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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 23, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.S. AND J.M., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-339-04.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 11, 2008

Before Judges Yannotti and LeWinn.

L.M. appeals from an order entered by the Family Part on February 20, 2007, which terminated her parental rights to two minor children, M.S. and J.M., and awarded guardianship of the children to plaintiff, the Division of Youth and Family Services (Division). We affirm.

M.S. was born on December 25, 1996, and his sister J.M. was born on December 11, 1997. L.M. is the birth mother of these two children, and L.S. is their birth father. L.M. and the children initially resided in New York City and were under the supervision of New York's Administration for Children's Services (ACS). L.M. was diagnosed with severe depression and borderline personality disorder and in August 1999, the children were removed from her care.

The children were returned to L.M. in April 2000, after she complied with out-patient psychiatric treatment and accepted homemaker services. However, the children's reunification with L.M. was contingent upon her attending counseling, taking her medication, cooperating with homemaker services, and following through with services for M.S., who previously had been found to be violent and aggressive.

In May 2001, the ACS again removed the children from L.M.'s care when she was admitted to the psychiatric unit at Brookdale Hospital after she had become enraged while waiting in the emergency room for medical attention. L.M. was diagnosed with organic mania, rule-out bipolar mania,` and hyperthyroidism. She was discharged from the hospital with prescriptions for three mental health medications, specifically Depokote, Respidal and Propranolol. After a court hearing, the judge permitted the children to be returned to L.M.'s care on the condition that she take her prescribed medication and attend a day-program. The children were returned on June 19, 2001.

In October 2001, the ACS received a report that L.M. had entered a hospital with abdominal pains and brought the children with her to the hospital. The ACS also learned that L.M. had no medical insurance. In November 2001, L.M.'s psychiatrist reported that she seldom kept her appointments. L.M. also missed many appointments with her therapist. The homemaker reported that L.M. had used some of the family's food money to purchase clothes and a bottle of liquor. L.M. denied those allegations, but admitted that she had not had her prescriptions re-filled because her Medicaid benefits had not been activated. In December 2001, L.M. refused homemaker services and mental health therapy. At that time, L.M. again admitted that she had not been taking her prescribed medication.

In March 2002, L.M. left her publicly-subsidized apartment for a shelter in the Bronx because she felt threatened by L.S., her landlord, and the neighbors. L.M. was scheduled to appear in court on a domestic violence complaint that she filed against L.S. but when she saw L.S. in court, she left and went to her mother's home in Irvington, New Jersey. The ACS contacted the Division and asked the Division to check on the family. The Division found no evidence of abuse or neglect but opened a case for supervision and arranged for the housing of L.M. and the children in a shelter in Newark.

The Division remained involved and provided services in an effort to keep the family intact. In April 2003, the Newark Police Department informed the Division that L.M. left the children alone at Harmony House, a transitional living facility, where the family was living. L.M. admitted that she left the children unattended while she went to have a few drinks with her friends. In May 2003, the Division removed the children from L.M.'s care because she had not been compliant with her mental health treatment, failed to renew prescriptions for her medications, and had rejected home aide services.

On May 20, 2003, the Division filed a protective services complaint and on that date, Judge Craig R. Harris entered an order authorizing the immediate removal of the children. The children were placed with their maternal grandmother; however, in August 2003, the children were removed from the maternal grandmother's home after she reported that L.M. had engaged in certain harassing behavior. Consequently, the children were placed in separate foster homes. In February 2004, the children were placed together in another foster home.

On May 20, 2004, the Division filed a complaint seeking the termination of L.M.'s and L.S.'s parental rights. Thereafter, the children's foster mother asked that the children be removed from her care because they had been disruptive. The children again were placed in separate foster homes. In November 2005, the children were placed with their paternal grandparents in Brooklyn, New York. On March 28, 2006, L.S. voluntarily surrendered his parental rights to his parents.

The trial on the Division's complaint commenced on September 18, 2006 and continued on various dates until February 20, 2007, when Judge Harris rendered a decision from the bench finding that the Division had proven by clear and convincing evidence all of the criteria under N.J.S.A. 30:4C-15.1(a) for the termination of L.M.'s parental rights. The judge also approved the Division's plan for the adoption of the children by their paternal grandparents. Judge Harris entered an order on February 20, 2007 memorializing his decision. On April 3, 2007, the judge placed a supplemental decision on the record.

On appeal, L.M. raises the following arguments for our consideration:

THE TRIAL COURT'S DECISION TERMINATING THE PARENTAL RIGHTS OF L.M. TO M.S. AND J.M. WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND SHOULD BE REVERSED.

1. THERE WAS NO CLEAR AND CONVINCING EVIDENCE THAT M.S. OR J.M.'S HEALTH OR DEVELOPMENT HAD BEEN OR WILL BE ENDANGERED BY THEIR PARENTAL RELATIONSHIP WITH L.M.

