October 31, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.C. AND V.C., MINORS.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, No. FG-15-04-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2008
Before Judges Wefing, Yannotti and LeWinn.
E.C. is the mother of Amy, now seven years of age, and Victor, now two years of age.*fn1 J.C. is their father. E.C. and J.C. have each appealed from a trial court judgment terminating their respective parental rights with regard to their children. We have consolidated their appeals. After carefully reviewing the record in light of their contentions on appeal, we affirm.
E.C. has significant mental health issues. She was forty-two years old at the time of trial. By the time this matter was tried, she had been hospitalized for psychiatric reasons at least twelve times from the age of twenty-three, including immediately after the birth of each child. She has been diagnosed as having bipolar disorder with psychotic features.
J.C. suffers from a significant hearing and speech impairment, as well as certain personality traits which seriously affect his ability to parent these children. He was found to be irritable and alienated, rigid and suspicious. He had a very limited understanding of what is entailed in parenting, and during the course of his testimony at the guardianship trial he presented confusing and ill-defined plans for caring for the two children.
In addition, their marriage has been marred by incidents of domestic violence. Each has obtained restraining orders against the other at various times.
The family first came to the attention of the New Jersey Division of Youth and Family Services (DYFS) about one month after Amy's birth when E.C. was hospitalized with a nervous breakdown. DYFS closed its file after the parents appeared to comply with services. DYFS was again contacted when Amy was three years old. E.C. made an allegation that her brother had sexually molested Amy, and E.C. began to behave bizarrely, which eventually led to her hospitalization for approximately one month. Her diagnosis on discharge included bipolar disorder with a manic episode.*fn2
Shortly after her discharge, E.C. and J.C. had another episode of domestic violence. DYFS removed Amy from her parents' custody and placed her in foster care. Amy remained in foster care through the trial of this matter.
Unfortunately, Amy was placed with three different foster families. The first two families asked that she be removed because of problems with her behavior. She exhibited, for instance, aggressive tendencies toward younger children. When Amy was first placed in foster care, she was not toilet trained. In addition, she did not know how to use eating utensils; rather, she ate directly from a bowl. There were also problems with projectile and self-induced vomiting. Her behavioral problems began to alleviate when she was placed in a therapeutic foster home.
Observation and testing led to the conclusion that a link existed between Amy's self-induced vomiting and her visits with E.C. and J.C. DYFS also had concerns with the behavior of E.C. and J.C. during these visits. E.C., on one occasion, brought presents for Amy that were intended for an infant and were thus clearly inappropriate. On another occasion they left photographs of themselves that were intended to be seen by the foster parents that were also clearly inappropriate. One was a picture of J.C. raising his middle finger and the other was a picture of E.C. exposing her backside. The pictures were quickly confiscated.
Because of these concerns, DYFS terminated the visitation. When these visits ended, Amy's self-induced vomiting did as well.
DYFS did arrange for therapeutic visitation with J.C. to resume eventually.*fn3 These visits were overseen by Dr. Andrea Sollitto. She expressed concern about J.C.'s behavior during these visits. She noted that he would appear to be self-absorbed, go off on tangents and not respond directly to the childrens' needs. Based upon her observation during these visits, Dr. Sollitto expressed "reservations and concerns regarding his ability to adequately and safely parent the children for extended periods of time on his own . . . ."
There was also testimony that at one point, J.C. told the Deputy Attorney General representing DYFS that he knew that she and the DYFS case worker had been spying on his house and looking through his basement windows.
Victor has never been in his parents' care. E.C. had another psychotic episode immediately after his birth. Based upon her behavior in the hospital, the hospital put a hold on his discharge. DYFS took custody of Vincent and placed him immediately with a foster family where he remained through the time of trial. His foster family wishes to adopt Vincent.
DYFS inquired at one point whether that family would be willing to accept Amy as well, and they originally declined. Later, they changed their minds. At the time of trial, Amy had had successful visits with the family and wished to be with her younger brother. The DYFS plan was to place her permanently with that family shortly after the conclusion of the guardianship trial.
DYFS provided a variety of services to the family. E.C. and J.C. participated in some of the services and not in others. Their participation, however, did not result in improvement in their parenting abilities.
E.C. raises the following arguments on appeal:
THE DIVISION FAILED TO MEET ITS BURDEN OF PROOF IN ESTABLISHING EACH ELEMENT ENUMERATED IN N.J.S.A. 30:4C-15.1, AND THE TRIAL COURT'S ORDER TO TERMINATE E.C.'S PARENTAL RIGHTS TO A.C. AND V.C. SHOULD BE REVERSED.
A. The Trial Court Improperly Determined
That A.C. and V.C.'s Health and Development Had Been or Would Be Endangered By the Parental Relationship.
