October 3, 2008
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
C.M., DEFENDANT-APPELLANT, AND M.S., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.E.M.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-51-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 20, 2008
Before Judges C.L. Miniman and Lihotz.
Defendant C.M. appeals from a Family Part judgment terminating parental rights to her minor child, D.E.M., and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purpose of consenting to adoption. The guardianship judgment also terminated the parental rights of M.S., the child's father, who did not file an appeal. Because Judge June Strelecki correctly determined that the best interests of D.E.M. required termination of C.M.'s parental rights, we affirm.
D.E.M. was born on October 3, 2002. C.M. was twenty-two years old and had a three-year history of cocaine and marijuana abuse at the time D.E.M. was born. At the time D.E.M. was born, C.M. was D.E.M.'s sole caretaker for the first three years of D.E.M.'s life, during which period C.M. continued to abuse marijuana. On January 5, 2005, C.M. resided at Linkages, a transitional housing program for women and children run by Easter Seals of New Jersey. In April 2005, C.M. tested positive for cocaine and Linkages required C.M. to submit to routine urine screenings. The Division of Youth and Family Services (DYFS) was notified and it interviewed D.E.M. As Linkages had no concern about the care being given to D.E.M., DYFS took no action.
One month later, Linkages made another referral to DYFS because there were numerous bruises on D.E.M.'s body. After investigation, DYFS concluded that the bruises were a result of D.E.M.'s active behavior and took no further action. However, DYFS was again contacted about D.E.M. on February 23, 2006, this time by C.M.'s sister-in-law.
Despite the assistance offered by the Linkages program, C.M. became homeless. C.M. left three-year-old D.E.M. with C.M.'s mother around the end of 2005 but provided no contact information. After several weeks, the grandmother could no longer care for D.E.M. because she lived in a retirement community. She left D.E.M. with C.M.'s brother and his wife. D.E.M.'s aunt and uncle called DYFS because C.M. was threatening the grandmother that she would come and take D.E.M., although the family did not know where C.M. was living except possibly with a paramour in Jamesburg. They reported that C.M. had a history of drug abuse.
DYFS determined that D.E.M. had been abandoned and on March 1, 2006, obtained an order granting DYFS legal custody and permitting D.E.M. to continue to reside with her maternal aunt and uncle. On March 13, 2006, C.M. contacted DYFS and denied that she had abandoned D.E.M. She alleged that her brother and his wife smoked marijuana and neglected D.E.M. Ultimately, DYFS determined that the aunt and uncle were not appropriate caregivers and it placed D.E.M. in foster care in June 2006.
DYFS began to provide a variety of services to C.M., including parenting skills classes, substance abuse treatment, and referrals to Alcoholics Anonymous and Narcotics Anonymous, but C.M. did not take advantage of any of those services. She was given bus passes to participate in the services, but did not use them. She failed to appear for psychological evaluations on two occasions in 2006. The only service in which C.M. participated was visitation.
C.M.'s housing continued to be in a state of flux. Although she had a Section 8 voucher through the county, she did not take advantage of it. Rather, from March 2006 to October 2007, C.M. lived with various friends and never lived in a home appropriate for a child. Her employment history, too, was inconsistent. Although C.M. was recommended for level one out-patient substance abuse treatment, she did not accept it.
While C.M. was ignoring services directed toward reunification, D.E.M. was developing a bond with her foster parents, who wish to adopt her. She attends Early Childhood Learning Center and received speech therapy. The foster parents ensure that she keeps these appointments.
Dr. William D. Coffey, a DYFS psychologist, performed bonding evaluations of D.E.M. with C.M. and then with her foster parents.*fn1 He did not recommend reunification of D.E.M. with C.M. for a variety of reasons detailed in the record, including a lack of any general interest in gaining custody of her child. Because D.E.M. had been placed in several foster homes before placement with the foster parents who wished to adopt her, Dr. Coffey considered it critical to sustain her attachment with those foster parents in order to permit D.E.M. to develop personally and socially in order to avoid significant disruption in her psychic development. He opined that removing D.E.M. from her foster home would cause irreparable harm in the long run.
