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New Jersey Division of Youth and Family Services v. C.R.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 21, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.R., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.R., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-43-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 12, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant C.R., the biological mother of four-year-old J.R., appeals from the June 25, 2007 order of the Family Part that terminated her parental rights to her daughter, pursuant to N.J.S.A. 30:4C-15.1(a). The order in question awarded guardianship of J.R. to the Division of Youth and Family Services (DYFS) so that adoption proceedings could commence. The parental rights of J.R.'s natural father, G.R., were also terminated, but he has not appealed.

On appeal, C.R. argues: 1) DYFS's removal of J.R. was "improper and all subsequent proceedings were tainted by that error"; and 2) DYFS failed to establish all of the elements required by N.J.S.A. 30:4C-15.1, thereby requiring reversal. We affirm.

I.

At trial, DYFS presented the testimony of its caseworker, Xenia Ugarte, and of a psychologist, Alan G. Lee, Psy. D., who performed psychological and bonding assessments. DYFS also presented the testimony of I.C., the caregiver of J.R., who expressed her strong desire to adopt J.R. The record also contains more than 1,100 pages of treatment records, assessments, psychologist reports, visitation reports and contact sheets describing the history of DYFS's involvement with C.R. and documenting the results of DYFS's intervention. C.R. testified but presented no other witnesses on her behalf.

These are the most pertinent facts. C.R. was only sixteen years old when her daughter J.R. was born. At the time of J.R.'s birth, C.R. was living with I.C., an adult woman who lived next door to C.R.'s mother. Indeed, C.R. had been living with I.C. ever since she was eleven years old. That arrangement began when C.R.'s mother became angry about how much time C.R. was spending at I.C.'s house, threw all of C.R.'s clothing out the back door and told C.R. to go live with I.C. C.R.'s mother had a long history of involvement with DYFS, including thirteen separate abuse complaints that DYFS investigated concerning C.R.'s two siblings. On one occasion, C.R.'s mother was arrested for abuse of C.R.'s brother and sister.

After C.R.'s mother threw C.R.'s clothing out the door, C.R. began living with I.C., who raised C.R. by providing her with her own room, helping with her school work and assisting her in finding a part-time job. When C.R. became pregnant with J.R. at age fifteen, I.C. assisted her with pre-natal care and when J.R. was born, taught her how to care for her daughter. As I.C. described it, she and C.R. "co-parent[ed]" J.R. and raised J.R. "together." Indeed, while C.R. was in school and at work, I.C. took care of J.R.

In the fall of 2004, when J.R. was less than a year old, I.C. and C.R. had a "falling out," which resulted in C.R. and J.R. moving out and returning to live with C.R.'s mother. Shortly thereafter, C.R.'s mother abandoned her and returned to Colombia, leaving C.R. and J.R. alone in a hotel. When C.R. called I.C. and asked I.C. if she could "come home," I.C. said yes. I.C. attempted to re-enroll C.R. in school, but the school refused to permit her to do so because I.C. did not have legal guardianship of C.R. It was at that time that DYFS became involved, although it is not clear from the record whether the school or I.C. requested DYFS involvement. In any event, DYFS assumed custody of C.R. in December 2004, which enabled DYFS to re-enroll C.R. in school.

All went well until approximately April 2005, when the relationship between I.C. and C.R. again became "strained," this time by other people's insinuations. The friction between the two intensified, culminating in an argument in which C.R. called I.C. "a few names that really hurt." The two agreed that C.R. and J.R. should no longer live with I.C., whereupon I.C. called DYFS. DYFS enrolled C.R. in Harbor House, but J.R. remained with I.C. because Harbor House did not permit children to reside there.

Some seven months later, in July 2005, DYFS placed J.R. with the Children's Home Society (CHS) in a Mommy and Me Program. Both C.R. and J.R. entered the program together. By that point, C.R. was pregnant with her second child.*fn1 On July 15, 2005, DYFS caseworkers visited C.R. at CHS in response to a report of a case manager there that C.R. was neglecting J.R., not feeding her and locking her in a bedroom. Staff at the CHS suspected that C.R. was planning to run away for the weekend and abandon J.R. When DYFS caseworkers confronted C.R. about those allegations, C.R. responded by claiming that there was no food at CHS and bugs were rampant. She also stated that she hated it there and wanted to leave. The DYFS caseworkers checked the cupboards and refrigerators and saw considerable quantities of food. They also looked for bugs and infestation, but found none.

Nonetheless, C.R. repeated that she hated living there and wanted to leave. She became emotional and told the DYFS caseworkers to go ahead and remove J.R. immediately because "that's what [they] were there to do anyway." The caseworkers insisted that such was not their intention, that they had purchased a crib for J.R. and were not there to take J.R. away. According to the DYFS caseworker, C.R. said "she did not believe us, she said that DYFS likes taking children and since that's our job, we might as well take [J.R.] now instead of prolonging it."

