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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 8, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
P.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF L.M., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FG-02-59-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 10, 2008

Before Judges Stern, Coburn and Waugh.

This appeal concerns the termination of parental rights between P.M., the mother of ten children, and L.M., her tenth child, who was born in September 2005.*fn1 P.M. and her other children have a lengthy history of involvement with the Division of Youth and Family Services (hereinafter "Division" or "DYFS").

She has lost custody of all of her other children, with the exception of one child who died in early infancy as the result of abuse by D.K., the child's father and P.M.'s paramour. P.M. also has a lengthy history of mental illness, which has severely interfered with her ability to care properly for her children.

Following a three-day trial in August 2007, Judge Birger M. Sween issued a written decision in which he set forth his findings of fact and conclusions of law, including the following:

The evidence is clear and convincing that: (1) [P.M.] has not overcome her mental disorders that caused her to abuse and neglect eight of her older children, that [L.M.] would be at substantial risk if returned to her custody, and that [L.M.]'s father, whomever he may be, cannot be found; (2) the Division was properly relieved of any obligation to provide services to [P.M.] due to her history of termination of her parental rights to other children; (3) the Division made reasonable efforts to find relatives to care for [L.M.]; (4) [L.M.]'s best interest will be served by termination of his parents' parental rights to free him for adoption; and (5) the termination of his parents' parental rights will not do more harm than good.

Judge Sween entered an order terminating the parental rights and awarding guardianship to the Division on August 28, 2007.

On this appeal, P.M. raises the following issues:

POINT I: THE TRIAL COURT'S DECISION TO TERMINATE P.M.'S PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE BECAUSE [DYFS] HAS NOT SHOWN THAT P.M. HARMED L.M. WITHIN THE MEANING OF THE STATUTE, THAT SHE IS UNABLE OR UNWILLING TO PARENT L.M. OR THAT TERMINATION OF HER PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD.

POINT II: THE TRIAL COURT FAILED TO SAFEGUARD P.M.'S PROCEDURAL DUE PROCESS RIGHTS WHERE THE LITIGATION WAS CONDUCTED IN A PERFUNCTORY AND BIASED MANNER.

I. THE TRIAL COURT'S DECISION TO TERMINATE P.M.'S PARENTAL RIGHTS IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE DIVISION HAS NOT SHOWN THAT P.M. HARMED L.M. WITHIN THE MEANING OF THE STATUTE, THAT SHE IS UNABLE OR UNWILLING TO PARENT L.M. OR THAT TERMINATION OF HER PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD TO L.M..

A. THE TRIAL COURT'S FINDING THAT P.M. CAUSED HARM TO L.M. IS UNWARRANTED WHERE THERE HAS BEEN NO ACTUAL HARM TO L.M. AND THE EVIDENCE THAT P.M.'S MENTAL STATE MAY POSSIBLY CAUSE L.M. HARM IN THE FUTURE IS CONTROVERTED.

1. THE EVIDENCE THAT P.M. HARMED OTHER CHILDREN IN THE PAST IS INSUFFICIENT TO CARRY THE DIVISION'S BURDEN OF CLEAR AND CONVINCING EVIDENCE OF HARM TO L.M..

2. THE EVIDENCE THAT P.M. MAY HARM L.M. IN THE FUTURE IS NOT CLEAR AND CONVINCING AND IS THEREFORE INSUFFICIENT TO CARRY THE DIVISION'S BURDEN AS TO THE FIRST PRONG.

3. THE TRIAL COURT'S DECISION IS IN CONTRAVENTION OF THE NEW JERSEY SUPREME COURT PRECEDENT ON THE CONDITIONS NECESSARY TO ESTABLISH HARM WITHIN THE MEANING OF THE STATUTE.

