November 3, 2008
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF R.A., JR., A MINOR.
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF R.A., JR., A MINOR.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-174-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Wefing, Parker and Yannotti.
Defendant I.S. is the biological mother, and defendant C.M. the biological father of R.A., Jr.*fn1 They each appeal from a judgment of guardianship entered on October 19, 2007 terminating their parental rights.
The child, R.A., Jr., was born on April 3, 2006 in Florida.
I.S., who had been a resident of New Jersey and involved with the Division of Youth and Family Services (DYFS) since 1995, fled to Florida before the child's birth to avoid DYFS intervention.
I.S. has three older children, J.S., L.A. and N.A., who are not C.M.'s biological children. In November 2002, DYFS was granted custody, care and supervision of the three older children. On June 4, 2003, legal custody of N.A. was granted to that child's father. On January 19, 2005, legal custody of L.A. was granted to her father. On February 22, 2006, kinship legal guardianship of J.S. was granted to his step-grandparents.
In October 2005, I.S.'s certified alcohol drug counselor (CADC) informed DYFS that she had lost her Section 8 apartment, was pregnant and drinking. This information was confirmed by other family members.
In November 2005, I.S. underwent a psychological evaluation by Alicia Caputo, Ph.D., a licensed psychologist. The report indicated that I.S. exhibited a reading deficiency, requiring the person who administered the personality surveys to read them aloud to her. I.S.'s intellectual functioning was estimated to be in the borderline range. Her non-compliance with drug testing and treatment and her minimization of personal problems, along with anger and resentment toward DYFS and others, indicated some personality issues. Dr. Caputo concluded that because of her borderline intellectual functioning and her history of alcohol and cocaine abuse, the children would be at risk if they were returned to her.
After reports from family members that I.S. was homeless and unemployed, the DYFS caseworker contacted her in January 2006. She confirmed that I.S. had lost her Section 8 apartment and stopped working when she learned she was pregnant. She was due in March 2006 but had not received any prenatal care since September 2005. I.S. reported that she was living with her mother in West New York. DYFS arranged a home inspection but I.S. indicated she planned to find her own apartment after the baby was born. I.S. told the caseworker that R.A. was the father of the child.
When the caseworker met with R.A., he stated that I.S. told him she was still drinking during the pregnancy and had not received any prenatal care. R.A. requested a paternity test to confirm whether he was the father. He indicated that even if he were the father, he could not care for the child and could not keep imposing upon his parents, who already had custody of J.S.
In February 2006, I.S. had a toothache and was prescribed Percocet. When the caseworker asked I.S. for the bottle of pills, there were fewer pills in the bottle than there should have been, given the prescribed dosage. I.S. claimed that she had given the Percocet pills to friends.
In April 2006, the caseworker could not locate I.S., and her mother denied any knowledge of I.S.'s whereabouts. DYFS also contacted R.A., who initially denied knowledge of I.S.'s whereabouts, but later told the caseworker that he had sent I.S. to Florida because DYFS would remove the child if it was born in New Jersey. He told the caseworker that I.S. had been living with his sister in Florida for about a month and that the baby had been born that week.
The caseworker then contacted the Broward County child protective services agency and informed it of I.S.'s status in New Jersey. The Broward County agency removed the infant from I.S.'s care and DYFS retrieved the infant the following morning and returned him to New Jersey.
On April 7, 2006, DYFS was granted legal and physical custody of the child and I.S. was ordered to undergo a substance abuse evaluation and treatment and submit to a new psychological evaluation. The infant was placed with R.A.'s parents on April 14, 2006.
I.S. began parenting skills training in April 2006. She successfully completed parenting/anger management sessions in May 2006. In April, I.S. also went to an intake interview at the outpatient treatment center for addiction services at the Jersey City Medical Center.
In May 2006, the paternity tests indicated that R.A. was not the father of the child. When I.S. was informed, she denied that anyone else could be the child's father. DYFS then removed the child from R.A.'s parents' home and placed him with a neighbor, M.O., in July 2006.
In September 2006, I.S. successfully completed the addiction services outpatient program. She was then transferred to an outpatient drug program. In October 2006, I.S. advised the court that C.M. was the father of the child. I.S. then contacted C.M.'s wife, and C.M. agreed to a paternity test. He took the test in December 2006 and it confirmed his paternity.
