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Division of Youth and Family Services v. F.M.K.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 30, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
F.M.K., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.K.J., Y.A.J., T.A.J. AND D.J.R., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FG-07-175-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2008

Before Judges Parker, Yannotti and LeWinn.

F.M.K. appeals from an order of the Family Part entered on May 9, 2007, terminating her parental rights to four of her seven children, M.K.J., Y.A.J., T.A.J. and D.J.R. The Division of Youth and Family Services (DYFS) was awarded guardianship of M.K.J., Y.A.J. and T.A.J. A permanency order was entered with respect to D.J.R., awarding kinship legal guardianship (KLG) to the child's paternal uncle. For the reasons that follow, we affirm the order terminating F.M.K.'s parental rights to the four children.

DYFS has been involved with F.M.K.'s family since 1995. The four children who are the subject of this appeal were removed from F.M.K.'s custody on August 11, 2004, when she signed a six-month consent for placement. Prior to the 2004 removal of the children, DYFS had provided various services to F.M.K. including referral for a drug assessment and outpatient services at St. Michael's Medical Center. DYFS also referred F.M.K. to the Mount Carmel Guild for substance abuse and counseling. F.M.K. and the children became homeless in August 2004, as the result of F.M.K.'s non-compliance with the rules and drug treatment program requirements of the shelter in which she and the children had been living.

Two of the children, D.J.R. and M.K.J., were placed together in a shelter. M.K.J. was subsequently placed in a Tri-Cities therapeutic foster home and remained there as of the time of trial. D.J.R. was relocated to several Mentor Therapeutic homes due to behavior problems, including acting out physically with other children and being very disobedient and defiant. As of the time of trial, D.J.R. was receiving medication and intensive therapy from Catholic Charities.

Y.A.J. and T.A.J. were placed together in a Babyland foster home. They also were relocated to several other placements due to their disruptive behavior.

As of the time of trial, the permanency plan for M.K.J., Y.A.J. and T.A.J. was select home adoption. The permanency plan for D.J.R. was KLG with his paternal uncle.

DYFS provided counseling for F.M.K. and her children following their placements and lasting until approximately April 2006, at which time DYFS sought a court order to terminate F.M.K.'s visitation because the DYFS caseworker supervising the visits testified that F.M.K. was negatively influencing the children and her behavior fluctuated between "compliant" and "verbally aggressive."

DYFS provided additional services to F.M.K., including counseling, drug assessments and various drug program referrals. The DYFS caseworker testified that these services failed due to F.M.K.'s chronic non-compliance. Throughout 2005 and 2006, F.M.K. was in and out of numerous drug treatment programs, none of which proved successful due primarily to F.M.K.'s lack of compliance with program requirements.

During this time, DYFS also made efforts to furnish housing to F.M.K. At various times, F.M.K. did obtain apartment housing; however, that housing was eventually lost and F.M.K. returned to shelter placement. In December 2006, F.M.K. advised DYFS that she was residing with an uncle in Pennsylvania. When DYFS attempted to schedule an assessment of F.M.K.'s Pennsylvania residence, however, F.M.K. canceled the appointment. DYFS attempted to re-schedule the home assessment but postponed the date to enable F.M.K. to attend her scheduled drug assessment. However, F.M.K. failed to keep either appointment.

DYFS referred F.M.K. for two psychological evaluations with Dr. Mark Singer in October 2005 and April 2007. In his October 2005 evaluation, Dr. Singer noted F.M.K.'s extensive history of marijuana use, which he regarded as an attempt to self-medicate due to her depression, anxiety and low self-esteem. Dr. Singer opined that F.M.K.'s feelings of depression and anxiety, coupled with her lack of an appropriate means of coping with these feelings, limited her ability "to respond effectively to the demands placed upon her as a parent."

Dr. Singer recommended numerous steps for F.M.K., including: (1) obtaining appropriate housing; (2) maintaining appropriate employment; (3) participating in individual psychotherapy; (4) participating in a parenting skills training program; and (5) successfully completing her drug treatment program. Notwithstanding these recommendations, however, Dr. Singer opined that F.M.K.'s prognosis was "guarded." Dr. Singer noted that, "since the removal of her children in August of 2004, she has been unable to make significant changes in her life. The prognosis will depend upon [F.M.K.]'s ability to fully engage in the above recommendations in order to make the needed changes in her life."

In his 2007 evaluation, Dr. Singer reached the same conclusion regarding F.M.K.'s lack of resources to parent effectively. He opined that F.M.K.'s ability to parent had actually decreased in the preceding two-year interval. Dr. Singer concluded that F.M.K. would not be able to develop appropriate resources to parent within the foreseeable future.

