March 13, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF E.J., JR., J.J. & N.J., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-61-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 29, 2009
Before Judges Axelrad, Lihotz and Messano.
Defendant S.W. appeals from the Family Part's October 25, 2007 order that terminated her parental rights to her twin sons, E.J., Jr., and J.J., born October 9, 2003, and her daughter, N.J., born August 16, 2005.*fn1 She contends that the decision to terminate her parental rights was "against the weight of [the] submitted evidence and testimony" adduced by plaintiff, the Division of Youth and Family Services (D.Y.F.S.). Additionally, S.W. contends, for the first time, that the children were "never placed together in contradiction of D.Y.F.S. policy and the Child's Placement Bill of Rights[.]" As a result, she argues "visitation should continue between the children."
We have considered defendant's arguments in light of the record and applicable legal standards. We affirm.
D.Y.F.S. became involved with S.W. when her first son, A.J., was born in 2002. At that time, defendant admitted using heroin and cocaine during the pregnancy. However, when both she and the child tested negative for drugs, D.Y.F.S. released A.J. to his mother, and he resided with defendant and E.J. until the spring of 2003. At that time, defendant relapsed into drug use and her mother took custody of A.J.*fn2
On September 6, 2003, D.Y.F.S. received another referral after defendant presented herself to the Monmouth Medical Center seeking assistance for her substance abuse. Defendant, who was twenty-four weeks pregnant at the time, admitted to using heroin and cocaine during her pregnancy, and she had received little pre-natal care. Before a D.Y.F.S. caseworker was able to respond, however, defendant left the hospital against medical advice and efforts to locate her were unsuccessful.
On October 14, 2003, D.Y.F.S. received another referral that defendant had given birth to twin boys, both of whom tested positive for cocaine and heroin. The twins were deemed to be "medically fragile" by D.Y.F.S., and they remained in the Neonatal Intensive Care Unit for approximately two months due to complications from their early birth. Both underwent surgery to repair bilateral inguinal hernias. Defendant executed a D.Y.F.S. case plan, agreeing to undergo substance abuse and psychological evaluations. She acknowledged using marijuana, cocaine and other opiates, and admitted that she had been incarcerated for five months in 1998 for possession of heroin. On December 4, 2003, defendant executed an informed consent for the twins to be placed in foster care for six months after D.Y.F.S. determined that placement with their maternal grandmother was not appropriate.*fn3
On December 15, 2003, defendant was admitted to the Carrier Clinic for inpatient substance abuse treatment and was discharged after completing nineteen days of the twenty-eight-day program because of the limits of her insurance coverage. On February 3, 2004, she entered Riverview Medical Center's Addiction Recovery Services Intensive Outpatient Program, attending group sessions, Alcoholics Anonymous (AA), and Narcotics Anonymous (NA) meetings. Defendant was allowed visitation with her children and was subjected to drug screening, yielding one positive drug screen for cocaine. On March 31, 2004, she was discharged after completing the program.
On February 17, 2004, defendant was psychologically evaluated by Dr. Alan Lee. She acknowledged a long history of drug and alcohol abuse, beginning at age seventeen. Lee found defendant to be "verbally hostile, belligerent, and  abusive[,]" lacking "personal and emotional awareness[.]" Lee concluded defendant displayed "a significant affective (mood) disorder, most likely depression," of which she was unaware. Her depression was a strong contributor to her irritability, anger management problems, and to her substance abuse. Lee found that defendant "trie[d] to eschew personal responsibility for [taking drugs while pregnant] and minimize[d] and distort[ed] her problems." Lee did not support reunification of defendant with her children.
During April and May 2004, defendant failed to attend two scheduled psychiatric evaluations, failed to return her case manager's phone calls, failed to attend follow-up counseling services arranged by D.Y.F.S., and failed to attend supervised visitation sessions. Her whereabouts became unknown. On June 3, 2004, D.Y.F.S. filed a complaint for, and was awarded custody of, E.J., Jr. and J.J. Continued efforts to supply defendant with services were met with her sporadic attendance.
On September 8, 2004, defendant waived her right to a fact-finding hearing and stipulated that her drug use "during pregnancy le[d] to pre-term labor resulting in premature birth of both children who suffered physical harm." The court ordered defendant to continue intensive outpatient therapy on an individual basis, submit to frequent random urine screens, attend AA and NA meetings and provide verification of that attendance, maintain employment and a stable residence, and attend parenting skills education and anger management counseling. Although supervised visitation with the children resumed, defendant's participation was still sporadic, and, by February 2005, it was again terminated.
