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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 19, 2008

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.A., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.S.A., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division - Family Part, Morris County, Docket No. FG-14-22-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 10, 2008

Before Judges Cuff and Baxter.

D.A. appeals from a February 7, 2008 order that terminated her parental rights to her daughter, D.S.A., born August 7, 2002, and awarded guardianship of the child to the Division of Youth and Family Services (DYFS) for purposes of adoption.*fn1 We affirm.

I.

DYFS involvement with D.A. began on January 18, 2006, when an anonymous caller reported that D.A. and her boyfriend were always "fighting and throwing things around the apartment all night long." The caller also said she could hear a child's voice and realized the child was up all night. The referent reported that the couple and the child were living in a motel after having moved to New Jersey from Ohio a few months earlier.

DYFS opened an investigation. D.A. admitted a longstanding addiction to crack cocaine, but insisted that she had been clean since August 2005. She advised the caseworker that she had left her two older children, ages ten and twelve, with their father in Ohio when she moved to New Jersey. She also admitted that Ohio Child Protective Services had taken custody of a third child immediately following the child's birth, because D.A. was incarcerated. D.A. also acknowledged using drugs at the beginning of her pregnancy with D.S.A.

At the insistence of DYFS, D.A. submitted to a urine drug screen on February 1, 2006. A few days later, after receiving the lab results that showed the presence of cocaine and marijuana, DYFS initiated an emergency removal of the child. DYFS placed her in a foster home, where she has remained ever since. In light of the test results and D.A.'s long history of substance abuse, DYFS recommended in-patient drug treatment, which D.A. refused to even consider. Although she agreed to participate in intensive out-patient drug treatment, she canceled her initial appointment and refused to cooperate.

At a March 30, 2006 compliance review hearing, the judge ordered DYFS to continue to offer out-patient drug treatment and to provide weekly supervised visitation. Such visitation did not occur, however, because in early April 2006, D.A. moved back to Ohio to be nearer to the two children she had left behind. By doing so, she left D.S.A. in New Jersey and forfeited the opportunity for supervised visitation that the court had ordered. From Ohio, D.A. requested telephone contact with her daughter, which DYFS agreed to arrange; however, many of those planned contacts were unsuccessful because D.A. did not have a working telephone.

In fact, D.A. had no contact with DYFS or her daughter between April 2006, when she moved to Ohio, and August 28, 2006. On that day, D.A. contacted her DYFS caseworker and acknowledged a relapse in her cocaine addiction, stating that "the phone had been physically too heavy for her to pick up and that is why she had not reached out to [DYFS]." During that same conversation, D.A. admitted that she had been engaging in prostitution in exchange for cocaine. In response, the caseworker informed D.A. that unless she completed intensive drug treatment, obtained stable housing and was able to submit negative urine screens, she was in danger of losing her daughter. That conversation apparently had an impact on D.A. because by mid-September 2006, she had enrolled in drug treatment at TCN Behavioral Health Services, Inc. (TCN) in Ohio and was also attending AA/NA meetings.

During the summer of 2006, DYFS arranged interstate evaluations of D.A.'s paternal grandparents, her maternal grandfather, two maternal aunts, and a maternal step-aunt and uncle whom D.A. had identified as potential placements. All were ruled out, mainly because they stated they were unable to care for D.S.A.

D.A.'s progress in drug treatment at TCN did not last long, because by December 15, 2006, TCN reported that D.A. had not attended treatment sessions for months. Consequently, TCN discharged her from its program.

In late December 2006, D.A. submitted to a psychiatric evaluation with the goal of re-establishing drug treatment. She admitted to the examiner that she had used cocaine within the last few weeks. She also admitted to having robbed someone six months earlier to obtain money to buy drugs. The examiner diagnosed D.A. with major depression and poly-substance dependence.

In mid-December 2006, DYFS purchased airline tickets for D.A. to fly to New Jersey to attend a compliance review hearing and visit with her daughter. That visit was the first time D.A. had seen her daughter since she left New Jersey for Ohio nine months earlier. By the end of January 2007, TCN notified DYFS that D.A. was back in treatment and had attended three recent sessions. In light of that progress, DYFS again arranged transportation for D.A. to attend a February 2007 compliance review hearing and visit with her daughter.

