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New Jersey Division of Youth and Family Services v. P.T.


April 1, 2009


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Passaic County, Docket No. FG-16-35-07.

Per curiam.



Submitted: March 11, 2009

Before Judges Cuff, Baxter and King.

In this consolidated appeal, we review two orders terminating the parental rights of C.T. and P.T. to their three children: C.B.T., C.T.T. and D.T. C.T., the father of the children, argues that the Division of Youth and Family Services (Division) failed to establish any of the four statutory elements by clear and convincing evidence. P.T., the mother, argues her parental rights should not have been terminated because the Division failed to consider alternatives to termination, such as kinship legal guardianship; did not make reasonable efforts to reunite the children with her; and termination of parental rights will do more harm than good for the children. We affirm.

C.T. and P.T. are the parents of three children. Their daughter, C.B.T., and son, C.T.T., were born on December 19, 2000. Their second daughter, D.T., was born on May 22, 2003. C.T. and P.T. do not live together; in fact, C.T. has been in prison for a substantial period of time during the lives of his children.

The twins, C.B.T. and C.T.T., were born premature and suffer severe developmental and emotional problems. C.B.T. is legally blind. D.T. is healthy.

The Division received its first referral on October 29, 2003, that P.T. was providing inadequate care to C.B.T. following an eye operation. The Division investigated and found the children clean and well kept. Both parents were in the home at the time of the visit and the Division caseworker believed that P.T. and C.T. seemed loving and concerned parents. No services were offered to the family.

On July 24, 2004, the Division received a second referral alleging that P.T. had left the children unattended with their ill maternal grandfather, that the children were improperly fed, and that P.T. sold drugs. The Special Protective Response Unit (SPRU) investigated. Both the maternal grandfather and P.T.'s boyfriend denied that the children were left alone with the grandfather. P.T. also denied selling drugs and showed the investigators that the children had been fed. The SPRU workers did not substantiate neglect.

On July 26, 2004, the Division received a third referral alleging that the children were improperly fed, were neglected and flea-bitten, and that P.T. beat them. The referent claimed to have smelled marijuana and crack cocaine in the home. P.T. was cooperative but frustrated, as this was the second Division investigation in two days. P.T. believed the referent was her friend, C.T.T.'s godmother, who wanted to keep C.T.T. P.T. denied using drugs and offered to submit to urine screening. The urine screen was negative for drug use. P.T. also denied hitting the children or that they were underfed. The investigation revealed sufficient food in the home and no flea bites on the children. As a result, neglect and abuse were unsubstantiated. During the investigation, however, P.T. acknowledged a criminal history: in 1995, P.T. had been incarcerated for eighteen months and on parole for six months for selling drugs. The worker recommended the case be closed.

Two months later, on September 22, 2004, the Division received another referral which alleged that P.T. was selling drugs from her home and was allowing her sister to engage in prostitution in the house. P.T. denied the allegations. Several persons in the house, who claimed to be P.T.'s cousins, stated the children were not abused or neglected. One volunteered that the referent might be C.T.T.'s godmother, who was attached to C.T.T. Unlike the earlier visits, caseworkers found the house messy and P.T. was counseled to keep the house clean. The caseworkers, however, did not substantiate abuse or neglect.

Two days later, Division caseworkers returned to the house. C.B.T. was found wearing old, dirty pajamas and without a coat or shoes. Her face was dirty from food and dried phlegm. The house was messy. Two male friends of P.T. were found in the house. At this time, the caseworkers recommended supervision and homemaker services.

On November 24, 2004, P.T. tested positive for cocaine and the allegations of neglect were substantiated. On November 30, 2004, upon receipt of the positive drug test, a Division caseworker visited P.T. in her home and arranged for Emergency Child Abuse Program (ECAP) services. P.T. admitted drug use, but claimed that she used drugs because her former paramour, with whom she ended her relationship a few weeks prior, used drugs. P.T. was referred to a substance abuse evaluation. By December 9, 2004, however, P.T. had failed to appear at three scheduled evaluation appointments. The Division rescheduled the intake appointment and notified P.T. when the appointment was made and again two days prior to the appointment.

On December 17, 2004, the Division received a fifth referral regarding P.T., this time from the Certified Alcohol and Drug Counselor (CADC) who tested P.T. at her intake appointment on December 15, 2004. The CADC reported that P.T. had tested positive for cocaine. P.T. denied using cocaine, but admitted to selling it to provide for her family. The CADC acknowledged the possibility that P.T.'s handling of cocaine could result in a positive test without P.T. having used the drug.

On December 30, 2004, a Division caseworker met with P.T. at her home. The caseworker noted the general untidiness of P.T.'s home, the declining amount of food available, but also noted the close supervision and assistance by ECAP. The allegation of neglect was substantiated because P.T. admitted to distributing illegal substances from her home.

The Division attempted to enter P.T. into substance abuse treatment, but was unsuccessful because P.T. only admitted to selling drugs. P.T. also declined parenting skills training. P.T. was, however, willing to accept Division assistance in the form of material items, such as prescription eye glasses for C.B.T., beds for the children, and a refrigerator.

On February 7, 2005, the Division informed P.T. that an earlier urine screen tested positive for cocaine. P.T. denied drug use, claiming alternately that she was too well dressed to use illegal drugs and that the urine tested must belong to someone else. P.T. later claimed that she was taking medication with codeine for a toothache. P.T. acknowledged that a substance abuse treatment program denied her admission because she denied drug use. On February 10, 2005, during a phone call with a Division caseworker, P.T. refused to consider substance abuse treatment, despite being told that treatment might be required to avoid further litigation. P.T. also complained of the Division's involvement in her life.

