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New Jersey Division of Youth and Family Services v. D.L.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 3, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.L., DEFENDANT-APPELLANT, AND R.B., SR., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.L.B., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-27-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 21, 2008

Before Judges Wefing, Yannotti and LeWinn.

D.L. appeals from an order entered by the Family Part on July 31, 2007, which terminated her parental rights to T.L.B.*fn1

For the reasons that follow, we affirm.

I.

D.L. gave birth to T.L.B. on May 1, 2003. T.L.B. was born prematurely. He weighed only two pounds, four ounces. T.L.B. suffered from numerous medical problems, including chronic lung disease, hypothyroidism, retinopathy, and gastroesophageal reflux for which he required a feeding tube. On May 24, 2003, T.L.B. was transferred to the Children's Hospital of Philadelphia (CHOP) where he spent the next six months. He had eye surgery in July and August 2003 to address the eye hemorrhages that were related to his premature birth.

T.L.B. was discharged from CHOP on November 3, 2003. It was recommended that he continue medical treatment and follow-up with an ophthalmologist, an endocrinologist, and the feeding tube team. T.L.B. had a gastric tube for feeding, oxygen to aid in his respiration, and a variety of medications were prescribed. D.L. had two other young children, B.S. and R.B., Jr. at home. She had to work and maintain the household as a single parent.

In December 2003, the Division was informed that the family was about to become homeless. The Division investigated the matter and determined that further action was not required because D.L. had moved in with her parents. In November and December 2003, D.L. failed to take T.L.B. for certain medical appointments. In January 2004, T.L.B. was hospitalized for emergency treatment for respiratory distress.

In January and February 2004, D.L. failed to take T.L.B. to appointments with an endocrinologist. She took T.L.B. to a pulmonary specialist in February 2004. The child was again hospitalized from February 27, 2004 to March 7, 2004, due to respiratory distress.

In March 2004, D.L. failed to take T.L.B. for an appointment with an ophthalmologist. In April and May 2004, T.L.B. missed appointments with his pediatrician. The child missed an appointment in June 2004 with the endocrinologist. In December 2004, T.L.B. was again hospitalized due to respiratory distress.

In August 2004, D.L. was admitted to a hospital and diagnosed as having alcohol dependence. Upon admittance, D.L. reported that, in the previous thirty days, she had consumed two quarts of vodka each day. She voluntarily entered a detoxification program, but requested a discharge before she had completed the protocol.

D.L. met with Division worker Kimberly Crawley on January 30, 2005. She told Crawley that she was overwhelmed by T.L.B.'s health needs. D.L. assured Crawley that T.L.B. would attend his future medical appointments and medical daycare at Weisman Children's Rehabilitation Hospital (Weisman). On February 1, 2005, D.L. was again admitted to the hospital for problems associated with alcohol dependence. She was discharged on February 4, 2005.

Between April 6 and April 10, 2005, T.L.B. was again hospitalized for respiratory distress. On April 11, 2005, the Division learned that T.L.B. missed appointments in March 2005 and April 2005 with the endocrinologist and the pulmonary specialist. The Division also learned that the child required a follow up visit with the eye specialist. On April 14, 2005, T.L.B. missed a scheduled appointment with his primary care physician. Later that month, on April 20, 2005, D.L. signed a case plan with the Division in which she agreed that T.L.B. would attend the Weisman medical daycare program and all of his medical appointments.

On May 4, 2005, the Division filed a verified complaint and order to show cause pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 for the care and supervision of all three of D.L.'s children. On that date, the court granted the relief sought by the Division. T.L.B. was placed as an in-patient at Weisman.

On May 13, 2005, the Division filed a complaint and order to show cause seeking the custody of T.L.B. on the ground of medical neglect. The court granted the Division's application for temporary relief, and on the return date of the order to show cause, ordered that T.L.B. remain in the Division's custody. The court dismissed the Division's complaint as to D.L.'s other children.

In July 2005, T.L.B. was placed in Dooley House, a residential nursing facility for medically fragile children. At that time, T.L.B. was very thin. The child was not speaking. He barely walked and was diagnosed as developmentally delayed. T.L.B. was diagnosed with Marfan disorder, which required yearly echocardiograms and other tests. He was also diagnosed with friction syndrome and cerebral palsy. While at Dooley House, T.L.B. continued to attend the medical daycare program at Weisman.