In February 2007, I.S. missed a number of appointments for a psychological evaluation. She was ultimately ordered by the court to complete the evaluation by March 31, 2007, and to submit to random urine tests. She failed to appear for urine tests on May 2, May 4 and May 11, 2007.
During June 2007, I.S. reported that she was unemployed and dependent upon others for financial support. She also indicated that she had used cocaine within the past thirty days and had experienced an alcoholic relapse in May.
In August and September 2007, psychological and bonding evaluations for I.S., C.M. and the child's foster parents were scheduled with Ernesto L. Perdomo, Ph.D., a licensed psychologist. Dr. Perdomo noted that I.S. is a "very immature and impulsive individual" with "narcissistic tendencies," poor insight and behavior problems. He indicated that she has a limited ability to form relationships and organize her life and work. He concluded that even with treatment and services in place, her ability to care for her children was limited. I.S. failed to appear for the bonding evaluation, however, and there was no report on her relationship with the children.
Dr. Perdomo also evaluated C.M., who indicated that his wife asked him to leave the marital home because of his affair with I.S. and the resulting birth of the child. C.M. was living with his brother and said he wanted to raise his son with his sister's assistance and did not want the child to be adopted by strangers. Dr. Perdomo concluded that C.M.'s ability to provide for the child was limited by his "life circumstances" and separation from his family. In Dr. Perdomo's opinion, C.M., a fifty-six-year-old man working an evening shift, would need a great deal of help from extended family to provide a stable home and care for the child. Dr. Perdomo reported that the child had minimal attachment to C.M. and there was no indication that termination of C.M.'s parental rights would be harmful to the child. Dr. Perdomo found, however, that the child would suffer significant emotional damage if separated from the foster parents with whom he had been placed since he was an infant.
In October 2007, DYFS was advised that I.S. did not complete her cocaine and alcohol abuse treatment at the Jersey City Medical Center.
During a three-day trial, the DYFS caseworker and Dr. Perdomo testified. Defendants did not offer any expert testimony and C.M. was the only witness to testify on his own behalf. I.S. did not appear for trial but was represented by counsel.
After hearing all of the testimony, the trial court rendered a written decision in which he evaluated all of the evidence in light of the four factors articulated in New Jersey DYFS v. A.W., 103 N.J. 591 (1986), codified in N.J.S.A. 30:4C-15.1(a), and concluded that termination of both defendants' parental rights was in the child's best interests.
In her appeal, I.S. argues:
THE TRIAL COURT'S DECISION IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AS TO ALL FOUR PRONGS OF N.J.S.A. 30:4C-15.1(A). THEREFORE THE TERMINATION OF IS'S PARENTAL RIGHTS IS NOT WARRANTED BY LAW
A. The Trial Court's Finding that IS Caused Harm to RA Is Unwarranted Where There Has Been No Actual Harm to RA and the Circumstances Relied on by the Trial Judge are Insufficient as a Matter of Law to Support A Finding of Harm Under N.J.S.A. 30:4C-15.1(a)
a. There is no evidence of actual harm to RA, nor any evidence that links IS's substance abuse to an inability to parent
b. IS's one-time use of cocaine and possible misuse of Percocet during pregnancy is insufficient to satisfy the first prong of the statute as a matter of law
c. The trial court's finding that IS had no prenatal care was incorrect factually, and even if true, is legally insufficient to support a finding of harm under N.J.S.A. 30:4C-15.1(a)
d. The fact that IS's three older children are not in IS's care is insufficient to carry the Division's burden of clear and convincing evidence of harm to RA
B. There Is Not Clear and Convincing Evidence To Support The Trial Court's Determination that IS Is Unwilling and Unable to Eliminate Harm to Her Children
C. The Trial Court Failed to Adequately and Correctly Consider an Alternative to Termination of Parental Rights Where the Biological Father Is Demonstrably Fit to Parent and the Trial Court Impermissibly Relied on RA's Bond With His Foster Parents to Preclude the Father from Parenting His Child
D. The Trial Court's Conclusion as to the Fourth Prong Is Unwarranted Where The Division Failed to Produce Evidence that Termination of IS's Parental Rights Will Not Do More Harm Than Good and There is No Evidence in the Record as to the Nature of the Harm RA Will Suffer if Ties to His Biological Mother Are Severed In his appeal, C.M. argues:
THE DIVISION FAILED TO PROVE THE FIRST PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a) BY CLEAR AND CONVINCING EVIDENCE AS TO C.M. BECAUSE THERE WAS NO SHOWING THAT C.M. EVER POSED A RISK TO R.A., JR.
