October 21, 2008
STATE OF NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.A.C. AND N.S., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF A.F. AND M.D.S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-76-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2008
Before Judges Stern, A. A. Rodríguez and Waugh.
In these consolidated appeals N.S. (birth father) appeals from a judgment of guardianship terminating his right to M.D.S., a two-year-old girl, and L.A.C. (birth mother) appeals from the same judgment of guardianship terminating her parental rights to A.F., a four-year-old girl, and M.D.S. The judgment also terminated the parental rights of A.F.'s father, Q.F. He does not appeal. L.A.C. and N.S. argue that the Division of Youth and Family Services (DYFS) failed to carry its burden of proof. We affirm.
A.F. was born prematurely on March 22, 2004. Three months after her birth, L.A.C. left A.F. with a woman she had met earlier that day, with no provisions for the infant and no contact number. The following day, the woman took A.F. to Towanna Gandy, with whom L.A.C. was living. Gandy called DYFS. Gandy offered to take custody of the child but a background check revealed that Gandy's son died from asphyxiation while in her care. DFYS removed A.F. from Gandy's home. On the day of her removal, A.F. was diagnosed with thrush, had fluid-filled cysts under both nipples and, due to being born premature, had weak reflexes and was developmentally delayed. A.F.'s body weight was below the fifth percentile. It was subsequently discovered that A.F. had not been immunized. DYFS placed A.F. in a foster home.
DYFS could not make contact with L.A.C. until three days later. At that time, DYFS learned that L.A.C.'s older child was living with L.A.C.'s mother. DYFS ran a background check on the maternal grandmother and discovered that she was listed on the DYFS perpetrator list for two prior incidents. This older child was subsequently placed with his paternal grandparents and remains there to this day. His placement is not at issue in the present appeal. That same day, a judge granted DYFS custody of A.F.
L.A.C.'s mother expressed her desire not to be considered a placement option for A.F.
On June 21, 2004, a nurse evaluated A.F. and diagnosed her as being medically fragile. A.F. suffered from severe reflux and it was recommended that she be placed in a home trained in reflux precautions. DYFS placed A.F. in such a home and she remains there today. The foster parents have expressed a desire to adopt A.F.
L.A.C. was advised that the return of A.F. to her custody was premised on L.A.C. attending parenting classes, receiving psychological evaluations, and finding stable housing. L.A.C. was unable to obtain stable housing throughout the remainder of 2004. During the next six months, L.A.C.'s attendance at appointments, visitations with her daughter, and responsiveness to DYFS was sporadic. L.A.C. visited A.F. three times between her removal in June and the end of November. A.F.'s paternal grandmother attended the visits and requested the opportunity to arrange bi-weekly visits with her granddaughter.
A.F.'s health improved while in foster care. She gained weight despite her reflux. A.F. was declassified as medically fragile at eight months of age.
L.A.C. informed DYFS that she had registered to take parenting classes through the Jewish Family and Children's Services. However, she never attended the classes. During the spring of 2005, L.A.C. missed two appointments with the court-appointed psychologist, Chester E. Sigafoos, Ph.D., a clinical psychologist.
In August 2005, L.A.C. informed DYFS that she was pregnant.
In September 2005, L.A.C. attended and completed a parenting class at the Mercy Center. She also started individual counseling. The counselor at the Mercy Center described L.A.C.'s attendance as sporadic and thought L.A.C. needed to be more focused on her treatment and goals.
In October 2005, L.A.C. was evaluated by Dr. Sigafoos. Dr. Sigafoos concluded that L.A.C. "may present an adequately functioning person. But test results show a different picture." He characterized her as immature, unable to handle stress, and likely to act irrationally. He opined that L.A.C. had "numerous problems that [would] interfere with her capacity to parent."
He recommended skills training and supportive therapy.
L.A.C.'s third child, M.D.S., was born on December 3, 2005. The birth father, N.S., had been incarcerated since January 2006. He will be eligible for parole in November 2009.
Shortly after M.D.S.'s birth, the court granted DYFS custody of her. M.D.S.'s paternal aunt initially cared for the infant. However, four weeks later, the aunt returned M.D.S. to DYFS because she was overwhelmed with caring for the newborn. Additionally, the paternal aunt testified that L.A.C. made it "uncomfortable" for her to care for M.D.S. by threatening to call DYFS when denied visits with M.D.S. DYFS placed M.D.S. with a family friend, S.F., who L.A.C. offered as a placement resource. M.D.S. remains with S.F. to this date and S.F. wants to adopt M.D.S.
After M.D.S.'s birth, L.A.C. lived with her mother for about one month and then subsequently moved in with Delsi Washington, the mother of L.A.C.'s current boyfriend.
