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New Jersey Division of Youth and Family Services v. D.E.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.E., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-84-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 8, 2008

Before Judges Parker and Gilroy.

Defendant D.E. appeals from a judgment of guardianship entered on October 5, 2007 terminating her parental rights to her son, T.H.

T.H. was born on November 29, 2005. Although T.H.'s birth certificate does not name a father, the evidence indicates that T.A.H. is the child's biological father. T.A.H. contested paternity but failed to appear for a paternity test. He did not appear to contest termination of parental rights and is not a party to this appeal.

D.E. is developmentally disabled and mildly retarded. She has a long history of substance abuse and has been involved with the Division of Youth and Family Services (DYFS) since 1987. She has two other children who are in the legal custody of her family members. The two older children are not parties to this litigation. Nevertheless, the history of the older children is relevant to this case.

On October 18, 2005, DYFS received a referral from the Matawan Middle School, stating that D.E.'s daughter, J.F., was frequently absent and had been diagnosed with depression. When DYFS investigated the referral, they found that D.E.'s home was dirty with rabbit feces and discarded food "about a foot high on the floor, dirty clothes, clutter, videotapes all over, so bad that the worker couldn't even walk through the house." DYFS determined that the house was not a safe or fit place for the child and J.F. was removed to foster care. During the course of that investigation, DYFS observed that D.E. was approximately eight months pregnant.

Three weeks later, on November 11, 2005, it was reported to DYFS that D.E. tested positive for drugs. A few weeks after the positive drug test, on November 9, 2005, D.E. gave birth to T.H. and DYFS initiated a notice of emergency removal pursuant to N.J.S.A. 9:6-8.28 and 9:6-9.30. DYFS was granted immediate custody of the child and placed him in foster care on December 1, 2005. Thereafter, DYFS filed an order to show cause and on the return date of January 5, 2006, D.E. was granted supervised visitation.

On March 14, 2006, Alan J. Lee, Psy.D., a licensed psychologist, examined D.E. on behalf of DYFS. He reported that D.E. was a forty-two-year-old single mother of three children from three different relationships. After administering a number of tests, Dr. Lee determined that D.E. has "some notable cognitive and intellectual limitations and deficits." The test results indicated a functional IQ of 60 "falling in the intellectually deficient classification."

Dr. Lee found D.E. "rather impulsive, poorly organized, and emotionally reactive and even explosive." With respect to parenting, Dr. Lee found that "[m]any of her deficits are essentially chronic, enduring, and lifelong, and she continues to present with some notable deficits that preclude her ability to consistently, effectively, or appropriately care for minor children." He recommended that D.E. be referred to the Division of Developmental Disabilities (DDD) for services, support and consideration for group home living. He further indicated that if D.E. is to have contact with children, it should be supervised.

Thereafter, DYFS referred D.E. to a number of treatment facilities and a parenting training class. She testified at trial, however, that no services had been provided for her. She did, however, acknowledge that she went to the Visiting Nurse Association (VNA) for drug testing, but she did not participate in any drug treatment programs. She further acknowledged in her testimony that DYFS sent a counselor to her home to assist with parenting skills.

DYFS provided supervised visitation for D.E. and T.H. On numerous occasions, however, D.E. failed to appear for the visits and did not notify DYFS in advance that she would not be present.

In other instances, when D.E. appeared for the visits, she did not interact well with the child. The caseworker testified that the child "cries the whole time. He kind of runs from her," and that the foster mother came into the room during the visits because of the way the child reacted to D.E.

In April 2007, Karen D. Wells, Psy.D., a licensed psychologist, undertook a psychological evaluation of D.E. on behalf of DYFS. In that evaluation, Dr. Wells administered certain tests, including a Child Abuse Potential Inventory (CAPI) and a Millon Clinical Multiaxial Inventory III (MCMIIII). The MCMI-III indicated that D.E. has "at least a moderate level of pathology." Her "behavior may be characterized as fearfully dependent and self-effacing. . . . Although insecure and vulnerable if separated from those who provide support, [D.E.] may feel anger toward those who fail to appreciate her intense need for affection and nurturance." The test instrument indicated that D.E. is "[s]trongly dependent on nurturant persons, [D.E.] has increasingly assumed peripheral social and vocational roles, with a meaningless, ineffectual, and idle life pattern. Her ineffectuality makes the ordinary stressors and responsibilities of life excessively demanding for her." She lacks insight, becomes indecisive and easily upset.

On the CAPI, D.E. "did not evince an elevation on the overall abuse index, although elevations were indicated on the Relationship With Others and Child Expectancies and Behaviors subscales."

Dr. Wells concluded that

[n]either clinical information nor test materials indicate that [D.E.] possesses even minimal psychological, cognitive, or emotional capacities to assume primary responsibility and care for [T.H.]. . . . She has not demonstrated personal stability or the capacity to independently function and provide for her own care and needs. To place a child in [D.E.'s] care is strongly clinically contraindicated. Her ability to function independently is restricted, with no information that at any time would she be able to assume parental care and responsibility for a child.

