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State of New Jersey Division of Youth and Family Services v. N.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 2, 2008

STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-DEFENDANT,
v.
N.G., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF Q.M.H., K.N.G., AND D.D.G., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-95-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2008

Before Judges Collester and Graves.

Defendant N.G. appeals from a judgment of guardianship terminating his parental rights to his three sons: K.N.G., born on January 1, 1998; Q.M.H., born on June 23, 1999; and D.D.G., born on November 9, 2002. The mother of the children, C.H., signed an identified surrender of her parental rights, which will allow the present foster parents to adopt the children. On appeal, N.G. argues the judgment of guardianship should be reversed because the Division of Youth and Family Services (DYFS or the Division) "failed to clearly and convincingly prove the four prongs of the best interests test." Because the trial court's decision is adequately supported by substantial credible evidence in the record, we affirm.

While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, our Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to satisfy the following four-part best- interests-of-the-child test by clear and convincing evidence before parental rights may be terminated:

(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 requirements, which are extremely fact sensitive, "relate to and overlap with one another to provide a comprehensive standard." K.H.O., supra, 161 N.J. at 348.

In this case, the facts leading up to the children's initial placement in foster care are not disputed. The Division's first contact with N.G. and his family was on November 15, 2003, when the police reported a fire at the apartment where N.G. lived with his three children and their mother. Although the fire caused only minor damage and no one was harmed, the city fire marshal was concerned for the safety of the children because "there were about 50 cigarette burn marks on the floor" of the apartment and there were also cigarette burn marks on the television. Upon investigation, a DYFS caseworker observed "there were no beds for the kids," and the apartment was infested with roaches. The caseworker identified "child welfare concerns," and a case was opened so that the Division could provide assistance to the family.

A few days later, on November 22, 2003, the Division received another referral from the police. This time the police stated that N.G. had "asked for placement of the children." According to the referral, N.G. told the police that the oldest child, K.N.G. (age five), "is too much, he thinks he's grown. I can't take him anymore." In addition, N.G. explained to the police that the apartment was in disarray because he started "overturning the furniture" after he became frustrated. Based on N.G.'s behavior, the Division referred him for a psychological evaluation and a substance abuse assessment.

However, because N.G. agreed to voluntarily leave the apartment and the mother told the caseworker the children would not be left alone with their father, the children continued to reside with their mother.

On March 1, 2004, the Division received a referral from the police stating the children were home alone, and the mother's whereabouts were unknown. According to the referral, K.N.G. was "trying to cook pizza by putting the box in the oven." DYFS removed the children from their home on an emergency basis, and the next day the court placed the children in the custody, care, and supervision of the Division.

On March 2, 2004, the court ordered the mother to attend a parenting skills class, and it required the father to obey an outstanding domestic violence order that prohibited him from having any contact with the mother. The court also required the Division to schedule weekly visitation. The children were placed in the care of the present foster parents because there were no relatives available to care for them.

At some point while the children were in foster care, the domestic violence restraining order was dismissed, and the parents began living together again. During this period, the Division continued to provide reunification services to both parents, including parenting classes, psychological evaluations, individual therapy, supervised visitation, transportation, and in-home social services. On February 28, 2005, N.G.'s therapist, Cheryl C. Pride, LCSW, provided the Division with a written treatment summary, which included the following:

[N.G.] has been seen for individual therapy following a referral from the Division of Youth and Family Services, Camden North District Office. [N.G.'s] children are in foster care and he is at risk of having his parental rights terminated. He is eager to do whatever he may to correct this situation and have his children returned home.

At the time of their removal from the family, they resided with their mother. She and [N.G.] have a history of domestic violence and were not together. He was however, in close contact with the children and saw them regularly. The issue at hand is not a question of [N.G.'s] willingness to be compliant with services that are offered, but his ability to provide a stable environment [for] the children. His intellectual capacity is somewhat diminished and he becomes frustrated easily. He has been working to develop better coping skills when he becomes frustrated, but this is without the stress and demands of taking care of the family. He reports that a major issue he and the children's mother used to argue about was regarding who was responsible to care for the children. When he was tired, he wanted her to monitor them and this created disagreements. Seemingly, the children had been left at home alone, which precipitated their moving from their mother's home.

In therapy, [N.G.] has expressed his concern for his children. He does not demonstrate a clear understanding about their abstract needs, but he has a grasp on the concrete issues. A brief observation of him during a visit, showed him sitting calmly while the person supervising the visits literally ran after the youngest child through the hallways. When feedback was given about this situation, he said that he was writing that day but generally he is more involved with the children. Consultation with the person who supervises the visits, reported that my observation is more likely to occur than not.

Also of concern is the lack of planning regarding the children. [N.G.] and the children's mother have recently done a great deal of work to secure a house for the family. He had previously been at his mother's home. However, it is not clear who will live there, as remarks have been contradictory over the past few weeks. His statements sometimes change seemingly based on what he feels is the more appropriate answer for this situation but then another version of the plan is revealed as he talks more in the session. If he is supplying this home for the children and their mother, as has been suggested, the safety of the children is based on her ability.