L.A.C. missed an appointment for a psychiatric evaluation with Alexander Iofin, M.D., a child and family psychiatrist, though a DYFS worker informed L.A.C. that she needed to attend the appointment. She was subsequently examined by Dr. Iofin.
He diagnosed L.A.C. with "personality disorder-NOS, with narcissistic personality trait and dependent personality trait." He recommended "psychotherapy sessions and different types of therapeutic approaches . . . on a fairly long-term basis."
In May 2006, L.A.C. decided to move to North Carolina to find more affordable housing but did not inform DYFS. Initially, she lived with her cousin and later moved into her own apartment. At the time of trial, L.A.C. lived in that apartment with her boyfriend, J.W. and their son born on March 15, 2007.
The DYFS caseworker for M.D.S. testified that she was not aware of any contact between N.S. and his daughter M.D.S. during his incarceration. N.S. testified that he knew M.D.S. was no longer with his sister. He was unaware of M.D.S.'s whereabouts.
In November of 2006, N.S.'s sister moved to regain custody of M.D.S., asserting that she only gave up custody of M.D.S. because she believed that the girl would be returned to L.A.C. When she discovered that L.A.C. still did not have custody of M.D.S., she wanted the child returned to the family. The motion was denied.
On December 12, 2006, the DYFS case worker asked L.A.C. if she was attending counseling in North Carolina. L.A.C. stated that she was and gave the caseworker the name and number of the counselor. When the caseworker called to confirm L.A.C.'s attendance at counseling, the caseworker learned that the counselor in North Carolina was not treating L.A.C., but was a maternity care coordinator.
In April 2007, Jesse Whitehead, Jr., Psy.D., a clinical psychologist, conducted an evaluation of L.A.C. and a bonding evaluation between L.A.C. and her two daughters. Dr. Whitehead concluded that L.A.C. is "very capable" of parenting her children. Her one major shortcoming is the lack of priority which she gave DYFS. He testified that L.A.C. needed to learn that receiving help did not have to be a "degrading" experience. She could handle parenting A.F. and M.D.S. in addition to her new infant, but it would be beneficial to have a supervising agency oversee the situation. Concerning the bonding evaluation, Dr. Whitehead opined that L.A.C. did a good job of keeping her daughters stimulated and involved despite the fact that the bonding evaluation took place in the courtroom.
Dr. Sigafoos also conducted a bonding evaluation between L.A.C. and her daughters. He concluded that there was "impaired attachment" between the children and L.A.C. According to him, when L.A.C. interacted with the girls, the girls "lacked in spontaneity [compared to] the bonding evaluations with the fosters . . . . [The children were] more lively, . . . they smiled more, [and] they made more eye contact." Dr. Sigafoos opined both A.F. and M.D.S. saw their foster parents as their psychological parents. Dr. Sigafoos concluded that if A.F. and M.D.S. were separated from their respective foster families, they would suffer "serious and enduring harm" and that separation from L.A.C. would "not cause any harm."
In July 2007, the Mercy Center, where L.A.C. had been attending counseling, submitted a monthly report stating that L.A.C.'s participation was "unsatisfactory" and that her progress was "minimal."
Judge Michael A. Guadagno issued a written decision. He reviewed the procedural developments and summarized the trial proofs, especially the expert testimony, as to both L.A.C. and N.S. The judge correctly identified the standard for termination and the governing legal principles. He found that:
[L.A.C.] has failed to take advantage of [DYFS' s] services and, to this day, offers nothing by [sic] unconvincing excuses as to why she has not sought to remedy these clearly defined problems. She has never grasped the concept of parental responsibilities and has placed other priorities ahead of her efforts to reunify with her children.
With respect to N.S., because he was incarcerated within one month of M.D.S.'s birth and had since remained uninvolved in her life, the judge found that:
DYFS has established by clear and convincing evidence that [N.S.'s] failure to take responsibility for his daughter and to perform any substantial parental functions, caused her harm, endangered her health and development, and [N.S.] has been either unable or unwilling to remedy the circumstances giving rise to this harm.
We have carefully reviewed the record in light of the arguments presented on appeal. We determine that the judgment of the trial court is based on findings of fact which are adequately supported by the evidence and that the arguments made are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). As noted above, the judge properly identified the standard for termination.
N.J.S.A. 30:4C-15.1 codified the standards the Supreme Court established in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986). The Division of Youth and Family Services (DYFS) must establish 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 parent 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.
See also A.W., supra, 103 N.J. at 604-11.
Therefore, we affirm the July 24, 2007 judgment terminating L.A.C.'s parental rights to A.F. and M.D.S., and N.S.'s parental rights to M.D.S., substantially for the reasons expressed by Judge Guadagno in his July 24, 2007 comprehensive written opinion.
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