4. THERE IS NO EVIDENCE THAT L.M. HAS SUFFERED HARM FOR WHICH THERE IS UNAMBIGUOUS AND UNIVERSAL SOCIAL CONDEMNATION.

B. THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT P.M. IS UNWILLING AND UNABLE TO ELIMINATE HARM TO L.M. WHERE THE UNCONTROVERTED RECORD INDICATES THAT P.M. HAS VOLUNTARILY SECURED SERVICES AND THERAPY WHICH SHE BELIEVES WILL LEAD TO REUNIFICATION WITH L.M. AND AT LEAST ONE EXPERT TESTIFIED [THAT] P.M. WILL BE ABLE TO PARENT WITHOUT HARM TO L.M..

C. THERE IS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT THE THIRD PRONG OF THE STATUTE HAS BEEN SATISFIED WHERE THE TRIAL COURT DID NOT EVEN CONSIDER THE TWO PROPOSED ALTERNATIVES TO TERMINATION.

D. DYFS FAILED TO DEMONSTRATE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF P.M.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD WHERE THE EVIDENCE REVEALS THAT L.M. HAS A STRONG RELATIONSHIP WITH HIS MOTHER AND THE DIVISION EXPERT TESTIFIED THAT ANY HARM TO L.M. RESULTING FROM SEPARATION FROM HIS FOSTER PARENTS WOULD BE SHORT-LIVED.

II. THE TRIAL COURT FAILED TO SAFEGUARD P.M.'S PROCEDURAL DUE PROCESS RIGHTS WHERE THE LITIGATION WAS CONDUCTED IN A PERFUNFCTORY AND BIASED MANNER

A. P.M. WAS DENIED PROCEDURAL SAFEGUARDS PRIOR TO TRIAL IN THAT THE LOWER COURT FAILED TO MAKE SPECIFIC FINDINGS OF FACT AT THE FN STAGE AND SIMPLY PROCEEDED TO GUARDIANSHIP.

B. P.M. WAS ALSO DENIED PROCEDURAL SAFEGUARDS AT TRIAL.

1. JUDGE SWEEN'S PRIOR PARTICIPATION I[N] TERMINATING OR LIMITING P.M.'S PARENTAL RIGHTS TO HER OTHER CHILDREN PREVENTED FAIR DELIBERATION AS TO P.M.'S CURRENT ABILITY TO PARENT L.M..

2. P.M. WAS DENIED DUE PROCESS WHEN THE TRIAL COURT'S REFUSAL TO GRANT HER ATTORNEY'S MOTION TO WITHDRAW OR TO POSTPONE TRIAL.

3. P.M. WAS DENIED HER OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE ADVERSE WITNESSES BY TRIAL COURT'S RELIANCE ON AN EXPERT WITNESS REPORT WHOSE AUTHOR WAS NEVER PLACED ON THE STAND.

N.J.S.A. 30:4C-15.1a, which sets forth the criteria for terminating parental rights applicable in this case, provides as follows:

(1) The child's health and development have 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 foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made diligent 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 Division was required to prove each prong by clear and convincing evidence. In re Guardianship of J.C., 129 N.J. 1, 5 (1992).

Our review of a trial judge's findings is a limited one.

N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 433 (App. Div. 2002) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We will not "'engage in an independent assessment of the evidence as if [we] were the court of first instance[,]'" ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)), and will reverse only if we are convinced the trial judge's factual findings and legal conclusions "are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Fagliarone, supra, 78 N.J. Super. at 155). We must defer to the trial judge's findings of fact if supported by clear and convincing evidence in the record. N.J. Div. of Youth & 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).

Given the special jurisdiction and expertise of a family court judge, we accord deference to that judge's fact-finding and conclusions which flow logically from those findings of fact. Cesare v. Cesare, 154 N.J. 394, 413 (1998); Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271-72 (App. Div. 2006) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)), rev'd on other grounds, 189 N.J. 261 (2007). We also afford deferential respect to a family judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (citing Rova Farms, supra, 65 N.J. at 483-84).