In March 2005, while defendant continued to resist services, D.Y.F.S. filed an order to show cause and complaint for guardianship of the twins. On April 24, 2005, defendant was arrested on an outstanding warrant for loitering in a known drug neighborhood. On August 16, 2005, defendant gave birth to N.J. D.Y.F.S. immediately filed a complaint for custody of the child who was removed from defendant's care and temporarily placed with her maternal grandmother based upon defendant's non-compliance with services in the pending custody matter.
On October 19, 2005, Lee conducted a second psychological evaluation of defendant, finding her to have more accurate insight into her situation and accepting more personal responsibility for her actions. Lee recommended that she continue with individual counseling, random drug testing, and attend support groups. He also recommended that she receive specific training as to the special medical and developmental needs of the twins.
The following month, Lee conducted a bonding evaluation between defendant and her sons. As to E.J., Jr., Lee observed that he did not know defendant, and, while his opinion as to whether the child had formed any significant psychological attachment or bond with defendant remained equivocal, Lee determined their interactions suggested the potential for further attachment and bonding. However, Lee opined there was low risk for significant, enduring or irreparable psychological harm if the relationship was terminated. Lee made similar observations and conclusions regarding defendant's relationship with J.J.
Concluding that both defendant and E.J. were now complying with services, on December 15, 2005, D.Y.F.S. placed N.J. in the custody of her biological parents. Similarly, the litigation regarding E.J., Jr. and J.J. was terminated, with D.Y.F.S. adopting a revised permanency plan of reunification. In March 2006, the twins were placed in the custody of their biological parents while D.Y.F.S. continued to monitor the family.
On April 30, 2006, D.Y.F.S. received a referral that defendant was using crack and heroin. The referral further alleged that there was no food in the home, that E.J., Jr. had been sick with a fever and had not received any medical treatment, and that there was domestic violence between defendant and her husband.*fn4 On May 1, 2006, D.Y.F.S. caseworker Karen Lell made an unannounced visit to defendant's residence that revealed nothing particularly inappropriate. After the visit, D.Y.F.S. found the claim of neglect to be unfounded, but left the case open for services.
The next day, however, D.Y.F.S. received a referral from the Asbury Park Police Department. At approximately 7 a.m., the three children were found alone in a van in Asbury Park and were transported to the hospital. They had been in the van for an undetermined amount of time, with the keys in the van and the doors unlocked. Based upon their investigation, the police determined that the van had run out of gas, that defendant and E.J. had borrowed money from a homeless man, bought drugs instead of buying gas, and left the three children alone in the van throughout the night. When they were located, defendant and E.J. were arrested on three counts of endangering the welfare of a child. Lell observed the children at the hospital where they were wearing urine soaked diapers and eating large amounts of food. E.J., Jr. appeared lethargic and was running a low-grade fever; he was placed on intravenous fluids to treat dehydration. All three children were released to the custody of D.Y.F.S.
After initially denying to Lell that she had purchased or used drugs, defendant admitted that she had relapsed on cocaine three days earlier because E.J. had also relapsed. E.J. also confirmed that he and defendant were smoking crack while watching the van from across the street.
On May 4, 2006, D.Y.F.S. filed a complaint for custody of all three children, and during the ensuing months the children remained in foster care. On August 24, 2006, D.Y.F.S. filed its complaint seeking guardianship of the children.
Defendant was incarcerated for four months on the child endangerment charges and was then released to the drug court program. She was eventually placed at Turning Point and successfully completed this program with a stay of forty days. Thereafter, and during trial, defendant remained a resident of Epiphany House. In January 2007, D.Y.F.S. established bi-weekly visitation between defendant and the children.
Meanwhile on September 28, 2006, the twins, who remained classified as "medically fragile," were placed in their current foster home specifically to address their needs. At trial, their foster mother testified that they received occupational, physical, speech and behavioral therapy through their daycare, and were involved in a pre-school handicap program. She also testified that she and her husband wished to adopt the boys if possible. Noting the boys' nonverbal behavior when they initially came to live with her, she testified as to their continued improvement, a fact corroborated by the pediatric nurse assigned to their case.
A pediatric neuro-developmental evaluation was performed on the twins by Dr. Denise Aloisio. She diagnosed E.J., Jr. as having developmental delays and evidencing features suggestive of fetal alcohol spectrum disorder due to prenatal exposure to alcohol. Aloisio diagnosed J.J. with language and motor delays, a history of extreme prematurity, significant social stressors, and prenatal exposure to substances with some features suggestive of fetal alcohol spectrum disorder.