When the caseworker stepped outside to contact her supervisor, C.R. walked down the driveway, down the street and left without coming back, thereby abandoning J.R. When the caseworker explained to her supervisor what had just occurred, the supervisor issued an order to effect a removal and take J.R. into DYFS custody.

On DYFS's instructions, CHS called local police and reported C.R. missing. Police found C.R. a few blocks away. C.R. insisted that she would not return to CHS and threatened to run away if she was placed back there. According to the caseworker, when C.R. was informed that DYFS had removed J.R. from her custody, "C.R. said goodbye [to J.R.] with a quick hug and kiss, no emotion was shown and no crying took place by either mother or baby. [C.R.] told [J.R.] she would go to court and file for custody of her and see her again on Monday." C.R. went to live with her mother in Union County, who had since returned from Colombia. DYFS returned J.R. to the custody of I.C. who, according to the caseworker, "was thrilled to have the little girl back." I.C. promised that she would not permit C.R. to return until C.R. had learned to become a better mother.

C.R. did not ever contact DYFS to express any regret for having abandoned J.R. at CHS. Nor did C.R. ever ask her DYFS caseworker what steps she might take to ameliorate the situation. In fact, for an unspecified period of time after DYFS removed J.R. in July 2005, DYFS caseworkers were unable to locate C.R., causing her to be placed on "missing status for awhile." This, too, exacerbated the breakdown of C.R.'s relationship with J.R. In November 2005, the court was forced to suspend C.R.'s visitation with J.R. due to her "non-compliance" with required counseling services. Although visitation was reinstated, C.R.'s non-compliance with services led the court to again suspend C.R.'s visitation for a brief period in June 2006.

Dr. Lee performed psychological evaluations of C.R. and I.C., as well as a bonding evaluation of J.R. with both C.R. and I.C. In his psychological evaluation of C.R., Dr. Lee concluded that C.R. had no major mental illness or history of substance abuse and possessed adequate cognitive and intellectual functioning. Nonetheless, according to Dr. Lee, C.R. did "show signs of some maladaptive personality traits that have adversely impacted her functioning and adjustment in different areas of her life." Dr. Lee opined that C.R. suffers from an "impluse control disorder" and is "a characteristically rather defended and guarded individual who is also rather inflated in her views of herself. This generally reflects a less mature and instead more primitive psychological organization and style. At times, she seems to feel invisible and shows little interest or need to change." Dr. Lee observed that overall, C.R. was less mature than would be expected for someone of her chronological age.

Dr. Lee opined that such traits were the result of a "rather self-absorbed and egocentric style . . . [causing a] lack of personal insight and . . . a heightened level of anger . . . that sometimes interferes with her effective problem-solving and thinking. She can be rather reactive and even explosive, and shows difficulty actively understanding the nature and origin of her feelings." Ultimately, Dr. Lee concluded:

While C.R. herself appears largely free of severe or acute major mental health problems, she does show some ingrained and often maladaptive character traits that include her coping deficits and problem solving difficulties. She maintains strikingly self-absorbed to the extent that often times it impairs her empathy and understanding of situations. She shows somewhat limited knowledge and experiences of parenting and child rearing despite now having produced two children. Some of her expectations about young children do not seem accurate or realistic, contributing to some discrepancies between her views . . . and reality. . . . There are concerns about [her] lack of compliance with various services in the past . . . .

Any contact [C.R.] might have with the child at this point, should be supervised.

However, the most central recommendation at this time supports the notion of other permanency planning for the children other than reunification with [C.R.]. . . .

Ongoing Division involvement primarily for the purposes of permanency planning for [J.R.] is indicated.

In his bonding assessment, Dr. Lee concluded that "[w]hile [J.R.] seemed to enjoy some of the interactions with her birth mother, there does not appear to be a significant, lasting, or positive psychological attachment or psychological bond between [the two]." He consequently concluded "there would seem to be a relatively low risk of severe, enduring, or irreparable psychological harm to [J.R.] if her relationship with the birth mother was permanently ended."

As a result of the bonding evaluation that Dr. Lee completed with J.R. and I.C., Dr. Lee concluded that because J.R. has lived with I.C. for much of her life, she has "formed a significant, positive and lasting attachment or psychological bond with [I.C.]. The child has viewed [I.C.] to be the primary caregiver of her basic needs over time." He further opined that "there would be a significant likelihood of severe, enduring or irreparable psychological harm [to J.R.] if her relationship with [I.C.] was permanently ended." He concluded that "in light of separately indicated concerns about the birth parent's inabilit[y] to provide appropriate care, a permanency plan where the child remains with [I.C.] is most supported."

