets a number of stars, he gets a treat. And she's trying to work with him to modify behavior of hitting, acting out, and being aggressive, or being rough with other children.
In D.D.'s interactions with A.A, Gordon observed that D.D. was very affectionate. D.D. called his foster mother "mommy" and "he would go to the foster mother for a hug or to give her a hug which wasn't observed with his interaction with his birth parents. And she in turn was very affectionate with him. You know, making sure there was contact, kissing him. [D.D.] was very much at ease in this environment." According to Gordon, the foster mother met all criteria for bonding and attachment.
Gordon opined that D.D. had lived with his foster mother for a year at that point and had "found a great deal of security" in that home. If D.D. were to be removed from A.A.'s home, Gordon opined that D.D. would need "something of equal or greater proportions. He needs someone who can provide for him this kind of stability."
Gordon also opined that D.D.'s diagnosis of attachment disorder increased the potential for harm if he were removed from A.A.'s care. Because D.D. was at a point where he had formed an attachment, the breaking of such attachment would further set D.D. back, so he would "need another environment that could offer him the same type of parenting" that he was receiving from A.A. Gordon further stated, "[T]he child has had great difficulty forming attachments in school and in home. He has finally formed an attachment with the foster mother and breaking that attachment with a special needs child is going to present great difficulty." He explained:
[For a] child with this type of disorder, and any child for that matter, permanency is very important. They establish a foundation from which to function. And children who are raised without permanency . . . they have all kinds of problems. They have defective conscience. They act out. There is school problems, learning problems later in life, legal problems. So the chances of children who don't have permanency being raised in that kind of environment creates great problems later on in their lives.
Gordon described D.D.'s attachment with his foster mother as a "secure attachment." This bond was significant because of D.D.'s difficulties with forming attachments. Gordon opined that D.D. viewed his foster mother as his psychological parent:
The present caregiver is an excellent caregiver. I mean, she really is providing [D.D] with everything he needs, more than food, clothing and shelter. I mean, she is a special education teacher and she knows what his difficulties are and [is] addressing them on a daily basis. . . . Do I feel that [D.D.] should remain where he is presently? Yes, I do.
According to Gordon, D.D. would suffer harm if removed from A.A. Specifically, Gordon stated: "[D.D.] has been in the foster care system now . . . for more than half his life . . . . He's finally, in my opinion, found a very consistent, stable home that's offering him what he needs in terms of that care and his special needs. So I think removing him is going to certainly be a setback for him." Gordon opined that D.D. could "very possibly" suffer irreparable harm if he were detached from his foster mother. Gordon said "very possibly" because "there's no guarantee what he would do," but based on his knowledge, D.D.'s setback would be "very, very significant." Gordon also acknowledged that services, such as psychotherapy and an Individualized Education Plan, could be put in place to ameliorate the harm; however, there would still be "a significant problem with this child because of the loss of that parent."
Based on his parenting assessment of A.S., Gordon opined that A.S. did not have "the ability and wherewithal to manage the home and to remediate the harm . . . that would visit [D.D.]" if he were removed from A.A.
A.S. did not testify nor did she present any expert testimony. She did, however, present V.M. as a witness. V.M. testified to her history with D.D. and maintained that the only reason she relinquished care of D.D. and returned him to DYFS was because DYFS told her she was too old to adopt him. She testified that she was willing to take D.D. back into her care and raise him into adulthood under a kinship legal guardianship or as an adoptive parent. She explained that she is able to take care of him and loves him.
After V.M.'s testimony concluded, DYFS recalled Cullen as a rebuttal witness. She testified on rebuttal that V.M. voluntarily relinquished custody of D.D. because she was "still scared about her age." According to Cullen, V.M. felt it would "be in [D.D.'s] best interest to leave the home and be placed with the current caregiver," A.A. Cullen further testified that to the best of her knowledge, DYFS had no policy of prohibiting adoptions based on an adoptive parent's age. Nor was she aware of any efforts made by any DYFS caseworker to discourage V.M. from adopting D.D. because of her age.
In an oral decision covering thirty transcript pages, the judge made detailed and comprehensive findings of fact and concluded that DYFS satisfied the contested prongs of N.J.S.A. 30:4C-15.1(a). Accordingly, the judge terminated the parental rights of A.S. to D.D., clearing the way for D.D.'s foster mother, A.A., who has provided him with a nurturing and stable home ever since April 2006, to adopt him.
First, the judge explained his conclusion that DYFS had explored alternatives to adoption. The judge determined that the maternal grandparents, who reneged on their commitment to ensure that A.S. and C.D. did not have unsupervised access to their child, were not suitable and did not offer D.D. permanency. The judge also pointed to DYFS's consideration of two other relatives. One was paternal aunt P.G., who had custody of D.D. for only two months but relinquished custody voluntarily. Another relative, J.C. did likewise. The judge also observed that when A.S. was asked to provide other possible resource families that could care for D.D., she refused to offer any alternatives other than V.M.
