July 8, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF N.H., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hunterdon County, Docket No. FG-10-06-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Wefing, Parker and Koblitz.
P.H., the biological mother of N.H., appeals from an order entered on April 25, 2007 terminating her parental rights.*fn1 We affirm.
N.H. was born on September 13, 2002 in Easton, Pennsylvania. On February 17, 2004, the Division of Youth and Family Services (DYFS) received a report that the child had been taken to the hospital emergency room for excessive vomiting. The hospital expressed concerns regarding defendant's parenting abilities. DYFS also received a report from family members alleging medical neglect of the child. DYFS substantiated the allegations and provided services, including medical care for the child and parenting classes for defendant.
A year later, in January 2005, DYFS visited defendant's home because of concerns about the child's care and defendant's imminent eviction from her apartment. A nurse who accompanied the caseworker found that defendant had difficulty paying attention and did not answer questions directly. Although the child was suffering from a respiratory infection, defendant was smoking in the room and had the child dressed only in a diaper.
Defendant showed the child's medication to the nurse and then gave the bottles to the child to play with.
Thereafter, defendant agreed to a case plan and follow-up medical treatment for the child. She also agreed to submit to substance abuse and psychological evaluations.
In February 2005, the biological father, P.S, was granted temporary custody of the child. At about the same time, defendant was incarcerated in Pennsylvania for selling crack cocaine to an undercover officer. She was initially sentenced to a work release program but left that program before completion and was incarcerated as a result.
Defendant has a history of mental illness, including treatment for a bipolar disorder. She attempted suicide after the child's birth and acknowledged smoking marijuana and becoming intoxicated while caring for the child. Defendant indicated that she did not want P.S. to have custody of the child.
DYFS instituted protective services litigation and an order was entered on June 3, 2005 placing the child in the legal custody of DYFS and suspending defendant's visitation rights.
In August 2005, defendant advised DYFS that she had been released from jail and wanted to schedule a visit with the child. When DYFS learned that defendant had been released without psychiatric medication, however, she was told to contact Hunterdon Medical Center to obtain the necessary medications before she could visit the child.
Shortly thereafter, defendant was evaluated by a psychologist, Dr. Frank Guenther. She gave a lengthy mental health history, including a number of suicide attempts, childhood sexual and physical abuse and abuse by male and female paramours. She had never received any long-term mental health or psychological counseling. She had left school at age sixteen because learning was difficult for her and she was offered the opportunity to work as a stripteaser. She also related an extensive substance abuse history.
Based upon clinical testing and the interview, Dr. Guenther diagnosed defendant with post-traumatic stress disorder, borderline personality disorder, as well as impairment in social, occupational and interpersonal functioning. He concluded that she lacked "the social/emotional and life skills capacity to provide appropriate parenting for her daughter." He also concluded that she had a serious eating disorder and engaged in bulimic behavior.
At a September 16, 2005 court appearance on the protective services matter, defendant acknowledged that she had medically neglected the child, failed to schedule the child's shots or seek treatment for her eye infection. The child remained in DYFS custody and defendant was ordered to continue a psychiatric evaluation, attend NA/AA meetings, drug screens, counseling and parenting skills training. She was approved for supervised visitation and phone contact with the child.
In September 2005, however, defendant again attempted suicide by slashing her wrists. DYFS referred defendant for domestic violence counseling because she reported significant abuse by her female lover. In all, defendant acknowledged six suicide attempts, including three medication overdoses and one attempted gunshot to the head, in addition to the wrist-slashing events. In September 2005, defendant underwent another psychiatric evaluation by Dr. Alexander Iofin. He concluded that based upon her current circumstances and chronic psychiatric pathology, she could not be considered an independent caregiver for the child.
Defendant's behavior and domestic violence with her partner continued to escalate.
In a November 1, 2005 supervised visit with the child, defendant was unable to toilet the child and clean and dress her properly. Shortly thereafter, she was again admitted to the hospital after cutting her arm, requiring ten stitches. At the time, she acknowledged that she had not taken her medication for at least four days prior to cutting herself. Nevertheless, on December 8, 2005, she completed a parenting class and registered for a second class. She had also been working at McDonald's for two months.
In April 2006, Dr. Guenther reevaluated her and determined that although she had completed a number of services provided by DYFS, she was not taking her medication regularly and continued to cut herself in fits of anger. Dr. Guenther concluded that, "[D]espite the progress [defendant] has made and her attempts to comply with all Division directives . . . her limited cognitive capacity and her continued emotional difficulties create a dynamic that would not be favorable to having [N.H.] returned to her." He continued to express concern about the child's safety and well-being if she were reunited with her mother.
In June 2006, defendant was again hospitalized, this time for depression. She had presented to the emergency room reporting depression, suicidal ideation and thoughts about cutting her arm again. Her discharge diagnosis was bipolar disorder type 2, now depressed with a history of alcohol and marijuana abuse.
In June 2006, DYFS filed a complaint for guardianship. In October 2006, defendant was again hospitalized for medication monitoring. An updated psychiatric evaluation in January 2007 by Dr. Iofin which indicated that "her significant mood alterations were the result of genuine psychiatric conditions, rather than being induced by mood-altering substances." He concluded that her prognosis for any significant improvement in the bipolar illness was "poor." Meanwhile, the child was thriving in foster care.
After hearing all of the evidence, the trial court rendered a decision on the record of April 25, 2007 in which it evaluated the four statutory factors for termination of parental rights and concluded that it was in the child's best interest to terminate parental rights.
Defendant's counsel raised the question of continuing visitation with the child in accordance with N.J. Division of Youth and Family Services v. M.M., 189 N.J. 261 (2007). After hearing argument on that issue, the court indicated that it had "been wrestling . . . for several months" with that issue. The court stated that there was not sufficient evidence "to give this court comfort that . . . it has the authority at this point to order something [like] an open adoption in light of the other authorities that do exist and have not been explicitly changed." He stated that "every expert who testified in this case indicated there would be harm that would occur if [N.H.'s] ties with [defendant] were cut off. Nevertheless, the court concluded that defendant's lifestyle and her continuing relationship with an abusive partner, along with all of the other evidence, clearly and convincingly demonstrated that parental rights should be terminated. While the court acknowledged there would be some degree of harm to the child, "she is better served . . . under all the circumstances" with the permanency of termination.
In this appeal, defendant argues:
THE DIVISION'S EVIDENCE DID NOT [SUPPORT THE] TRIAL COURT'S FACTUAL FINDINGS AND CONCLUSIONS THAT EACH PRONG OF THE BEST INTERESTS TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE
THE FACTS OF THIS CASE SUPPORT CONTINUED VISITATION BETWEEN PH AND NH DURING THE APPELLATE PROCESS BECAUSE IT WAS IN NH'S BEST INTEREST
We have carefully considered defendant's arguments in light of the applicable law and we find they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that there was more than sufficient evidence in the record to support the trial court's conclusion that DYFS clearly and convincingly proved each of the four factors articulated in N.J. Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1. Moreover, we are satisfied that the trial court's findings with respect to defendant's visiting the child after adoption are fully supported by the record and that the child's bond with her foster parents and her need for stability and permanency substantially outweigh any possible harm from severing her relationship with defendant. M.M., supra, 189 N.J. at 281.