In her testimony, C.R. explained her desire to regain custody of J.R. and insisted that she earned enough income at a perfume factory to enable her to support herself and J.R. She also testified that: J.R. calls her "Mommy"; she had missed only "one or two" visitation sessions; she had completed fifteen anger management sessions and had been unwilling to attend any more even if others believed she should; the allegations against her made by the case manager at CHS were false; and the only reason she "walked away" from CHS was because she became convinced that DYFS caseworkers were there to take J.R. from her because the crib they had promised her was not in the caseworkers' minivan.

The record establishes that DYFS provided the following services to C.R.: parenting classes, anger management classes, a psychological evaluation and placing C.R. and J.R. in the CHS Family Care Program, where C.R. could have learned parenting skills had she remained there. Additionally, after July 2005, a DYFS worker drove J.R. to a mall halfway between I.C.'s home in Bayville and J.C's apartment in Elizabeth so that C.R. could visit with her daughter at the mall, rather than be forced to take a bus all the way down to Ocean County. At another point in time, DYFS provided C.R. with a bus pass.

The record also includes I.C.'s testimony that the details of Kinship Legal Guardianship (KLG) were explained to her and she rejected the option of KLG in favor of adoption. She explained that from the standpoint of J.R., KLG would be "too confusing. She needs permanency." I.C. also testified that when J.R.'s visits with C.R. resumed after a period of suspension, J.R. regressed by becoming "very withdrawn" and urinating in her pants even though she had already been toilet-trained.

In an oral opinion on June 25, 2007, that covers twenty-six transcript pages, Judge Ronald Hoffman concluded that DYFS satisfied the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. He accordingly terminated C.R.'s parental rights to J.R. and directed DYFS to proceed with adoption proceedings. He signed a confirming order that same day.

II.

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.

III.

We turn first to C.R.'s argument that DYFS's removal of J.R. from her custody on July 15, 2005, was unlawful and tainted all of the ensuing events and proceedings. We disagree. It was C.R.'s own conduct that led DYFS to remove J.R. By running away from the CHS and leaving her daughter behind, C.R. gave DYFS no alternative other than to remove J.R. and return her to the custody of I.C. It was C.R.'s own immature and irresponsible behavior that led to the removal. DYFS acted well within its authority in taking custody of J.R., whom C.R. had just abandoned. C.R.'s claims to the contrary are meritless. We turn now to an analysis of C.R.'s contention that the judge erred when he concluded that DYFS proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

IV.

A. The First Prong

The first prong of N.J.S.A. 30:4C-15.1(a) requires DYFS to prove that C.R.'s conduct has endangered, or will continue to endanger, J.R.'s safety, health or development. In connection with the first prong, C.R. claims that the judge impermissibly "held C.R.'s poverty against her when he found she did not have the financial resources to take care of her children." We disagree. Although we do not disagree with C.R.'s contention that poverty cannot serve as a basis for termination of parental rights, see In re Guardianship of K.L.F., 129 N.J. 32, 45 (1992), we disagree with C.R.'s characterization of Judge Hoffman's findings. Although the judge did mention in passing that C.R. did not appear to have the financial resources to support her daughter, it is beyond dispute that this factor played an extremely minor role in the judge's conclusion that the first prong of the statutory test was satisfied.

Specifically, the judge concluded that J.R.'s health and development had been endangered, and would continue to be endangered by C.R., because of both her poor decision-making skills and her abandonment of J.R. when she left the Mommy and Me Program at CHS. As the judge observed, "[C.R.] had an opportunity to go and reside with the child and with [I.C.], as she had done previously[, but] she elected not to do that. She went to Elizabeth to live with her mother who [herself] had an extensive DYFS history." The judge also relied upon C.R.'s refusal to fully participate in the array of services that DYFS offered, which twice led to a suspension of her visitation, as well as upon Dr. Lee's conclusion that C.R. is not psychologically fit to rear a child. Quite simply, the record does not support C.R.'s contention that the judge's findings concerning the first prong of N.J.S.A. 30:4C-15.1(a) were impermissibly and unduly influenced by C.R.'s financial status.

In this connection, C.R. also criticizes the court for having accepted a stipulation from her on June 5, 2005, that she had committed abuse or neglect against J.R. because she was unable to care for J.R. in November and December of 2004. We need not address the argument because any such stipulation played no role in the judge's findings of fact or conclusions of law. The judge never mentioned that stipulation in his detailed findings of June 25, 2007. Consequently, if there was any error, it was harmless.

Our review of the record satisfies us that the judge's findings concerning the first prong were correct.

B. The Second Prong

The second prong of the statute requires DYFS to establish by clear and convincing evidence that C.R. was unwilling to eliminate the harm facing her daughter. C.R. maintains that, contrary to the judge's findings, she had "finally broken free" of the negative influences caused by both her own mother and G.R., established a stable living environment and was working to support herself. Consequently, she argues, the second prong was not satisfied.