Dr. Karen Wells, a licensed psychologist, completed a psychological evaluation of defendant, bonding evaluations of defendant and the three children, the twins and their foster parents, and N.J. and her foster parents.*fn5 Based upon a diagnostic battery of tests and her interview session, Wells determined defendant was unlikely to admit responsibility for personal failures or family difficulties, and projected blame onto others. Wells concluded that defendant continued to pose a high risk to her children "in light of her substance abuse history, early engagement in treatment services, and failed efforts in the past to demonstrate sustained abstinence." Wells noted the continued uncertainty regarding defendant's ability to care for her children given the "potential for relapse, her continued minimization of responsibility as it relates to situations precipitating her children's separations from her, and her failure to adequately appreciate the extent and nature of the children's emotional, behavioral, and developmental needs." Wells recommended that DYFS continue to pursue guardianship of the children.
At trial, Wells emphasized that defendant's parenting capacities were limited. She also expressed concern that defendant had only recently entered into a substance abuse program and had relapsed in the past. Wells expressed concern about how reunification with E.J. would affect defendant's ability to parent, since he had served as a trigger for her relapses in the past. In sum, Wells concluded that reunification posed a significant risk to the children.
Regarding her bonding evaluations with defendant and the children, Wells noted that while defendant maintained a maternal bond, she had not been available for the day-to-day needs of the children. In her absence, the children viewed others who had "assumed care for them on a consistent and reliable basis as maternal figures." Wells concluded that the children would not "suffer enduring and irreparable emotional and psychological harm" if permanently separated from defendant.
Wells also evaluated E.J., Jr.'s and J.J.'s interaction with their foster parents. In her report, she noted the existence of a "mutual parent-child bond, with both [foster parents] relating and responding as parental figures for the children, consistent with the children's perceptions and expectations." Wells concluded that the foster parents would continue to attend to the children's needs, and that the objective of foster home adoption was "clinically supported." At trial, Wells testified that there was a parent-child bond between the boys and their foster parents, and that the twins would experience psychological and emotional difficulties if removed from their care, including regressive behaviors in the speech, development and social skills they had acquired.
Finally, Wells conducted a bonding evaluation between N.J. and her foster parents. In her report, Wells noted a "mutual parent-child bond, with [N.J.] relating and responding to [her foster parents] as her Daddy and Mommy." Wells supported D.Y.F.S.'s plan to pursue guardianship and afford N.J. the opportunity to be adopted by her foster parents. At trial, Wells testified that if N.J. were removed from the foster parents' household, she would experience emotional difficulties and would exhibit negative behaviors as a result, and any delay in permanency would heighten these concerns.
Defendant testified at trial. Regarding the events of May 1 and 2, 2006, she admitted going to Asbury Park in the afternoon to buy drugs, returning later in the day with another man, and doing drugs with him and E.J. She further admitted taking the children to Asbury Park later that evening, running out of gas, and leaving them with E.J. while she went with someone to find some gas. She claimed that she left the area when her husband told her that the police had arrived and taken the children from the van.*fn6 Since her placement at Epiphany House, defendant claimed to be fully engaged in all aspects of her treatment she had a sponsor and attended both AA and NA meetings, and had no positive urine screenings. Neither defendant presented any expert testimony at trial.
In a written opinion, the trial judge determined that D.Y.F.S. had satisfied the statutory criteria for termination of defendant's parental rights. Applying the four-prong standard set forth in N.J.S.A. 30:4C-15.1, the judge found that the health of all three children had been endangered by their relationship to their biological mother. Defendant had admitted using heroin and cocaine during her pregnancy with the twins, "'leading to pre-term labor resulting in the premature birth of both children who suffered physical harm.'" The events of May 1 and 2, 2006, endangered the health of all three children because defendant "brought them to a location where [she]  bought crack cocaine, used the crack cocaine and then left the children alone in a vehicle for some period of time." In applying the second prong, the judge concluded that both parents had not been able to eliminate the harm facing the three children, or provide them with a safe home. Although defendant was in long term recovery at Epiphany House, the judge accepted Lee's conclusions that defendant "could not be 'currently supported as an independent caregiver of minor children.'" The judge took note of Wells' report and testimony, accepting her conclusions regarding defendant's potential for relapse, her continued minimization of responsibility for the situations leading up to her children's removal, and her failure to adequately appreciate her children's needs.