THE DIVISION FAILED TO PROVE THE SECOND PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a) BY CLEAR AND CONVINCING EVIDENCE BECAUSE C.M. DEMONSTRATED HIS WILLINGNESS TO REMOVE ANY REAL OR PERCEIVED HARM TO R.A., JR.
THE DIVISION FAILED TO PROVE THE THIRD PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a) BY CLEAR AND CONVINCING EVIDENCE BECAUSE THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TO EFFECT UNIFICATION BETWEEN C.M. AND R.A., JR.
THE DIVISION FAILED TO PROVE THE FOURTH PRONG OF THE STANDARD FOR TERMINATION OF PARENTAL RIGHTS AS SET FORTH IN N.J.S.A. 30:4C-15.1(a) BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD TO R.A., JR.
In terminating parental rights, courts must consider the A.W. factors:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child"... if the following standards are met:
(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] I.S.
It is clear from the record that I.S. continues her addictions and was unable to complete treatment and remain stable even in the face of losing this child. She argues essentially that the termination was based upon evidence relating to the three older children. While that evidence is relevant to her ability to parent this child, her more recent behavior indicates that she is either unwilling or unable to change her life on the long-term basis necessary to provide a stable, permanent home for her child.
She also argues that there was only a one-time incident of cocaine abuse which does not satisfy the first prong of the termination standard. That claim is not consistent with the record, however. During her pregnancy she was reportedly drinking and in February 2006, she apparently abused a Percocet prescription. After the baby was born and removed from her custody, I.S. failed to appear for three successive urine tests in May 2007, suggesting that she had relapsed. In October 2007, just prior to the termination trial, I.S. failed to complete her drug and alcohol treatment at the Jersey City Medical Center and relapsed. She missed several appointments for a psychological evaluation and failed to appear for the bonding evaluation or even for trial.
We find no merit in I.S.'s argument that there was no evidence of "actual harm" to the child. The child was removed from her custody in April 2006 when he was just a few days old. The child had only two placements since that time--first with R.A.'s parents when R.A. was believed to be the father and then with M.O., a neighbor of R.A.'s parents. Consequently, there was no opportunity for I.S. to inflict "actual harm" on the child. The more appropriate question in this case is whether I.S. could protect the child from harm if she had custody of the child. Based upon the record, we agree with the trial court's finding that I.S. could not provide the child with a stable home environment and could not protect the child from harm. Moreover, the record fully supports the trial court's conclusion that the child would suffer significant irreparable harm if he were to be removed from the care of his foster parents.
We have carefully considered all of I.S.'s arguments in light of the record and the applicable law and we are satisfied that they lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E). We affirm the judgment terminating I.S.'s parental rights substantially for the reasons stated by Judge Mark J. Nelson in his written opinion rendered on October 19, 2007.
DYFS's application to terminate C.M.'s parental rights presents a closer case. When DYFS took custody of the child in April 2006, a few days after he was born, C.M. was not even aware of the child's existence. I.S. did not name C.M. as the child's father until July 2006, after DNA tests eliminated R.A. as the father. In December 2006, I.S. contacted C.M.'s wife and told her that C.M. may be the father of her child. C.M. consented to a paternity test and on December 14, 2006, his paternity was confirmed.
Thereafter, C.M. appeared in court on January 17, 2007. He explained that he was married and had two grown children and a sixteen-year-old daughter still living at home with him and his wife. C.M.'s wife initially indicated she would accept the child in her home, but later changed her mind and asked C.M. to leave because of his affair with I.S.
In March 2007, when the child was eleven months old, C.M. began supervised visits with him. C.M. first offered his siblings as possible caretakers. When all of the siblings were ruled out as caretakers, C.M. offered to care for the child himself in August 2007. At the time, C.M. worked an evening shift and could not take the parenting classes recommended by DYFS.
In September 2007, C.M. and the child underwent a bonding evaluation with Dr. Perdomo. C.M. had been seeing the child once a week for about six months by the time of the evaluation. During the evaluation, the child did not exhibit any anxiety or conflicts in C.M.'s presence, and he apparently related well to C.M., although he exhibited hyperactive behavior. When C.M. left the room, the child played with Dr. Perdomo and did not exhibit any separation anxiety. This was in contrast to the child's negative reaction when his foster father left the room, causing the child to cry and follow his foster father.