Dr. Wells specifically noted that T.H. "is a youngster who presents with developmental delays and special needs, with [D.E.] presenting with cognitive/intellectual deficits and limitations."

Dr. Wells also conducted a bonding evaluation between D.E. and T.H. She testified that ordinarily she observes the parties in bonding evaluations for at least an hour but that T.H. was screaming and so inconsolable, despite D.E.'s attempts to console him, that the evaluation was terminated after ten minutes. Dr. Wells concluded that "there are no indications that [T.H.] has a bond with [D.E.]. He reacts to her as a stranger, is inconsolable when in her care, despite her efforts to be consoling and appropriate with him. . . . Unfortunately, there are no indications that [D.E.] could provide [T.H.] with a safe and stable home and family life."

Dr. Wells further undertook a bonding evaluation between T.H. and his foster parents. During her observation, Dr. Wells noted that both foster parents engaged with the child. "He presented as a happy baby, smiling, with [the foster parents] noted to be loving, warm and kind with him." Dr. Wells observed that "[a]lthough [T.H.] was not heard to verbalize at all, it was apparent that he has keen receptive skills" and that he responds to the foster parents' requests and directions. She found that the foster parents demonstrated "comfort and ease in their manner of relating with [T.H.]." Dr. Wells concluded that "[t]here is an undeniable and easily observed mutual parent-child bond between [T.H.] and [the foster parents]." She reported that the child "is comfortable in their presence, interacts with them without difficulty, and finds [the foster parents] to be a source of comfort and assurance for him." In Dr. Wells' opinion, "[t]o remove this youngster from [the foster parents'] care would adversely impact and impair his psychological and emotional functioning as well as his cognitive capacities" and if removed from [the foster parents'] care, [T.H.] would regress in gains, with progress also likely to be restricted in other areas of his life. [T.H.] is a youngster with developmental delays, with removal from [the foster parents'] care likely to cause psychological and emotional dysfunction of an irreparable and enduring nature. Clinical support is given for [T.H.] to remain in [the foster parents'] care in an effort to not only provide him with permanency via adoption, but also to increase the likelihood that his potential can be actualized and realized with continuity of care.

The foster parents have indicated their desire and commitment to adopt T.H.

After hearing the testimony, the trial court rendered its decision on the record of October 5, 2007. The court evaluated the evidence in light of the four factors articulated in New Jersey Div. of Youth and Family Serv. v. A.W., 103 N.J. 591 (1986), and codified in N.J.S.A. 30:4C-15.1(a). The court found that D.E. "is not aware of the dimension of [T.H.'s] needs." After reviewing D.E.'s diagnoses, her inability to maintain treatment continuity, her dependency on others for her own care, the trial court concluded that D.E. could not parent a special needs child.

Considering the bonding evaluations, the trial court found that the foster parents "are aware of [T.H.'s] current needs, as well as the need for long-term intervention and services, and they are committed to meeting those needs." The court concluded "that to remove this child from the caregivers would adversely impact and impair both the psychological and emotional functioning of the child, but also impact on his cognitive capacity." The court concluded that DYFS had demonstrated by clear and convincing evidence that termination of D.E.'s parental rights would serve the child's best interests because D.E. "simply cannot now and will not in the future be ever able to meet the standard to -- suitably and adequately parent this child."

In this appeal, D.E. argues:

POINT ONE

THE TRIAL COURT ERRED IN FINDING THAT THE "BEST INTERESTS" TEST WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE

(A) TERMINATION OF D.E.'S PARENTAL RIGHT MUST BE REVERSED BECAUSE IT WAS BASED ON UNRELIABLE TESTIMONY AND DOUBLE-HEARSAY STATEMENTS

(B) THE PARENT IS WILLING AND ABLE TO ELIMINATE THE HARM FACING THE CHILD

(C) DYFS FAILED TO EXERCISE REASONABLE EFFORTS IN REUNITING D.E. WITH HER CHILD

(D) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD

We have carefully considered D.E.'s arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). The judgment of the trial court is clearly supported by the evidence in the record. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated by Judge Robert A. Coogan on the record of October 5, 2007. Nevertheless, we add the following comment.

In Point One (A), D.E. argues that the trial court based its determination on "unreliable testimony and double-hearsay statements." We note initially that D.E. did not object to the admissibility of any evidence or testimony before the trial court. Consequently, the plain error standard applies to this argument. R. 2:10-2. Rule 2:10-2 provides:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

In DYFS cases, we have consistently permitted the admission into evidence of the DYFS "running record," which includes reports by DYFS staff, psychologists and other consultants retained by DYFS to evaluate or provide services to parents. See In re Cope, 106 N.J. Super. 336, 343-44 (App. Div. 1969). D.E. is entitled to call her own witnesses and cross-examine DYFS witnesses to challenge any part of the documentary evidence admitted into evidence. She did not do so. Moreover, we have carefully considered the record in this matter and we are satisfied that the court relied on evidence properly admitted under the Rules of Evidence. There was no error, much less plain error, committed by the trial court here.

Affirmed.

20080714

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