After careful review, we conclude that the record contains clear and convincing evidence to support Judge Sween's findings. We also conclude that the judge applied the correct legal standards to the facts he found in ultimately concluding that termination was required. Accordingly, we discern no reason to disturb the judge's findings and affirm substantially for the reasons set forth in his written decision. We add only the following.

P.M.'s primary argument on appeal is that the Division failed to prove that she had abused or neglected L.M. and that her treatment of her other children was not a sufficient basis to terminate her parental rights as to L.M. She cites New Jersey Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576 (App. Div.), certif. denied, 192 N.J. 68 (2007) in support of her argument. Under the particular circumstances of this case, P.M.'s reliance on F.H. is misplaced.

F.H. involved an appeal from the termination of the parental rights of a mother and father with respect to their three children. We affirmed the termination as to one child and reversed as to the other two children, finding that the Division had not met its burden of proof on the issue of harm as to them.

We rejected the Division's argument that the proofs with respect to the one child were sufficient to warrant termination as to the other two. 389 N.J. Super. at 614-17.

However, our rejection of the Division's argument in F.H. was based on the facts of that case and not on a legal principle that such an argument could never be successful. We are mindful that [H.H.]'s injuries may be viewed as a harbinger of what could befall [J.H.] if he is left, unsupervised, in his parents' custody. As we noted in [J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App.Div.), certif. denied, 77 N.J. 490 (1978)]:

Predictions as to probable future conduct can only be based upon past performance. . . . We cannot conceive that the Legislature intended to guarantee to parents at least one chance to kill or abuse each child. Evidence of parents' fitness or unfitness can be gleaned not only from their past treatment of the child in question but also from the quality of care to other children in their custody.

The record here, however, does not present a consistent pattern of egregious acts of abuse or neglect. The facts here are more nuanced. Even with respect to [H.H.], the parents' conduct here is heavily laden with the complexities and ambiguities of human behavior. On the one hand, [H.H.] suffered from many medically unexplained fractures. On the other hand, this fact came to light when both F.H. and A.H. brought [H.H.] to the attention of medical professionals.

Our conclusion that DYFS did not satisfy the first prong of N.J.S.A. 30:4C-15.1a as to [K.H.] and [J.H.] is based, in part, on the fact that the safety and health of [H.H.] were jeopardized by a particular and discrete form of neglect, i.e., failing to protect him from harm, resulting in numerous fractures. Because the pattern of Harry's neglect was limited to this single form of repetitive injury rather than being more pervasive and diffuse, we are satisfied that, in light of the absence of any evidence in the record of injury to [K.H.] and [J.H.], the concern we expressed in J. & E., supra, for the safety of the other siblings is not warranted here.

[Id. at 616-17 (emphasis added).]

There is nothing "nuanced" about the facts concerning P.M.'s history with her other children. We have no difficulty concluding that a parent whose parental rights have been terminated as to five children and who has lost custody of three other children presents a "consistent pattern of egregious acts of abuse or neglect" sufficient to satisfy the concerns expressed in F.H.

P.M.'s reliance on New Jersey Div. of Youth & Family Services v. G.L., 191 N.J. 596, 608 (2007) is equally misplaced.

While the Supreme Court's opinion does hold that N.J.S.A. 30:4C- 15.1a is "conduct-based," the mother at issue, who had refused to sever her ties with the father responsible for the death of another of her children, was described by the Court as otherwise an "able" mother who took appropriate steps to protect the child at issue. 191 N.J. at 608. P.M.'s long history of abuse and neglect with respect to her other children is "conduct-based" and, together with a history of mental illness that interferes with her parenting abilities, precludes a finding that she is an "able" mother.

Although there were, as P.M. points out, conflicting opinions by the mental health professionals as to whether her mental illness would continue to interfere with her future ability to parent L.M., the record as a whole supports Judge Sween's determination that it would. P.M.'s suggestion that conflicting expert opinions preclude any finding by clear and convincing evidence is not supported by logic or legal precedent.

Affirmed.


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