Dr. Perdomo concluded that the child "has very minimal emotional attachment to [C.M.]" and that "[t]here are no indications that any kind of termination of parental right would be harmful to this child. Dr. Perdomo further concluded that the child "has established very important emotional attachment to the foster parents and that he looks to the foster parents as a source of support and stability, and separation from the foster parents would significantly affect the child, producing short-term depression, because he would lose the main figures in his life, and this may also affect his ability to trust and relate to others."
Nevertheless, Dr. Perdomo testified that:
[I]f this child for instance is returned to [C.M.] for example and he's able to provide a very stable and permanent home, that trauma [to the child] is going to be mitigated. It's going to have [a] certain effect in terms of relationship and trust[,] and [there] will certainly [be] a problem with depression in the beginning but the more stable... and caring environment [that can be provided] the more mitigation will you have. The problem here is that I don't think that [C.M.] will be able to provide that kind of stability
The history is that he is going through a tremendous turmoil in his life due to the separation from his wife and children and that's the history. So right now his life is in total disarray because he's out of his house, he's out from his children and his wife and has to reorganize his life and for any man at that age it's going to be a tremendous problem and that's a tremendous source of tension for anyone....
He's a fifty six years old man who is going to take care of one and a half years old son by himself without the help of his wife or family.
And his work schedule, he works very difficult time. He work a night shift.
These factors indicated to Dr. Perdomo that C.M. will need a great deal of help "just to reorganize his life."
C.M. testified on his own behalf that he was "[a] hundred percent" committed to caring for his son and that he would not be at trial if he did not love the child. C.M. said that if the child were upset and crying because he left the foster home, he would comfort the child, "play with him, give him toys." C.M. did not consider his age--fifty-six years--or his evening shift work to be impediments to caring for the child.
In its October 19, 2007 decision, the trial court considered the statutory factors. With respect to the first factor, the court found Dr. Perdomo's testimony credible. The court noted that the child--now two and a half years old--had been with the foster family since he was two months old, and that C.M.'s "life circumstances" were such that he could not assure that "[t]he child's safety, health or development" would not be endangered by the parental relationship. In re Guardianship of K.H.O., 161 N.J. 337, 351-52 (1999).
With respect to the second factor, the court noted that it overlaps the first one, K.H.O, supra, 161 N.J. at 348, but that it "is aimed at determining whether the parent has cured and overcome the initial harm that endangered... the child, and is able to continue a parental relationship without recurrent harm to the child." The court considered C.M.'s "life circumstances," his age, evening shift work--with overtime and frequent seven day/week schedule, and his need to enlist the help of a caretaker for the child in determining that C.M. would not be able to eliminate harm to the child from the instability in his life. The court gave substantial weight to Dr. Perdomo's opinion that the child would suffer "significant irreversible emotional damage" if he were removed from the foster family and that C.M. would be unable to fully mitigate that harm.
The third factor focuses on DYFS's efforts to provide services to the parents and pursue alternatives to termination of parental rights. With respect to C.M., DYFS had provided weekly visits with the child and made diligent efforts to place the child with C.M.'s family members. When those placements were exhausted, C.M. offered to care for the child himself in August 2007, by which time he had separated from his wife and family and his "life circumstances" were such that he could not provide the necessary stable and secure home for the child. The court found further that there were no other alternatives to termination available at that point because all of the alternatives had been exhausted by DYFS.
With respect to the fourth factor, the court considered the harm the child would suffer if parental rights were terminated. Dr. Perdomo's testimony weighed significantly on this prong, as well. He testified that the child had a "very minimal emotional attachment to [C.M.]," and that the child had "bonded significantly with his foster parents to the point that he sees his foster parents as his psychological parents and as a source of comfort and emotional support." Relying on Dr. Perdomo's testimony, the court found that "a separation from those foster parents would certainly result in significant trauma to the child that would be irreparable." "While [C.M.] may believe that he is'doing the right thing' by offering himself as a resource for placement, it is not in the child's best interest to do so."
We agree. We have carefully considered the record in light of C.M.'s arguments and the applicable law and we are satisfied that the trial court's decision to terminate C.M.'s parental rights was supported by substantial credible evidence in the record. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated by Judge Mark J. Nelson in his written opinion rendered on October 19, 2007.