The judge concluded that D.Y.F.S. had met its burden of proof as to the third prong of the statutory standard, noting that the Division had supplied a "plethora" of services that resulted in the temporary reunification of the family. However, the events of May 1 and 2, 2006, changed things. Though D.Y.F.S. continued to provide services thereafter, there were no alternatives to termination of parental rights, particularly since no relative was identified as a placement resource.
Finally, the judge noted the bonding evaluations done between the three children and their mother, and between the two respective foster families and the children. He observed that the twins had no psychological bond with defendant, had made significant progress while in the care of the foster family, and that their removal from their current caregivers, with whom they had a psychological bond, would create long-term psychological and emotional difficulties. The judge found that N.J. had made a "wonderful adjustment" to her current placement, and "[h]er removal would bring long-term adverse emotional consequences" to the child. The judge concluded that the needs of the children for permanency and stability "emerge[d] as a central factor in [his] decision" to terminate defendant's parental rights. He entered the order under review.
We begin by noting some basic principles. The scope of our 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); see also In re Guardianship of Jordan, 336 N.J. Super. 270, 273 (App. Div. 2001). In "reviewing the factual findings and conclusions of a trial judge," an appellate court is "obliged to accord deference to the trial court's credibility determination and the judge's 'feel of the case' based upon his  opportunity to see and hear the witnesses." Div. of Youth and Family Services v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13, (1998)), certif. denied, 190 N.J. 257 (2007). While deference to the trial court's findings is appropriate, where a fact-finding error is alleged in a termination of parental rights case, "the traditional scope of review is expanded." Div. of Youth and Family Services v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). Reversal is required if the trial judge's findings were "so wide of the mark that a mistake must have been made." Ibid. (citations omitted).
When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:
(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 [D]ivision 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) through (4); In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
These four prongs "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 first prong involves inquiry into whether there has been "endanger[ing] of the child's health and development resulting from the parental relationship," and whether there will be future harm to the child's safety, health or development if the parental relationship is not terminated. Ibid. The focus of the inquiry is not necessarily on a "single or isolated harm, or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.
Defendant argues that there was insufficient evidence of any harm caused to the children. She contends that D.Y.F.S. failed to adduce any medical proof linking her drug use to the twins' neurological and behavioral problems, and that her actions in May 2006 caused no harm to any of the children. We disagree.
"Drug use during pregnancy, in and of itself, does not constitute a harm to the child under [the first prong]." Id. at 349. However, the Court in K.H.O. noted that "[t]he injury suffered at birth from fetal drug addiction has been graphically documented," and "an infant born addicted to drugs and suffering the resultant withdrawal symptoms has suffered harm that endangers her health and development within the meaning of [the first prong]." Id. at 350-51.
Here, E.J., Jr. and J.J. tested positive for cocaine and heroin at birth. While they did not exhibit symptoms of withdrawal, they were medically-challenged at birth and remained hospitalized for a significant period of time. See id. at 351 (noting one-month hospitalization after birth was sufficient demonstration of harm). They have manifested the long-term effects of fetal exposure to drugs and alcohol. Such a finding was amply supported by the expert reports in the record that linked the twins' developmental problems to defendant's drug abuse.
Defendant's assertion that her actions on May 1 and 2, 2006 did not cause harm to her children is beyond reason. The children were left unattended for an unknown period of time during the night and early morning hours in a van parked on the streets of Asbury Park with the keys in it. Defendant acknowledged that she and her husband ingested drugs before bringing the children with them, and there is some indication that defendant took more drugs while in Asbury Park. When the children were found, they displayed obvious signs of neglect--hunger and dirty diapers. E.J., Jr. was dehydrated and required intravenous fluids. This evidence supports the trial court's finding that defendant's actions on May 1 and 2, 2006 endangered the health and safety of the children and was sufficient to meet D.Y.F.S.'s burden under the first prong.
The second prong contemplates a determination of parental unfitness. D.Y.F.S. must prove that "the harm is likely to continue" as a direct result of the parent's inability or unwillingness to eliminate the harm. K.H.O., supra, 161 N.J. at 348. The second prong may be proven by: indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child. [Id. at 353.]