On May 23, 2007, Ohio Child Protective Services officials conducted a drug test on D.A., in which she tested positive for cocaine. Earlier that month, she had informed her therapist at TCN that she recently lost her job, was "struggling" financially, and had nowhere to live with her two children. She also admitted to a different staff member at TCN that she had relapsed a few months earlier. Thus, the May 23, 2007 relapse was D.A.'s fourth relapse in less than eighteen months.

In June 2007, DYFS arranged transportation for D.A. to travel from Ohio to New Jersey to attend a permanency hearing. The court found that in light of D.A.'s numerous relapses and apparent inability to resolve her addiction, reunification of D.S.A. with her mother was not a viable option. Accordingly, the judge directed DYFS to file a complaint for guardianship within sixty days. The judge also ordered D.A. to cooperate with psychological and bonding evaluations.

In anticipation of trial, DYFS asked Dr. Elizabeth Smith to conduct a psychological evaluation of D.A. and bonding assessments of the child with her mother and with the foster mother. In the psychological evaluation, Smith reported D.A.'s acknowledgment that she had been addicted to cocaine for the last nine to ten years and had "relapsed real bad" after she left New Jersey and returned to Ohio. D.A. admitted that her first exposure to narcotics was at the age of seven when she tried marijuana, becoming a regular user of marijuana by the time she was fourteen. Her use of crack cocaine began at age twenty. At the time of the evaluation, D.A. was twenty-nine years old. Smith also reported D.A.'s admission that her two older children in Ohio had witnessed a great deal of domestic violence between herself and the children's father.

Smith, who testified at trial, opined that because D.A.'s cocaine addiction was prolonged and deep-seated, D.A.'s addiction was resistant to treatment and she was at high risk for relapse. Consequently, she opined that any children in her care would be subject to neglect. Smith also observed that D.A. put her own needs ahead of her children's, as evidenced by: 1) her abandonment of her older children in Ohio, leaving them with an abusive and irresponsible father, to come to New Jersey with her boyfriend; and 2) her emotional abandonment of D.S.A. when D.A. failed to maintain consistent communication by phone or mail. Smith opined that D.A. "is a very troubled young woman with a long history of instability and substance abuse."

In the bonding evaluation, Smith observed that D.S.A. "has a stable life with a caring foster mother and is doing well." The child "displayed a positive, secure attachment to her foster mother." Smith also observed that although the child "retains a strong attachment to her mother," that attachment is "not a secure one." After remarking that D.S.A. has been harmed by her mother's "inconsistent contact," Smith opined that "[p]ermanent separation from [her mother] and her siblings would result in some degree of emotional harm [that] could be mitigated with treatment and the stability of adoption . . . ." Ultimately, Smith recommended termination of D.A.'s parental rights, opining:

[In] situations such as this, the child's need for permanency and stability must be considered in spite of the child's continued attachment to the parent. It is this examiner's opinion that [D.A.] remains a high risk for abuse and neglect in spite of her attempts at rehabilitation. She also has psychological problems that impede her ability to build a stable life. Consequently, there is a very high risk that if [D.S.A.] were returned to her care, she would be in danger of abuse and neglect and subject to be placed in foster care again. [D.S.A.] would be exposed to an unstable and dangerous environment. Hence, it is the opinion of this examiner that [D.A.'s] parental rights should be terminated and [D.S.A.] released for adoption by her foster parent.

The Law Guardian also obtained a psychological evaluation and comparative bonding evaluation, which was performed by Dr. Rachel Jewelowitz-Nelson. Like Smith, Jewelowitz-Nelson opined that D.A. has personality deficits and psychological problems that prevent her from providing a safe and secure environment for her daughter. She concluded that termination of D.A.'s parental rights would consequently not do more harm than good.

D.A. also underwent an evaluation by an expert retained on her behalf, Dr. Ronald G. Silikovitz. He opined that because D.A. had been substance-free since May 2007, the goal of family reunification should be pursued.

In an oral opinion rendered on February 7, 2008, Judge Dangler found that DYFS had satisfied by clear and convincing evidence the statutory requirements for termination of parental rights. He accordingly entered the guardianship order we have described. In so doing, the judge specifically found Silikovitz's testimony "not to be credible throughout the trial." The judge observed that Silikovitz downplayed the significance of D.A.'s instability and relapses, and seemed to be unaware of some of her past relapses.