B. The Trial Court Improperly Determined
That E.C. Was Unwilling or Unable to Eliminate the Harm Facing A.C. and V.C. and Unwilling or Unable to Provide a Safe and Stable Home for Them; Furthermore, the Delay in Placement Has Not Added to the Harm That A.C. and V.C.,[sic] Have Sustained.
C. The Trial Court Erroneously Held That the Division Made Reasonable Efforts to Reunite A.C. and V.C. With Their Biological Family and The Trial Court Failed to Consider Alternatives to Termination.
D. Termination Would Do More Harm Than Good.
In addition, J.C. raises the following arguments on appeal:
The Decision to Terminate J.C.'s Parental Rights was Against the Weight of Submitted Evidence and Testimony.
Prong 1: The Division Has Not Shown By Clear And Convincing Evidence That J.C.'s Relationship with A.C. & V.C. Has Caused or Will Cause Enduring Harm.
Prong 2: J.C. Has Eliminated the Harm To A.C. & V.C.
Prong 3: DYFS Did Not Provide "Reasonable Efforts" To Reunify J.C. with A.C. & V.C. Prong 4: Termination of J.C.'s Parental Rights Will Do More Harm Then [sic] Good to A.C. & V.C.
The Division Overstepped Its Statutory Authority By Sending P-723 To The Hospitals, Attempting To Secure Custody Of A Not Yet Born Child (not argued below).
Parents have a fundamental liberty interest in the care of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). However, the right of parents to raise or manage the care of their children is not absolute. The State also has an interest in protecting the welfare of children through its parens patriae responsibility. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Termination of parental rights is governed by N.J.S.A. 30:4C-15.1(a). That statute sets out a four prong test that must be met in order 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. [N.J.S.A. 30:4C-15.1(a)(1)-(4).]
The statute demands that the "best interests of the child" govern whether termination is proper. Ibid. The test is not rigid. Instead, each case is "extremely fact sensitive" and the four prongs overlap one another. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
E.C. and J.C. appeal separately, and each is entitled to have a separate determination of whether DYFS established its case by clear and convincing evidence. Our review of this record convinces us that DYFS did in fact establish the four prongs with respect to each parent by clear and convincing evidence.
The safety, health or development of both Amy and Victor has been harmed by their parents. As to Victor, he has been harmed by his parents' inability to care for him from his birth. The evident behavioral problems Amy experienced during the course of visitation with her parents, and the cessation of those problems when visitation ended, provides clear proof of the harm she suffered as a result of her relationship with her parents.
The second prong requires consideration of whether either E.C. or J.C. is unable or unwilling to eliminate that harm. We agree with the trial court that this is not an instance of E.C. and J.C. being unwilling to eliminate the harm but rather that their limitations make them unable to do so.
J.C. failed to complete a domestic violence program. Although he did attend anger management and parenting classes, they did not alleviate his shortcomings. Dr. Alan J. Lee, Psy.D., performed two psychological assessments of E.C. and J.C. and testified at the trial. In his first assessment of E.C., he noted:
Regarding her overall parenting and caretaking capacity, [E.C.] presents with significant major mental illness, and this major mental illness contributes to significant and notable impairments in her overall functioning. There is a notable disturbance and instabilities in her affects and moods, thinking and perception, and behavior and attitudes. Her mental status impairments remain acute and significant, and contribute to a substantial risk for harm in her caregiving to any minor child. She is not currently supported to be an independent caregiver to a minor child at this time. Various services will still be recommended with the hopes that this might help stabilize her functioning, although her prognosis is rather guarded to poor given her lack of insight, awareness, apparent resistance to seeing her mental condition, and some apparent history of poor compliance with treatment in the past.
In his second assessment of E.C., he wrote:
[E.C.] presents as having signs of fairly severe and acute mental illness. She presents with fairly strong evidence of bipolar disorder, an affective or mood disorder characterized by mood fluctuations including periods of mania or hypomania and depression. She endorses a number of symptoms which are very much consistent with manic or hypomanic episodes, and she also reported a long history of depression with at least one known past suicide attempt. She largely denied any other kind of suicidality and denied current suicidal feelings. Her moods continue to be much more unstable, although her current medication regimen reportedly provides her [a] greater sense of stability, less depression, and clearer thinking. She has evidenced some past evidence of psychotic features that seem to be related to her affective (mood) disorder.
[E.C.] continues to present with some difficulty in her interpersonal functioning. On the one hand, she remains an emotionally needy and dependent individual who very much relies on others and wishes for connections to them to help escape feeling sad and alone. On the other hand, she appears to be rather fearful and mistrusting, and at times can be rather hostile and argumentative.
Her current mental status includes her being more cooperative and calm, but beneath the surface is a rather mistrusting, hardened, and cynical individual who has difficulty effectively deriving satisfying relationships from other people.
