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New Jersey Division of Youth and Family Services v. N.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 15, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
N.C., DEFENDANT-APPELLANT, IN THE MATTER OF THE GUARDIANSHIP OF D.C. AND D.C., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, No. FG-09-158-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2008

Before Judges Wefing and LeWinn.

N.C. appeals from a judgment terminating her parental rights to her twin daughters, D.I.C. and D.A.C. After reviewing the record in light of the contentions advanced on appeal, we affirm.

D.I.C. and D.A.C. were born on June 7, 2005. N.C. has not had the care and custody of the girls since August 31, 2005, when the New Jersey Division of Youth and Family Services (DYFS) effected an emergency removal. N.C. has five other children, none of whom are in her care. They are: N.J., a daughter, now emancipated and a resident of Virginia; H.C. Jr., a son, now seventeen, who resides with N.J.; D.R.C., a daughter born in April 2000 who died from complications caused by shaken baby syndrome; and R.P., a son, now nearly seven years old, who resides with his father. Shortly after the trial court gave its decision in this matter, N.C. gave birth to another child, D.M.C., who was placed in the custody of the Virginia Department of Social Services.

When H.C. Jr. was an infant, he resided in Virginia with his mother. While in N.C.'s care, he suffered serious injuries on several occasions, including retinal hemorrhages and subdural hematomas. Virginia's Child Protective Services removed H.C. and placed him temporarily in foster care. After he was returned to N.C., the agency received another referral after she was seen beating the child in the head. Following a determination of physical abuse, a Virginia court in December 1997 awarded custody of H.C., Jr., to N.C.'s mother M.J. In 2004, M.J. decided to return the boy to N.C. He was living with her in August 2005 when DYFS made the emergency removal. As noted earlier, he now lives in Virginia with his half-sister under a kinship legal guardianship arrangement, and he is not a subject of this appeal.

In May 2000, when D.R.C. was approximately one month old, she was admitted to the hospital in Virginia with bilateral retinal hemorrhaging and severe brain damage, attributed to shaken baby syndrome. She was placed on life support machines and remained in a persistent vegetative state from her admission until her death in June 2004. At one point, N.C. was observed changing the settings on the machines that controlled the infant's breathing. At other times, she would fall asleep on top of the baby. N.C. left Virginia in March 2001, leaving no forwarding address or phone number; before the child's death in 2004, she returned on one occasion to visit the hospital.

N.C.'s third child, R.P., was born on January 21, 2002, and lived with his mother in New York until he also was removed from her custody. When R.P. was approximately eighteen months old, the New York Family Court placed custody with R.P.'s father, finding that he had suffered a fractured rib while in his mother's care and that she used drugs in his presence.*fn1 The order entered by the New York court prohibited N.C. from contact with R.P. in the absence of child protective services.

Less than two years later, D.I.C. and D.A.C. were born in Jersey City. When New York learned that N.C. had moved to New Jersey with H.C. Jr. and had given birth to D.I.C. and D.A.C., it contacted DYFS, which proceeded to make an emergency removal.

The trial in this matter was brief. DYFS presented two witnesses, Vanessa Merced, the case worker for D.I.C. and D.A.C., and Dr. Donna LoBiondo, a psychologist. Dr. LoBiondo testified that N.C. had refused to take the tests Dr. LoBiondo had selected to assist her in making a diagnosis, saying that she had taken psychological tests before and she considered them prejudiced against her. Based upon her interview of N.C. and a review of the pertinent records, Dr. LoBiondo reached the conclusion that N.C. had a personality disorder and displayed "significant evidence of narcissistic functioning." Dr. LoBiondo also observed the two girls with N.C. and with their foster mother and described the differences she observed in the girls' interaction with the two women.

[T]he foster mother seems to have a gentler style that's peppered with a lot of play as a strategy to get the children feeling comfortable enough to learn things, try new things and interact.