2. L.M. DID NOT HARM M.S. OR J.M. AND IS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THEM; NO HARM WILL COME FROM SEPARATING THE CHILDREN FROM THEIR RESOURCE FAMILY.

3. [THE DIVISION] FAILED TO [MAKE] REASONABLE EFFORTS TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT OUTSIDE THE HOME AND FAILED TO CONSIDER ALTERNATIVES TO TERMINATION.

4. TERMINATION OF L.M.'S PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

Having thoroughly reviewed the record, we are convinced that L.M.'s arguments are without merit. Therefore, we affirm the termination of L.M.'s parental rights to M.S. and J.M. substantially for the reasons stated by Judge Harris in the decisions that he placed on the record on February 20, 2007 and April 3, 2007. R. 2:11-3(e)(1)(A). We add the following comments.

It is well-established that a parent has a fundamental right to enjoy a relationship with his or her child. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, "[p]arental rights, though fundamentally important, are not absolute." Id. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid.

That standard requires that an individual's parental rights not be terminated unless the Division establishes by clear and convincing evidence each of the following 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 [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-15.1(a).]

These 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.

In this appeal, L.M. argues that the judge erred by finding that the Division met its evidentiary burden under the best interest standard for the termination of her parental rights. In considering these contentions, we note that the scope of our review of a trial court's factual findings is limited. Such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).

The trial court's findings of fact "'should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Furthermore, because judges in the Family Part have special "expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413.

In this case, Judge Harris found that the Division had proven by clear and convincing evidence that the children's "safety, health or development has been or will continue to be endangered by the parental relationship" with L.M. N.J.S.A. 30:4C-15.1(a)(1). Notwithstanding L.M.'s arguments to the contrary, there is sufficient evidence in the record to support that finding.

Indeed, the record shows that L.M. was inconsistent with pursuing mental health treatment and taking prescribed medication. She also left the children unattended to go out drinking with her friends. By her own admission, L.M. abused drugs and alcohol until the summer of 2005. L.M.'s failure to provide the children with a safe and secure home led to their placement in foster care. At times, L.M. treated the children inappropriately during visitations. She disrupted the children's first foster-home placement, leading to further disruption in the children's lives.

Judge Harris additionally found that the Division had established by clear and convincing evidence that L.M. 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." N.J.S.A. 30:4C-15.1(a)(2). The record supports that finding.

In the decision that he placed on the record on April 3, 2007, the judge noted that since 2003, L.M. has been seen by three psychologists and two psychiatrists and none thought that she could capably parent the children. The judge further noted that L.M. had not provided the children with a safe and stable home and her non-compliance with mental health and court-ordered services impaired her ability to care for them in the future.

Moreover, Dr. Ernesto Perdomo testified that the children have already been significantly traumatized by their relationship with L.M. and the various foster home placements. Dr. Perdomo stated that the harm could be mitigated by providing the children with a stable permanent placement. The doctor opined that adoption by the paternal grandparents offered the children the safe and stable situation that is required to mitigate the trauma.

Judge Harris also found that evidence clearly and convincingly established that the Division made reasonable efforts to assist L.M. in addressing the circumstances that led to the placement of the children in foster care. N.J.S.A. 30:4C-15.1(a)(3). In his decision on the record on April 3, 2007, the judge stated that L.M. had been provided with: many years of services, including multiple psychiatric, psychological and bonding evaluations, referrals for mental health and assessment services, as well as substance abuse referrals, individual and family counseling and therapy, parenting aides, [and a] parenting program and parenting skill referral. In addressing her housing issues, [the Division referred L.M.] to the Isaiah House, Harmony House, and [Apostles']

House, as well as . . . provided . . . assistance in housing. The Division made diligent efforts to allow [L.M.] to be able to function as a parent with her children.

Although L.M. asserts that the Division failed to provide needed services and that some of the services provided were inadequate, those contentions are not borne out by the record. We are convinced that the record fully supports the judge's finding that the Division's efforts in this matter were reasonable.

In addition, Judge Harris found that the Division had established by clear and convincing evidence that the termination of L.M.'s parental rights would not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). In his decision on the record on April 3, 2007, the judge stated that the children: have lacked permanency throughout their lives. They have been removed from their mother's care on three different occasions.

The children have now developed strong bonds with both of their grandparents and have been living with them since November of 2005. Dr. Perdomo concluded that if the children were to be removed from their grandparents, they would suffer a severe adverse impact. Dr. [Gerard Figuerelli, L.M.'s expert] found that [the children] appear to be safe, cared for, supported, and emotionally secure in the . . . relationship with their grandfather. . . . The children also represented to the caseworker that they were happy . . . with their grandparents and enjoyed living with them.

The judge added that there was no alternative plan "that would provide the children with permanency and a stability" that they require. We are satisfied that the record fully supports the judge's findings.

We have considered L.M.'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.

20080423

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