In his second assessment of J.C, Dr. Lee stated:
He appears to be [a] characteristically primitive, immature, egocentric, and guarded individual who is rather rigid and inflexible and explosive and reactive. He appears very reluctant to see personal problems and liabilities, and oftentimes downplays events. He is also hearing impaired, although this in itself does not significantly contraindicate his parenting. Instead, his plethora of maladaptive character traits, his explosive and violent potential, and his often disregard to others contribute to significant concerns against him being an independent caregiver of a minor child. He is not supported as an independent caregiver to a minor child at this time or even within the foreseeable future, despite the child having been placed more than 20 months ago and his involvement in various services.
Dr. Lee testified at trial that J.C. remains prone to emotional outbursts with "potentially violent actions." He was also concerned about J.C.'s anger and irritability. Dr. Lee said that:
In regards to [J.C.], there were some significant concerns against his ability to independently care for a minor child that seemed to stem, in part, from some apparent underlying depression that he seemed to be largely either unaware of or unwilling to come forth with. But, perhaps, more so there were many concerns about his impulsivity, his propensity for emotional and behavioral outbursts, some propensity for aggressive and potentially violent actions that seemed to be more the product of, if you would, an enduring pattern of personality traits as opposed to a mental condition per se. And so, there were also significant concerns against [J.C.] being an independent care giver of a minor child.
Dr. Lee also expressed similar concerns with respect to E.C.:
For [E.C.], some of the most significant and salient concerns had to do with her still rather unstable mental status at that point. Even during the course of the actual evaluation that I administered, [E.C.] evidenced rather compromised mental functioning. For example, her thinking was still rather loose and disorganized and confused. There were many signs of likely bipolar disorder or what was traditionally known as manic-depressive disorder.
While the presence of a mental illness, in and of itself, is not sufficient to say that someone would not be in a position to care for a minor child, in [E.C.'s] instance, her mental illness appeared to contribute directly to some significant and grave impairments in her own mental state or mental status and, in turn, having a significant and adverse impact on her ability to care for a minor child, especially a child [Amy's] age who would still be heavily reliant on an adult for care.
There was no expert testimony presented which disagreed with Dr. Lee's opinions and conclusions with respect to either E.C. or J.C.
The third prong which DYFS must establish by clear and convincing evidence is that it has made reasonable efforts to assist the parents in eliminating harm and has considered alternatives to terminating their parental rights. Whether DYFS has made reasonable efforts is measured by a consideration of the efforts that were made, not by whether those efforts were successful. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).
DYFS offered a variety of programs to E.C. and J.C. As we noted, they participated in some of the programs and not in others. It is clear that their participation did not alleviate DYFS's reasonable concerns about their long-term ability to provide a safe, nurturing environment for their children. J.C., for instance, stresses that he completed the anger management programs that had been recommended for him. Mere participation is insufficient, however, for it is clear that the underlying problems remain.
We reject J.C.'s argument that DYFS did not make reasonable efforts because it did not provide programs and counseling addressed to those with a hearing impairment. The trial court correctly observed that J.C. made no such complaint during the time he was receiving services. If he considered those efforts inadequate to address his needs, he had an obligation to notify someone to that effect.
The record also demonstrates that DYFS considered whether there were alternatives to termination of the parental rights of E.C. and J.C. Although J.C. provided the names of potential caregivers for the children, they were not interested. E.C. did not provide any alternative caregivers for the two children.
The final prong is whether termination of parental rights will cause more harm to the children than good. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
As to Victor, the record is absolutely clear that severing the parental relationship will not cause him any harm. He has never been in the care and custody of his biological parents from the time of his birth. He went immediately from the hospital to his foster family, where he has since resided and where, according to the proofs presented, he has thrived.
We agree with the trial court that the record leads to the same conclusion with respect to Amy. Although she clearly knows her biological parents, and the law guardian did advise the court that Amy had expressed a desire to return to them, doing so would expose her to an unacceptable risk of harm. She has stabilized through her placement in a therapeutic foster home and has done well in her visits with her prospective adoptive parents, Victor's foster parents. She has been classified as medically fragile and also classified for educational purposes. Her biological parents are unable to meet her needs, and her best chance for psychological, emotional and intellectual development lies with her prospective adoptive parents.
In sum, we affirm the judgment entered by the trial court substantially for the reasons stated by Judge Ronald E. Hoffman in his oral opinion of June 28, 2007.
J.C. raises one additional contention, relating to the request DYFS sent to area hospitals asking to be notified if E.C. presented to deliver a child. He argues that DYFS had no authority to make such a request.
We perceive no substantive merit to this argument. DYFS was aware that E.C. was expecting another child. The conditions that had led to Amy's placement in foster care were unabated at the time of Victor's birth. DYFS was not required to sit silently on the sidelines until Victor in fact suffered harm. Much of J.C.'s arguments in this regard consist of policy disagreements with the timelines set forth in the federal Adoption and Safe Families Act, 42 U.S.C.A. §§ 12101 to 12213. Modification must be sought in a different forum.