DYFS assessed various family members as potential caretakers for the children. F.M.K.'s maternal aunt, A.K., was ruled out due to lack of required space in her residence for the children. J.R., the biological father of D.J.R., offered his brother, V.R. as a permanent resource for that child. In April 2007, DYFS began therapeutic visitation between D.J.R. and V.R.

Dr. Barry A. Katz conducted bonding evaluations of F.M.K. with the four children. Dr. Katz opined that the children would not be traumatized by termination of F.M.K.'s parental rights because they had already been significantly traumatized by the instability in their lives to date. The doctor testified that the children need stability and consistency, and that the time to meet those needs was long past. Specifically regarding D.J.R., Dr. Katz opined that the child had a "dysfunctional attachment" to F.M.K. and that prevented him from bonding with any other caretaker.

F.M.K.'s chronic failure to appear at court-scheduled case management conferences led to the entry of an order of default against her on April 2, 2007. In that order, the judge provided that, if F.M.K. failed to submit to a drug assessment by April 4, 2007, the court would consider entry of default with prejudice against her. The order further stated: "[F.M.K.] must attend [DYFS]'s psychological evaluation tomorrow and allow [DYFS] to conduct [a] home assessment." That order also scheduled trial to commence on April 16, 2007.

On the first day of trial, before a different judge, F.M.K. did not appear. Nor had she complied with the drug assessment and home inspection requirements of the April 2, 2007 order. The trial judge declined to enter a default with prejudice and permitted F.M.K.'s attorney to participate in the trial.

On the second day of trial, F.M.K.'s attorney stated that she had received three telephone messages from F.M.K. the preceding day in response to counsel's messages regarding her need to appear in court. However, F.M.K. never appeared throughout the trial.

Judge John J. Callahan placed his decision on the record on May 9, 2007. The judge found that DYFS had established by clear and convincing evidence all four of the criteria under N.J.S.A. 30:4C-15.1(a) for the termination of F.M.K.'s parental rights to the four children. On that same date, the judge entered an order memorializing his decision. This appeal followed.

On appeal, F.M.K. raises the following arguments:

POINT ONE:

THE TRIAL COURT ERRED IN TERMINATING F.M.K.'S PARENTAL RIGHTS TO HER CHILDREN BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE PRESENTED AT TRIAL DO NOT SUPPORT THE LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE STATUTORY TEST UNDER N.J.S.A. 30:4C-15.1(a) FOR TERMINATION OF PARENTAL RIGHTS WERE ESTABLISHED BY CLEAR AND EVIDENCE.

A. DYFS FAILED TO SHOW THAT F.M.K. IS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING THE CHILDREN OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILDREN.

B. THE TRIAL COURT ERRED IN FINDING THAT TERMINATION OF F.M.K.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

POINT II:

WITH RESPECT TO D.J.R., THE TRIAL COURT ERRED IN TERMINATING F.M.K.'S PARENTAL RIGHTS WHILE SIMULTANEOUSLY RETURNING HIM TO THE PROTECTIVE SERVICES LITIGATION FOR PURPOSES OF KINSHIP LEGAL GUARDIANSHIP WITH HIS PATERNAL UNCLE.

We have thoroughly reviewed the record in light of these arguments and the applicable law. We are convinced that there is sufficient credible evidence in the record to support the judge's findings of fact. We therefore affirm the order terminating F.M.K.'s parental rights substantially for the reasons stated by Judge Callahan in the decision that he placed on the record on May 9, 2007. We add the following brief comments.

F.M.K.'s own conduct demonstrated unequivocally that she is "unwilling or unable to eliminate the harm facing the child[ren] or is unable or unwilling to provide a safe and stable home for the child[ren]...." N.J.S.A. 30:4C-15.1(a)(2). Moreover, there was sufficient evidence in the record, including the unrebutted expert testimony of Drs. Singer and Katz, to support the judge's finding that termination of parental rights "will not do more harm than good[,]" under N.J.S.A. 30:4C-15.1(a)(4). Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

The record also provides sufficient support for the judge's decision to terminate F.M.K.'s parental rights to D.J.R., notwithstanding that child's KLG placement with his paternal uncle, V.R. The same evidence supporting termination of F.M.K.'s parental rights to M.K.J., Y.A.J. and T.A.J. under N.J.S.A. 30:4C-15.1(a) warranted termination of her parental rights to D.J.R. The parental rights of D.J.R.'s natural father, J.R., were not terminated because J.R. voluntarily executed an identified surrender of D.J.R. to V.R., the child's paternal uncle, for the purpose of KLG placement pursuant to N.J.S.A. 3B:12A-1 to-7. Under these circumstances, we reject F.M.K.'s argument that the KLG placement of D.J.R. prohibited termination of her parental rights.

Affirmed.

20080930

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