On September 29, 2005, the Division filed an amended complaint and order to show cause for the care and supervision of B.S. and R.B., Jr. and for custody of T.L.B. On that date, the court granted the Division custody of T.L.B. and ordered that he remain at Dooley House. The other children were placed under the Division's care and supervision. In October 2005, on the return date of the order to show cause, the court continued the prior orders as to custody and supervision. The court ordered D.L. to attend substance abuse treatment and visit T.L.B. at Dooley House each week.

The court entered another order on January 12, 2006, which stated that D.L. had stipulated that the missed medical appointments had placed T.L.B. at risk of harm and constituted medical neglect. In the order, the court dismissed the Division's claims as to B.S. and R.B., Jr. However, on February 9, 2006, the Division removed those two children from the home on an emergent basis because the water in the residence had been turned off due to non-payment. The emergency removal was rescinded when water was restored.

The Division thereafter filed an amended complaint and order to show cause seeking responsibility for the care and supervision of B.S. and R.B., Jr. because D.L. was unable to pay her water and electric bills. The court granted the relief sought by the Division but the order was vacated on April 3, 2006, when the utilities were restored. On that date, the court also entered a permanency order approving a plan for the termination of the parental rights of D.L. and R.B., Jr. to T.L.B.

On May 5, 2006, when T.L.B. was discharged from Dooley House, C.T. and her husband became the child's foster parents. C.T. was a health care worker at Dooley House, and she had taken care of T.L.B. while he was there.

On May 31, 2006, the Division filed its guardianship complaint. The court entered another permanency order on March 27, 2007, which stated that termination of parental rights was appropriate and T.L.B.'s foster parents wanted to adopt him.

Judge Marvin E. Schlosser held a trial on the Division's guardianship complaint, beginning on June 27, 2007. Judge Schlosser placed his decision on the record on July 31, 2007. The judge found that the Division had proven by clear and convincing evidence that termination of D.L.'s and R.B., Sr.'s parental rights was in the child's best interests.

With regard to D.L., Judge Schlosser found that T.L.B. "was and remains medically fragile, and in need of aggressive care." The judge noted that D.L. had taken medical skills training "although only after some cancellations and some failures to appear." He also noted that D.L. failed at times to visit T.L.B. while he was at Dooley House, even though the visits had been court-ordered and even though the visits had been arranged to accommodate her work schedule.

The judge found that D.L. "missed a great majority" of the child's medical appointments. The judge stated that D.L. knew about the scheduled appointments and "could have attempted to change them, [but] did not." The judge further found that the reasons given by D.L. for missing the medical appointments were "disingenuous, at best and false at worst."

Judge Schlosser noted that D.L. refused to accept any blame for the missed visits or appointments. He additionally noted that D.L. claimed that her work schedule "always seemed to interfere." The judge found, however, that D.L.'s testimony "lacked credibility." He stated that D.L. had not provided any "meaningful evidence" regarding her work history. She claimed to have made more visits than were indicated on the sign-in sheets, but the judge stated that D.L. should have made an effort to ensure that her attendance was noted so that it could be confirmed later.

The judge additionally found that D.L.'s failure to bring the child for his medical appointments was the likely cause of the child's problems with a respiratory virus. The judge found that D.L. "does not understand the everyday involvement required" to address T.L.B.'s many medical needs. He stated, "[w]hile it may be true that her other children need[ed] her time, and she needs to work to support her entire family, these concerns, while they are genuine, [cannot] place [T.L.B.] at risk for harm."

The judge found that T.L.B. had been harmed by his relationship with D.L. He determined that D.L. is unable to eliminate the harm "because she has no real grasp as to his many medical needs and will not, therefore, devote the time and attention necessary to provide him with a safe environment." The judge observed that T.L.B. "needs a setting, wherein his needs are better understood and can be met on a regular, timely, and as needed basis."

The judge also noted that the Division had offered many services to D.L., but D.L. had rebuffed the Division's offers. The judge further noted that D.L. was treated for her alcohol dependency and had been doing well. He added, however, that while D.L. had attended an alcohol abuse program from March 2006 to August 2006, she was readmitted to the program in November 2006.