[N.C.] appears to have a style that is somewhat more demanding. There's more of an agenda focused quality to it. There seems to be a determination on her part to get results rather than to put herself in the children's shoes and devise a strategy around where they're at so to speak in order to get the same thing. So there's a bypassing of--there was a habitual bypassing of their experience in favor of her own.

She described the bond she observed between the girls and N.C. in the following manner:

They definitely know her and they're familiar with her but when adults are with children, they set a tone, all adults do, and there was a tone that was set in that room that--where I observed the children's behavior to be somewhat wary, somewhat hesitant to interact and they seem to need to feel very careful rather than to freely play and explore things.

In Dr. LoBiondo's opinion, the girls' foster mother was their psychological parent, and the children faced a risk of harm if removed from her care. When asked whether she was prepared to say that terminating N.C.'s parental rights to the two girls would not cause them severe harm, she responded that she was not prepared to say there would be no harm and not prepared to say there would be severe harm.

The record also contains the reports of two earlier evaluations that were performed--a psychological evaluation by Manuel Iser, Psy.D., and a psychiatric evaluation by Vivian Schnaidman, M.D. Dr. Iser stated in his report that if the children were placed in N.C.'s custody, they would be at risk of physical harm. Dr. Schnaidman diagnosed N.C. as having narcissistic personality disorder, with a poor prognosis. Dr. Schnaidman described N.C. as "simply self-centered, manipulative, and [with] a short fuse."

N.C. testified on her own behalf. She did not, however, present any countervailing expert testimony at trial.

On appeal, N.C. makes the following arguments.

POINT ONE:

THE TRIAL COURT ERRED IN TERMINATING N.C.'S PARENTAL RIGHTS TO HER CHILDREN BECAUSE THE FINDINGS OF THE TRIAL JUDGE AND THE EVIDENCE PRESENTED AT TRIAL DO NOT SUPPORT THE LEGAL CONCLUSION THAT ALL FOUR PRONGS OF THE STATUTORY TEST UNDER N.J.S.A. 30:4C-15.1(a) FOR TERMINATION OF PARENTAL RIGHTS WERE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.

A. THE EVIDENCE PRESENTED AT TRIAL FAILS TO SUPPORT THE TRIAL JUDGE'S FINDING THAT THE CHILDREN'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL BE SERIOUSLY IMPAIRED BY THE PARENTAL RELATIONSHIP.

B. DYFS FAILED TO SHOW THAT N.C. IS UNABLE OR UNWILLING TO ELIMINATE THE HARM AND DELAYING PERMANENT PLACEMENT WILL ADD TO THE HARM.

C. THE TRIAL COURT ERRED IN FINDING THAT DYFS MADE DILIGENT EFFORTS TO PROVIDE SERVICES TO HELP THE PARENT CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILDREN'S PLACEMENT AND DILIGENTLY PURSUED ALTERNATIVES TO THE TERMINATION OF N.C.'S PARENTAL RIGHTS.

D. THE TRIAL COURT ERRED IN FINDING THAT THE TERMINATION OF N.C.'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

Parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982). That interest, however, is not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). Indeed, "[t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid.

Striking the balance between these competing interests is achieved through the "best interests of the child" standard. Ibid. That standard, codified at N.J.S.A. 30:4C-15.1(a), provides that parental rights may be terminated when:

(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).]

These four prongs "are not discrete and separate; they relate to and overlap with one another" to determine the best interests of the child. K.H.O., supra, 161 N.J. at 348. This determination is "extremely fact sensitive." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). Before ordering termination of parental rights, a trial judge must be satisfied that this standard is met by clear and convincing evidence.

N.J. Div. of Youth and Family Services v. A.W., 103 N.J. 591, 611-12 (1986).

We have reviewed the record before us, guided by these principles and in view of N.C.'s contentions. We are satisfied that the judgment on appeal should be affirmed substantially for the reasons stated by Judge DeCastro in her comprehensive written opinion of December 20, 2007.

Affirmed.


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