As DYFS correctly argues, by choosing to move from Bayville, where J.R. was living with I.C., to an apartment in Elizabeth, which is a long and inconvenient bus ride away, C.R. chose to isolate herself from her daughter. By so doing, C.R. effectively hindered her chances of maintaining any bond with her daughter. Even more significant, the record reflects that after C.R. abruptly left CHS and abandoned J.R., she did not contact DYFS to express regret for her conduct or request DYFS to permit her to return to CHS with J.R. Indeed, she failed to remain in contact with DYFS for a time after she left CHS, forcing DYFS to place her on "missing status."

While establishing her own apartment and obtaining a job are admirable, those facts, standing alone, do not negate the conclusion that C.R. is, as Judge Hoffman correctly found, unwilling to eliminate the harm facing her daughter. Not only did C.R. choose to move a considerable distance away from her daughter, but the record also supports the conclusion that C.R. steadfastly refused to accept further anger management counseling sessions. Such sessions were offered to her by DYFS; and both DYFS and Dr. Lee told her she needed further therapy to help her control anger and impulsivity, both of which strongly interfere with effective child-rearing. Indeed, nothing exemplifies the adverse effects of C.R.'s impulsivity and anger management problems more than her decision to literally walk away from her child and abandon her. We have been presented with no meritorious basis upon which to disturb Judge Hoffman's conclusion that "psychologically [C.R.] is incapable, and by her lack of participation in services, it would appear that she's unwilling" to eliminate the harm facing J.R., as required by the second prong of N.J.S.A. 30:4C-15.1(a). Indeed, it was C.R.'s erratic participation in the services that DYFS offered her that caused the court to suspend her visitation on two occasions.

The second portion of the second prong also requires DYFS to establish by clear and convincing evidence that separating the child from her resource family would cause serious and enduring emotional or psychological harm to the child. Dr. Lee's conclusions in that regard stand unrefuted in this record. C.R.'s claims to the contrary are meritless.

C. The Third Prong

The third prong of the statute requires DYFS to establish that it made reasonable efforts to provide services to C.R. to help correct the circumstances that led to the removal of J.R.; and that alternatives to termination of her parental rights were considered. The record reflects that DYFS provided C.R. with a full panoply of anger management therapy and parenting skills counseling. DYFS also provided C.R. with a bus pass to visit J.R. and on other occasions DYFS drove J.R. halfway to Elizabeth, where C.R. was living, to facilitate visitation. Perhaps most important, DYFS also provided C.R. with a place where she and J.C. could live together, namely CHS, after C.R.'s insulting comments to I.C. led I.C. to ask C.R. to leave the only stable environment C.R. had ever known. It was C.R. herself who left CHS, an environment which had the capacity to improve C.R.'s parenting skills and provide her with stability. Consequently, the record supports the judge's conclusion that DYFS provided C.R. with a wide range of services that were aimed at eliminating the harm facing J.R., but C.R. did not benefit from those services and, indeed, ultimately rejected them.

With respect to the proofs in the record concerning alternatives to termination, the record demonstrates that DYFS evaluated both the maternal grandmother and an aunt in Massachusetts. Neither one was acceptable. Additionally, KLG was considered as well, but I.C. declined that alternative. Consequently, the record supports the conclusion that alternatives to termination of parental rights were indeed thoroughly considered.

D. The Fourth Prong

The fourth prong requires DYFS to establish that termination of parental rights will not do more harm than good. Under this prong, the court must carefully weigh the child's needs and determine whether the harm that will result from termination of the child's relationship with her mother is outweighed by the benefits of adoption. K.H.O., supra, 161 N.J. at 373. See also D.Y.F.S. v. E.P., ___ N.J. ___, ___ (2008) (slip op. at 25-26).

While J.R. will undoubtedly suffer from some degree of loss from the termination of C.R.'s parental rights, J.R. cannot and should not be expected to wait for her mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). "A child is not a chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement. Ibid.

As our opinion in C.S. makes abundantly clear, there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with his or her child. Ibid. That time has now come.

Here, the record amply supports Judge Hoffman's conclusion that because of J.R.'s insecure attachment to C.R., "[t]here would be no lasting damage to the child if termination of parental rights occurred . . . ." The record further supports the judge's additional conclusion that because I.C. "is the only [stable] parent figure that [J.R.] has ever known" and "[the child] is prospering with I.C.," the benefits of adoption by I.C. would outweigh the minimal harm that would result from the termination of C.R.'s parental rights. Consequently, our careful review of the record demonstrates that as Judge Hoffman correctly determined, DYFS proved by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). Defendant's arguments to the contrary lack merit.

Affirmed.


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