The judge additionally determined that T.L.B's health and development will be endangered by continuing the parental relationship with D.L. and there "would be a serious risk of lasting harm, so severe as to require the severance of" D.L.'s parental rights. The judge found that termination of D.L.'s parental rights would not do more harm than good.

The judge entered an order dated July 14, 2006, which memorialized his findings. This appeal followed.

II.

D.L. raises the following contentions for our consideration:

POINT I

THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP, BECAUSE [D.L.] WAS WILLING TO AND HAS ELIMINATED THE HARM FACING [T.L.B.] AND IS ABLE TO PROVIDE A SAFE AND STABLE HOME FOR HIM

A. [D.L.] HAS ELIMINATED THE HARM FACING [T.L.B.] BY ADDRESSING HER ALCOHOL PROBLEM AND GETTING MEDICAL TRAINING

B. THE TRIAL COURT SHOULD HAVE CONSIDERED [D.L.'S] ABILITY AS A PARENT FOR HER OTHER CHILDREN IN HIS DECISION WHETHER TO TERMINATE [D.L.'S] PARENTAL RIGHTS

C. [T.L.B.] NO LONGER FACES THE HARM HE ONCE [FACED], HAVING MEDICALLY IMPROVED, AND [D.L.] WOULD BE ABLE TO CARE FOR [T.L.B.]

D. [D.L'S] IMPROVEMENT AS A PARENT, AND [T.L.B.'S] PHYSICAL IMPROVEMENT HAVE ELIMINATED THE HARM FACING [T.L.B.]

POINT II

THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP BECAUSE THE DIVISION HAS NOT 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 NOT ADEQUATELY CONSIDERED ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS

POINT III

THE IMPERMISSIBLE USE OF HEARSAY, RELIED UPON BY THE TRIAL COURT IN ITS RULING, IS PREJUDICIAL TO [D.L.] AND REQUIRES REVERSAL OF [THE] RULING TERMINATING PARENTAL RIGHTS

POINT IV

DYFS AND THE COURT HAVE NOT ADEQUATELY CONSIDERED [D.L.'S] PARENTS AS AN AID TO [D.L.] IN CARING FOR [T.L.B.] AND DYFS DID NOT FAIRLY EXPLORE KINSHIP LEGAL GUARDIANSHIP WITH [D.L.'S] PARENTS AS AN ALTERNATIVE TO DEFENDANT'S TERMINATION OF PARENTAL RIGHTS

POINT V

THE APPELLATE DIVISION SHOULD REVERSE THE JUDGMENT OF GUARDIANSHIP BECAUSE TERMINATION OF [D.L.'S] RIGHTS WOULD DO MORE HARM THAN GOOD, OR, IN THE ALTERNATIVE, SATISFYING THE FOURTH PRONG OF THE "BEST INTERESTS" TEST DID NOT JUSTIFY THE TERMINATION OF PARENTAL RIGHTS

POINT VI

THE TERMINATION OF [T.L.B.'S] RELATIONSHIP WITH HIS NATURAL SIBLINGS THAT INEVITABLY RESULTS FROM TERMINATING [D.L.'S] PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD

We are convinced from our review of the record that D.L.'s arguments are without merit. We therefore affirm the order terminating D.L.'s parental rights to T.L.B. substantially for the reasons stated by Judge Schlosser in the decision that he placed on the record on July 14, 2007. R. 2:11-3(e)(1)(A) and (E). We add the following.

Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interest of the child" and the petition may be granted if the following criteria are established by clear and convincing evidence:

(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-15.1a.]

"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.

The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In addition, "[p]articular deference is afforded to decisions on issues of credibility." Ibid. (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)).

D.L. concedes that the Division proved the first prong of the "best interests" test. She recognizes that T.L.B.'s safety, health and development were endangered by her relationship with him. D.L. notes that she stipulated in the abuse and neglect case that the missed medical appointments put T.L.B. at risk and this constituted medical neglect. D.L. nevertheless argues that the judge erred by finding she is unable to eliminate the harm to the child and a delay in permanent placement will add to the harm.

D.L. admits that she has had a problem with alcohol but notes that she has completed a program to address her alcohol dependency. She also notes that she has had medical skills training. She asserts that she has capably taken care of her other two children, and her home has become more safe and stable over time. D.L. also asserts that T.L.B.'s medical condition has improved and she would be able to care for him. She contends that the judge's reliance upon the fact that she missed many visits while T.L.B. was at Dooley House is misplaced because the Division "is largely to blame for these failures."