The judge also ruled out V.M. Although he concluded that she was potentially a suitable caregiver, if she were to adopt D.D., it would require D.D. to be moved yet again. The judge accordingly did not view adoption by V.M. as a suitable alternative to the termination of A.S.'s parental rights.
The judge also concluded that termination of A.S.'s parental rights would not do more harm than good. He described A.S.'s relationship with her son as follows:
The parents have had no involvement with this child as custodial parents. The parents know this child and the child knows these parents as a plaything. They know the child to the degree of familiarity as someone to play with but the child does not look to this parent as a parent who is secure, who will provide [him] with food, shelter, clothing and guidance.
I don't believe that the birth parents . . . offer any hope for this child from the standpoint of being able to provide a safe, secure, stable home and offer nurturing and guidance to D.D.
In contrast, the judge concluded that A.A. was extremely well-attuned to D.D.'s needs, had been meeting those needs successfully and that removing D.D. from her care would cause him harm. The judge stated:
The bonding evaluation [found] emotional and psychological attachment between [D.D.] and [A.A.]. There is no question that [D.D.] is establishing a very close, warm relationship with [her].
There is a sense of trust in that relationship. [D.D.] looks to [A.A.] for his basic needs. She was observed to be affectionate with [him]. [D.D.] has attachment disorder. He has many fears. The foster mother is able to recognize those fears and address them. There is no question that she is dedicated to the child and wants to adopt him.
There will be great concern if [D.D.] from to be removed from this environment.
I find that the termination of parental rights would not cause more harm than good. I believe that there is no realistic bond [with] the birth parents.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial court's credibility determinations and its feel of the case based upon its opportunity to see and hear the witnesses. Indeed, a trial court's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." K.H.O., supra, 161 N.J. at 346. However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hearn, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 599 (1986).
In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.
New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves 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 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 four statutory 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." K.H.O., supra, 161 N.J. at 348.
Here, A.S. stipulated in the trial court that the first two prongs were satisfied. Likewise, she agreed that DYFS, as required by the first portion of the third prong, had made reasonable efforts to provide services to help her correct the circumstances that led to D.D. being placed outside of her home. She contends, however, that DYFS failed to prove that alternatives to termination of parental rights had been considered and properly rejected. We disagree.
The judge's findings amply demonstrate that DYFS and the court itself considered and rejected three relatives as alternatives to termination of A.S.'s parental rights. Our careful review of the record satisfies us that the reasons for doing so were legitimate and were grounded in substantial and credible evidence in the record.
Although the trial court recognized that V.M. had provided suitable care for D.D., we agree with the judge's conclusion that removing him from A.A. and giving him to V.M. would not have changed the ultimate result because termination of parental rights would have resulted whether D.D. was placed with V.M. or A.A. for adoption. A.S. argues that the court erred when it disregarded V.M. in favor of A.A. as an adoptive mother for D.D. We agree with DYFS's argument and the court's conclusion that once the statutory standard for termination of parental rights is satisfied, as it is here, a parent's request that a particular adoptive parent be selected is not entitled to consideration. A.S.'s arguments to the contrary lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Moreover, we agree with DYFS that "A.S. offered no testimony or other evidence to suggest, much less support, that it is to D.D.'s permanent advantage to be adopted by V.M."
In light of the proofs presented, we are satisfied that the judge correctly determined that DYFS had considered all available alternatives to adoption. Accordingly, the second portion of the third prong of N.J.S.A. 30:4C-15.1(a) is satisfied.
We turn next to A.S.'s contention that DYFS did not prove the fourth prong of N.J.S.A. 30:4C-15.1(a), namely that termination of parental rights will not do more harm than good. In support of that argument, she contends that the bonding evaluation that Gordon conducted was fatally flawed because Gordon failed to make any observations of her interaction with D.D., but instead chose to evaluate A.S. and C.D. together.
We accept the trial judge's finding that the testimony of Dr. Gordon was credible. As we have observed, we are obliged to accord deference to a trial judge's credibility determinations and the judge's feel of the case based upon his or her opportunity to see and hear the witnesses. Indeed, a trial court's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms, supra, 65 N.J. at 484. Here, the record contains uncontroverted testimony from Gordon that the manner in which he conducted the bonding evaluation satisfies accepted professional standards. The trial judge specifically found Gordon to be a credible witness. We defer to that finding. Ibid.
We are satisfied that the evidence in the record amply satisfies the fourth prong of the statute. Dr. Gordon's undisputed testimony establishes that D.D. is receiving appropriate and nurturing care from A.A., that she and D.D. have a significant bond, and that D.D. would suffer present and ongoing harm if removed from her care, especially in light of the attachment disorder from which he suffers. We also concur in his determination that A.S. has an "insecure bond" with her son and is unable to address and satisfy his needs. We are satisfied DYFS proved the fourth prong by clear and convincing evidence. We accordingly conclude that the proofs presented at trial amply satisfied DYFS's heavy burden under N.J.S.A. 30:4C-15.1(a).