It is unfortunate, because the love and concern is presented clearly. However, the ability that has been demonstrated leaves serious doubt as to the readiness or capability of [N.G.] to be the primary parent of his children. There are many issues to be considered, including but perhaps not limited to the violence and anger that is easily aroused when feelings of being overwhelmed are present; the relationship between these parents regarding the distribution of labor in caring for the children, and the providing for their immediate needs; and understanding the more subtle needs of the children to facilitate responding in a parental role rather than as a friend or playmate.

Based on this assessment, the prognosis for change is guarded, but should be viewed as an overall process, which includes the assessments from the other two therapists who are involved with various components of this family. Perhaps with a joint effort and depending on the children's mother's ability, there may be enough cooperation to support these parents, with multiple services and monitoring.

In March 2005, the court determined the youngest child was to be returned to his parents later that month, and the two older children were to be returned by April 8, 2005. At that time, the parents were living together in an apartment in Camden. The Division continued to provide services after the children returned home, but the parents were unable to maintain their own apartment, and the family moved in with N.G.'s mother in September 2005.

In September 2005, while N.G., C.H., and the three children were residing with N.G.'s mother, Dr. Meryl E. Udell, Psy.D., conducted a psychological evaluation to determine N.G.'s ability to parent his children. Dr. Udell determined that N.G.'s ability to care for his children "is quite limited," and "he is not capable of being a primary caregiver." Moreover, according to Dr. Udell, it did not appear that N.G. and C.H. "together could be appropriate caregivers without any other adult supervision."

On November 16, 2005, the Division received a referral from a school teacher, stating that the oldest child, K.N.G. (age seven) "came to school with bruises. He had a bruise over his eye, he had welts on his arm and he stated that his mother had beat him the night before. . . ." He also stated that his parental grandmother and parental aunt were present during the beating but failed to stop it. The police were notified and when C.H. was interviewed at the Camden Police Department, she admitted to hitting the child "too hard" with a belt because "she was real angry." C.H. was charged with third-degree aggravated assault and endangering the welfare of a child. As a condition of bail, C.H. was prohibited from having any contact with K.N.G.

As a result of this referral, the children were again removed from their parents' care and placed in foster care. On November 16, 2005, the two oldest children were placed with their current foster family, which is the same family they were previously placed with. On November 3, 2006, the youngest child, D.D.G., was placed in the same foster home as his brothers. The Division's plan is for all three children to be adopted by their current foster family.

On September 18, 2006, Dr. Roberta E. Dihoff, Ph.D., evaluated N.G.'s "intellectual status as part of determining his ability to parent." During this evaluation, N.G. stated that he was unemployed and living "with his mother, who cannot assist him." Dr. Dihoff summarized her findings as follows:

[N.G.] has significant cognitive impairment, functioning in the range of mild mental retardation. He has a history of requiring special education and has associated deficits in academic skills which are at the early elementary school level. His thought processes are concrete and he has difficulty understanding questions and directions.

[N.G.] appeared sincerely concerned for his children and sincere in his belief that he can meet the children's needs. Given his level of functioning, [N.G.] has been resourceful in complying with multiple requests made of him during lengthy court proceedings. He has managed public transportation to see his older children and reports seeing them on a regular basis.

Unfortunately, despite his good intentions, [N.G.] lacks understanding of what constitutes a good parent. His support system seems limited at this point to his aunt about which there is no information in the record. [N.G.] has a sketchy job history with periods of unemployment. He has little insight into his role in losing custody of his children, in losing his job(s), and in planning for a future. This is a result of his cognitive limitations which necessitate supervision for his own needs. Involvement of the Division of

[D]evelopmental Disabilities would be recommended to assist [N.G.] with his own needs, including housing, job monitoring and financial affairs.

The case was tried on July 26, 27, August 21, 23, and 24, 2007. Following summations on August 24, 2007, the trial court rendered an oral decision terminating defendant's parental rights. During the trial, the court heard testimony from two psychologists: Dr. Linda R. Jeffrey testified for the Division, and Dr. Kenneth Goldberg testified for N.G. Dr. Goldberg agreed that N.G. "is someone who does function at a lower range of intellectual functioning." Nevertheless, Dr. Goldberg testified that N.G. has the "potential to fit within the broad range of a good enough parent."

[T]hese cognitive issues are certainly significant issues. They're not non-significant issues, but when you say how will they affect his parenting abilities? Well, his parent abilities will be his parent abilities, and I think he certainly shows the potential to fit within the broad range of a good enough parent, and being such a good enough parent may not mean being a good enough parent in isolation as if there's no broader community. It may mean being a good enough parent in the context of belonging to a family and having other social and community supports. But I think that there's cognitive issues, while they are relevant, they certainly don't rule him out from the possibility of taking the natural role, you know, we all take, which is to raise our children the best we can.

On the other hand, Dr. Jeffrey testified that N.G. did not have the capacity to adequately care for his children.

According to Dr. Jeffrey,

[N.G.'s] cognitive limitations, his functional academic skill deficits, and adjustment problems significantly decrease his parenting capacity. I do not recommend the return of his children to his care, and I indicate that they are likely to be at high risk for harm in his care.