We are not persuaded by these contentions. As we have pointed out, the judge found that T.L.B. remains "medically fragile" and requires extensive medical care. The record supports that finding. At the time of the trial, T.L.B. was seeing five medical specialists, his primary care physician and a dentist. In 2007, he was attending three medical appointments each month. He was attending a medical daycare program and daily occupational, speech and physical therapy sessions. C.T., the child's foster mother, also was providing T.L.B. with two or two-and-a-half hours of educational therapy each day. In addition, T.L.B. had to wear an eye patch three hours a day. Moreover, Dr. Genevieve Chaney, an expert in clinical psychology, testified that a special-needs child has an increased need for a safe and stable environment as he grows older.

The record also supports the judge's finding that T.L.B. would continue to be harmed by his relationship with D.L. because D.L. does not understand his significant medical needs and was unlikely to see that those needs were properly addressed. Dr. Chaney testified that, although D.L. may have been aware of T.L.B.'s special needs in the past, she failed to follow through in addressing those needs. Dr. Chaney testified that D.L.'s prognosis was "guarded" and "poor" given her history of inconsistent visits and missed medical appointments.

The judge additionally found that D.L. does not have a real grasp of T.L.B.'s medical needs and would not devote the time necessary to address them. The record shows that, when faced with such challenges in the past, T.L.B.'s medical needs were shunted aside to his detriment. The judge's finding is consistent with the principle that "[p]redictions as to probable future conduct can only be based upon past performance[.]" J. & E. v. M. & F., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978).

D.L. argues that the judge erred because he failed to consider the fact that she was successfully parenting her other children. We disagree. The judge was well aware that D.L. was providing a home for the other children; however, T.L.B. is a child with special needs and the other children are not. The judge also noted that D.L. did not present a credible plan of how she would be able to care for her other two children, work, and also attend to T.L.B.'s special needs.

D.L. additionally argues that the Division failed to make reasonable efforts to eliminate the causes that led to T.L.B.'s placement outside the home. D.L. maintains that the Division did not accommodate her needs regarding visitation. Again, we disagree. In his decision, the judge noted that the Division had been slow to arrange weekend visitation; however, that problem only lasted for a relatively brief time. Furthermore, once weekend visits were arranged, D.L. did not attend many of the scheduled visits.

D.L. also contends that the Division erred by failing to reschedule T.L.B.'s medical appointments. D.L. claimed that she was working long hours and never knew in advance when she would be working. It is clear, however, that the Division could not reasonably be expected to arrange for visits at times D.L. would find suitable. Moreover, the Division gave D.L. the opportunity to call the doctors directly and change the appointments but she never availed herself of that opportunity.

D.L. further argues that the Division failed to consider her parents as a possible placement for T.L.B.; however, the Division did consider D.L.'s parents but determined that the placement was inappropriate because the grandparents were in their seventies and had medical problems. Although D.L.'s mother testified at trial that she was willing and able to assume responsibility for T.L.B.'s care, her testimony was at variance with the position she took when the Division first considered her as a caregiver. In any event, given their advanced ages and medical problems, the record supports the judge's finding that T.L.B.'s maternal grandparents were incapable of providing the child with the care that he requires.

We also reject D.L.'s assertion that the Division should have considered the maternal grandparents as kinship legal guardians, which may be appropriate if adoption is "neither feasible nor likely." N.J.S.A. 3B:12A-6(d)(3). Because T.L.B.'s foster parents have expressed an interest in adopting him, kinship legal guardianship was not an option in this case.

D.L. additionally contends that the judge erred by finding that termination of her parental rights will not do more harm than good. In our judgment, this contention is without merit. Here, Dr. Chaney testified that there was no significant bond between D.L. and T.L.B. Dr. Chaney also said that T.L.B. was "attached" to his foster parents and would be harmed if he were removed from the foster home. Defendant's expert, psychologist Dr. Robert Tannenbaum, testified that T.L.B. knew his mother as a "benign influence" and that the bond between them was "evolving slowly." He stated that "at some point," D.L. "might qualify" to take on parenting responsibilities. In light of this evidence, the judge properly found that termination of D.L.'s parental rights would not do more harm than good.

We have considered D.L.'s other contentions and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.


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