Judge Strelecki placed a lengthy and thorough opinion on the record and October 1, 2007, correctly reciting the law governing the issues before her. First, she determined that D.E.M.'s health and development had been or would continue to be endangered by the parental relationship based on the uncontroverted testimony of the DYFS caseworkers. Second, the judge also determined that C.M. was unwilling or unable to eliminate the harm facing D.E.M. because she had not participated in services and was living with a man who had been charged with abuse of a child. Third, the judge concluded that DYFS "ha[d] made diligent and reasonable efforts to provide services to help the parents correct the circumstances which led to the child's placement outside the home" and that there were no alternatives to termination because there were no other eligible relative caregivers. This conclusion was based upon the many services offered by DYFS, which were spurned by C.M. Finally, the judge relied on the uncontroverted opinions of Dr. Coffey that termination of parental rights would do more good than harm. She noted that she was particularly struck by Dr. Coffey's testimony that C.M. "demonstrate[d] little genuine interest to reassume custody of her child." The judge concluded this observation was absolutely true based on C.M.'s conduct in the courtroom and in her involvement with DYFS from the time she abandoned D.E.M. to the care of her mother. The judge also relied upon the bonding evaluation conducted by Dr. Coffey and concluded that it was critical that D.E.M. sustain her attachments to her foster parents.
On appeal C.M. contends that the judgment of guardianship should be reversed because DYFS failed to prove each element of the best-interests test by clear and convincing evidence. The scope of our review of a trial judge's findings of fact is a limited one. Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "The appellate court therefore ponders whether . . . there is substantial evidence in support of the trial judge's findings and conclusions." Rova Farms, supra, 65 N.J. at 484 (citation omitted). Deference is especially given to the trial judge's credibility determinations because that judge had a "feel of the case" and the opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); see also Div. of Youth & Family Servs. v. M.M., 382 N.J. Super. 264, 271 (App. Div.), certif. granted, 186 N.J. 606 (2006). Yet, "where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded." In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993) (internal quotations omitted). In such a case, if the trial court's findings are "so wide of the mark that a mistake must have been made," they are not entitled to our deference.
C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989) (internal quotations omitted). The trial judge's legal conclusions, and the application of those conclusions to the facts, however, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Parents have a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. Id. at 347. However, parental rights are not absolute and the constitutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. That responsibility requires the State to protect the welfare of children and to terminate parental rights if the child is at risk of serious physical or emotional harm. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979). When applying for guardianship, DYFS is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the State to establish its case by a clear and convincing standard. Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); In re Guardianship of J.C., 129 N.J. 1, 10 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986).
The best-interests standard is set forth in N.J.S.A. 30:4C-15.1(a) and establishes the proofs required to terminate parental rights:
(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.
These four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007); K.H.O., supra, 161 N.J. at 348. Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." R.L., supra, 388 N.J. Super. at 88.
Under the first prong of the best-interests standard, "the harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 181 N.J. at 352. The "potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Physical harm is not the sine qua non of endangerment; our Supreme Court has recognized that the potential for emotional injury can be a crucial factor. Ibid. The "psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Ses v. Baber, 74 N.J. 201, 222 (1977). The attention and concern of a caring family is "the most precious of all resources." A.W., supra, 103 N.J. at 613. A parent's withdrawal of that solicitude, nurture and care for an extended period is in itself a harm that endangers the health and development of the child. See K.H.O., supra, 161 N.J. at 352-54 (discussing the best-interests-of-the-child standard).
Under the second prong of the best-interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re D.M.H., 161 N.J. 365, 378-79 (1999).
Under the third prong of the best-interests standard, DYFS must make reasonable efforts to provide services to help the parents correct the circumstances that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); see K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. See N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth and Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
Under the last prong of the best-interests standard, the overriding consideration is the child's need for permanency and stability. K.H.O., supra, 161 N.J. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. Ibid.; see also A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not, alone, justify the termination of parental rights. In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 260-62 (App. Div. 2005). However, a child's need for permanency is an important consideration. See K.H.O., supra, 161 N.J. at 357-58. In meeting the fourth prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the natural and foster parents. In re Guardianship of J.C., supra, 129 N.J. at 19.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by C.M. are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by Judge Strelecki in her oral opinion delivered on October 1, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms, supra, 65 N.J. 483-84. The evidence clearly and convincingly supported the termination of C.M.'s parental rights to D.E.M.