Q: Now Dr. Jeffrey, is this opinion solely based on [N.G.'s] cognitive limitations?

A: No.

Q: Can you give an example as to how these children would be at risk in his care?

A: As I detail in my report, I believe based on the evidence that [N.G.] would be incapable of caring for his children independently because he would not be able to provide adequate parenting regarding attunement, responsible care, and attentiveness to the individual needs of his children, that he would have difficulty detecting, monitoring, and making certain that he was exercising the appropriate amount of control over the children, enforcing rules and demands consistently, and with appropriate vigilance.

Q: And why is attunement important for parenting?

A: Attunement is a key aspect of parenting capacity. An adult who is serving as a parent has to be able to detect the needs of a child, and then to organize his efforts and the environment in such a way as to make certain that the child's needs are fulfilled to at least a minimal level of safety. In the psychological literature the term that is used is "good enough" parenting. Good enough so that the child is able to continue to develop normally, does not have an area of their development neglected, so that the child does not become so-called stuck at a particular developmental level, so that the child's needs are fulfilled. While I think that it's probably the case that [N.G.] would want to make certain that his children's needs are being met, I do not believe that the evidence I gathered indicates that he has the parenting capacity to do so.

Dr. Jeffrey also testified that she conducted two bonding evaluations: one between N.G. and his three children, and the second between the children and their foster parents. When she was asked to compare and contrast the two evaluations, Dr. Jeffrey testified as follows:

A. In the bonding evaluation with [N.G.], as I indicate, he functioned as a pleasant, affable playmate for the children. The session was very rowdy. It got louder, and there were a number of activities in the session that were more appropriate for an outdoor context than an indoor room. I indicate in my report that I felt that [N.G.] was motivated to entertain his children, and wanted them to have fun, but had great difficulty monitoring the children's behavior or managing the structure and the behavioral limits and a reasonable degree of safety in the room. It got quite rowdy with things being thrown around. At one point one of the children got hit with an object. At another point I got hit with an object.

It was not the case, in my opinion, that there was any desire to not be responsible, but of simply not knowing what is appropriate and responsible in an indoor setting to manage children's behavior. At one point I did have to indicate to [N.G.] that it was getting so loud that I was concerned that people in the adjoining offices and other visitation rooms would be disturbed. So there was a lack of parenting judgment, a lack of understanding of what appropriate management of children in that contest was. He did not display a parent's understanding of risk in a play situation like that.

In contrast, the foster parents had a quite mature understanding of how you organize children, and you help them function appropriately in a particular context, indoors, in relationship to each other, with due diligence and careful supervision and managing their activities and their interactions with each other. And so it was remarkably different between the two sessions. I would have to say that the children behaved with much more self control and appropriateness in the foster parent bonding than they did with their father in the birth parent bonding, dramatically so.

And I need to emphasize that I truly have never seen that much rambunctiousness allowed to continue in a bonding evaluation, and I've done hundreds of bonding evaluations at this point.

Q: And Dr. Jeffrey, in your opinion is there any type of attachment of [the children with their father]?

A: Yes, I believe there is an insecure attachment.

Q: And what does an insecure attachment mean?

A: There are three major components of an attachment in the sense of a child's attachment to an adult. An affectionate bond, a response to parental authority, and a sense of trust and belongingness. In the case of the relationship between [N.G.] and his sons I believe that there is an affectionate tie, particularly between his two older children, and to a lesser extent his younger child toward him. There is an affectionate bond there.

Response to parental authority, which is the second component of attachment, means that the adult has been able, or is able to exercise parental authority with the child that the child responds to and that the child relies upon. And I think that there [are] many more problems in that area of his relationship with his children, that he has very serious difficulties establishing parental authority with his children.

And the third component, which is security and a sense of trust, I do not believe that his children rely upon his being there in order to fulfill their needs, nor did they behave as if they could trust that that would be there. So there -- that is the difficulty there. In other words, it is not only the establishment of an affectionate tie that is at the heart of attachment. It is the other components, the other components being particularly important of a child's sense of an adult as a psychological parent upon whom they base their sense of reliability, consistency, and trust.

Q: And in your opinion, was [N.G.] that psychological parent for the children?

A: No.

Dr. Jeffrey also stressed that the children need a sense of closure and to know "where they belong in order for them to proceed developmentally." As Dr. Jeffrey noted: "[C]hildren are not creatures that can be put on a shelf . . . . They need security and resolution."

Psychologists and psychiatrists often play a critical role in termination of parental rights cases. Matter of Guardianship of J.C., 129 N.J. 1, 22 (1992). In the present matter, the court credited Dr. Jeffrey's testimony, and it found that the State had proven each of the four statutory standards under N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. On appeal, N.G. claims the State failed to prove, by clear and convincing evidence, that his parental rights should be terminated. We cannot agree. Based on our review of the record, we are convinced the trial court's findings and conclusions are firmly supported by substantial credible evidence. Accordingly, the judgment terminating N.G.'s relationship with his children is affirmed.

20081002

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