On appeal, D.A. maintains that: 1) the evidence was insufficient to satisfy the heavy burden of proof cast upon DYFS by N.J.S.A. 30:4C-15.1a; and 2) because "no particular act of abuse or cruelty has been alleged, it cannot be said clearly and convincingly that there has been harm to [D.S.A.'s] health and development." Specifically, D.A. maintains that by the time of trial, she had obtained permanent housing and employment, was free from drug use, and was able and willing to eliminate the harm facing her daughter. In a pro se letter, D.A. maintains that she was not afforded sufficient time to establish her fitness for parenting and the judge should have declared DYFS's guardianship complaint premature.

II.

It is well-established that parents have a constitutionally protected right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed. 2d 551, 558 (1972). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982).

But a parent's constitutional right to maintain the parental relationship is not absolute. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). Indeed, it is well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, A.W., supra, 103 N.J. at 612, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. Id. at 600.

Pursuant to N.J.S.A. 30:4C-15.1a, DYFS can obtain a termination of parental rights on the grounds that the best interests of the children require this course if each of the following elements is proven 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 or 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) [DYFS] 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(1)-(4).]

The statute "prescribes an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). "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." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Appellate review of a trial court's decision to terminate parental rights is limited . . . ." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). The findings of the trial judge "are considered binding on appeal when supported by adequate, substantial, and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). Therefore, we should not disturb the factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

Having thoroughly reviewed the testimonial and documentary record, we are satisfied that DYFS established by clear and convincing evidence that D.A. has been unwilling or unable to alleviate the harm she has caused D.S.A., and that termination of her parental rights to her daughter will not do more harm than good. We are also satisfied by clear and convincing evidence that DYFS made more than reasonable efforts to help D.A. address the cocaine addiction that led to D.S.A.'s removal and that the court carefully considered alternatives to termination of D.A.'s parental rights.

In particular, the record amply demonstrates that, despite D.A.'s recent period of recovery, her long-standing addiction and numerous relapses evidence an inability to eliminate the harm she had already caused her daughter. Likewise, D.A.'s impulsive move to Ohio, which resulted in no face-to-face contact between mother and daughter for a period of nine months and few telephone contacts, also demonstrates D.A.'s inability to provide a safe and stable environment. Dr. Smith's opinion, which Judge Dangler credited, amply satisfies DYFS's burden of proving that delay of permanent placement will add to the harm. We agree with Judge Dangler's conclusion that the first two prongs are therefore satisfied.

As to the third prong, the record demonstrates DYFS provided extensive services to D.A., including drug treatment, monitoring of group therapy in Ohio, as well as transportation, lodging and phone contact so that D.A. could visit her daughter in New Jersey. Additionally, DYFS satisfied its burden of considering alternatives to adoption when it thoroughly investigated numerous relatives proposed by D.A. We thus agree with the judge's finding that the third prong was satisfied. As to the fourth prong, which requires DYFS to establish that termination will not do more harm than good, the opinions provided by Drs. Smith and Jewelowitz-Nelson amply demonstrate that the secure and affectionate attachment between D.S.A. and her foster mother would override any emotional harm to D.S.A. that would be caused by termination of D.A.'s parental rights, thereby establishing that termination would not do more harm than good.

Thus, the judge's findings of fact are well-supported by the record. The judge also properly applied the facts to the governing law. Accordingly, we conclude that D.A. has provided no meritorious basis upon which to disturb Judge Dangler's conclusion that DYFS satisfied the heavy burden cast upon it by N.J.S.A. 30:4C-15.1a.

Last, we turn to D.A.'s claim that there was, in effect, a rush to judgment that denied her sufficient time to establish parental fitness. We disagree. D.S.A. cannot and should not be expected to wait for her mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). "A child is not a chattel in which a parent has an untempered property right." Id. at 110. Children must not languish indefinitely in foster care while a birth parent attempts to correct the conditions that resulted in an out-of-home placement. Id. at 111. "A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." Ibid.

As our opinion in C.S. makes abundantly clear, there comes a time when a child's need for permanency outweighs the parent's right to maintain a relationship with her child. Ibid. That time has now come for D.A. In light of D.A.'s history of four relapses in a period of eighteen months, and Smith's opinion that D.A.'s chances of relapse remain extraordinarily high, we accept the trial judge's conclusion that the likelihood of D.A. maintaining a drug-free life is too small to outweigh the harm to D.S.A. of delayed permanency.

Affirmed.


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