The potential for further harm caused by a "delay in permanent placement" is also a consideration under the second prong. N.J.S.A. 30:4C-15.1(a)(2). "In other words, the issue becomes whether the parent can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself." N.J. Div. of Youth and Family Services v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Defendant argues that the judge erred in finding that D.Y.F.S. satisfied this prong because by the start of trial, she had been sober for nearly one year.*fn7 However, despite defendant's recent successes in the struggle with her addiction, the trial judge was fully justified in concluding that the importance of the early stages of abstinence were outweighed by her long-standing abuse, her repeated failures in the past to remain abstinent, and her indifference to D.Y.F.S.'s attempts to provide her with services.
In reality, the children have been in defendant's actual care for very little time. When D.Y.F.S. last reunited the family, it was only a matter of weeks before defendant seriously relapsed and exposed her children to significant risk. Furthermore, the judge placed reliance upon the expert findings that indicated defendant's likelihood of relapse was very real. We find no basis to set aside these findings or conclusions.
The third prong requires D.Y.F.S. to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3). The reasonableness of D.Y.F.S.' efforts for reunification "is not measured by their success." In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Defendant argues that D.Y.F.S. failed to satisfy this prong because it did not engage defendant in reasonable efforts to reunite with her children, did not provide her with adequate resources, and failed to explore other placement alternatives. None of these assertions are borne out by the record.
First, D.Y.F.S. did provide defendant and her husband with a "plethora" of services, as the trial judge found. In fact, as he noted, these resulted in a brief reunification of defendant and her three children based upon the Division's assessment that defendant had not only complied with their recommendations, but had also significantly changed her behavior. However, it was defendant's subsequent conduct that demonstrated the continued risk she posed to the children.
As to possible placement alternatives, the record amply demonstrates that D.Y.F.S. explored the possibility of other relatives taking custody of the children. In each case, those efforts did not bear fruit, but that was not the result of any lack of effort by the Division.
Lastly, the statute's fourth prong mandates a determination as to "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 Services v. E.P., 196 N.J. 88, 108 (2008). The court must inquire into the child's bond with both biological and foster parents. "[A]fter considering and balancing the two relationships," the question becomes will "the child  suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents[?]" K.H.O., supra, 161 N.J. at 355. Answering the question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citations omitted). This prong does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
Here, the overwhelming and undisputed evidence established that the children needed permanency, which defendant was not in a position to provide. With the exception of a few months in 2006 when they were returned to her custody, all three children have spent their entire lives in foster care. The judge's conclusions regarding the bonds the children had formed with their foster parents, contrasted with the tenuous bonds they had with their mother, were supported by the experts' opinions. D.Y.F.S. sufficiently met its burden under the fourth prong of the statutory best interests test.
In sum, we conclude that D.Y.F.S. met its burden by proving all four of the statutory criteria by clear and convincing evidence. We therefore affirm the order terminating defendant's parental rights to her three children, E.J., Jr., J.J., and N.J.
We refuse to consider defendant's second point on appeal, i.e., that D.Y.F.S. policy and/or the Child Placement Bill of Rights, N.J.S.A. 9:6B-4, requires all three children be placed in the same home or be permitted to visit each other. First, the argument was never raised in the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Second, the law guardian who represents the children's interests has not raised the issue, and, since defendant's parental rights are terminated, we doubt that she actually has standing to make the argument. See N.J. Chamber of Commerce v. N.J. Election Law Enforcement Comm'n, 82 N.J. 57, 67 (1980) (holding that basic requirements of standing are sufficient stake in matter and genuine adverseness). Lastly, even were we to consider the argument on its merits, we would find it unavailing.
Pursuant to the statute, D.Y.F.S. must use its best efforts "to place the child in the same setting with the child's sibling if the sibling is also being placed outside his home." N.J.S.A. 9:6B-4(d). Additionally, D.Y.F.S. is required to permit visitation "with the child's sibling on a regular basis and to otherwise maintain contact with the child's sibling if the child was separated from his sibling upon placement outside his home, including the provision or arrangement of transportation as necessary[.]" N.J.S.A. 9:6B-4(f). However, in this case, there was good reason for D.Y.F.S.'s decision to place the twins in a separate foster home from N.J. Specifically, given the special needs of the two boys, and the foster family's specific ability to meet those needs, D.Y.F.S. was not required to also assure that N.J., who did not have the same needs, be placed in the same household. Regarding sibling visitation, as the Supreme Court recognized in N.J. Div. of Youth and Family Services v. S.S., 187 N.J. 556, 564 (2006), the statute provides no basis for relief when, as is the case here, the record "contain[s] no expert testimony comparing the importance of existing or anticipated sibling bonds to the sanctity of the adoptive family."