On February 18, 2005, a Division caseworker visited P.T.'s home and informed P.T. that she would have to undergo substance abuse treatment. P.T. again denied substance abuse, noting that her mother had died of substance abuse, so she would not use drugs, and that she was too cute to be a drug abuser. P.T. enlisted a friend to opine that merely touching drugs could result in a positive test.

On February 22, 2005, P.T. visited a Division office and reiterated that she did not abuse drugs. P.T. did admit to having packaged drugs a few days prior to the last urine screen. The Division informed P.T. that litigation would be pursued because of P.T.'s refusal to acknowledge a substance abuse problem.

On March 21, 2005, the Division again visited P.T.'s home. P.T. reported that she would be going to the hospital for surgery, and that she wished to go to court to get the Division out of her life because its involvement was making her ill. A caseworker reminded P.T. why the case was opened, and she replied that she never "parties" around the children.

On March 24, 2005, the Division was informed by the ECAP service provider that police were monitoring the building where P.T. lived for possible drug dealing. On March 30, 2005, a Division caseworker visited P.T.'s home and questioned P.T. about prior drug-related police activity in her home. In particular, the caseworker asked whether an acquaintance had been arrested in P.T.'s home for drug possession, and whether a friend who had recently died in the home had died as a result of substance abuse. P.T. denied both allegations and said the friend had died in her sleep of a heart attack and seizure. As to the arrest, P.T. became agitated and refused to answer any more questions. Passaic police later confirmed both allegations. During the visit, the children were picking trash off the floor, including a condom wrapper and an open soda bottle.

A complaint seeking protective services was filed in May 2005. For a significant period of the time the Division provided services to P.T. and the children, P.T. tested positive for cocaine. She usually denied use but readily admitted participation in distribution of the substance. Therefore, the judge ordered P.T. to attend a psychological evaluation and to cooperate with ECAP services.

C.T. did not appear at the initial hearing because he was incarcerated in the county jail. P.T. did not attend the psychological evaluation or her first session of substance abuse treatment. She was also having financial problems, but rejected budgeting advice. In July 2005, she enrolled in a substance abuse program but by mid-August was at risk of termination due to poor attendance. By September 2, 2005, she was terminated for failure to attend the program. At this time, a caseworker was required to provide emergency food assistance to the family, and P.T. had not paid the telephone, water or electric bills.

In November 2005, P.T. enrolled in an adult partial care program that provided group counseling, psychiatric services, case management, and random substance screenings. Her urine screens continued to be positive. P.T. continued to deny using the substance but freely admitted handling the substance. Once, she told a Division caseworker that she had swallowed a "rock" of cocaine prior to her last court appearance to hide it from the police.

On December 13, 2005, the Division filed an order to show cause for custody of the children when P.T.'s urine screen was positive again. The children were removed from P.T.'s care and on January 18, 2006, P.T. admitted to use and distribution of cocaine and that her actions constituted neglect of her children.

Not long before the children were removed from P.T.'s care, the Division received the report of P.T.'s psychological evaluation. The psychologist reported that P.T. viewed herself as a hapless victim, blaming others for what happened in her life. She suffered from low self-esteem and had significant problems following through with commitments. The psychologist recommended clear and structured intensive case management services to assist P.T. in planning for and caring for her children. He recommended parenting skills training, nutritional consultation, psychotherapy, and outpatient substance abuse treatment.

Following removal of her children, the Division recommended, and the court ordered, that P.T. participate in substance abuse treatment. By June 16, 2006, her therapist described P.T.'s progress as good and reported that she was trying very hard to succeed. In addition, P.T. attended supervised visits with the children. Nevertheless, on December 6, 2006, the permanency plan for the children was amended from reunification to termination of parental rights. In January 2007, P.T. had supervised visits with D.T., who recognized her and referred to her as mommy. In February 2007, P.T. had supervised visits with all three children. Then, in March 2007, the Division filed a complaint seeking termination of the parental rights of P.T. and C.T. At about the same time, P.T. was incarcerated following a guilty plea to possession of a controlled dangerous substance with intent to distribute.

Following their removal from their mother's care, the children were placed in foster care. C.B.T. and C.T.T. were initially placed together but were later separated because no caregiver could cope with the twins together. D.T. was placed with a separate caretaker.

On February 21, 2006, the twins were evaluated at the Audrey Hepburn Children's Home. The doctor recommended intensive speech therapy for C.T.T. and continued school and developmental pediatrics for C.B.T. A psychologist reported that C.T.T. had significant special needs and recommended a psychiatric evaluation and social skills training.

The psychologist also found C.B.T. to be aggressive and to exhibit problematic developmentally-delayed behavior. She exhibited self-injurious behaviors indicative of significant long-term disturbances. He found that C.B.T.'s behavior jeopardized her safety and that of those around her. He recommended occupational therapy, psychiatric services, and social skills training.

Following the commencement of the termination of parental rights proceeding, further evaluations of the children were performed. Dr. Kanen, a psychologist, described similar behavior as noted at the Audrey Hepburn Center. C.B.T. was difficult to control. She threw objects around the office, was oppositional and defiant, disobedient, had difficulty following simple instructions, and angered quickly. Her thought processes were illogical and she could sustain constructive activity for short periods. She did not know her birthday.

Dr. Kanen found that C.B.T. was multiply handicapped, legally blind, and displayed symptoms of Oppositional Defiant Disorder and Attention Deficit Hyperactivity Disorder. He recommended ongoing medical, social, psychological and education services.

Dr. Kanen also evaluated C.T.T. and found that he, too, suffered from multiple disabilities, including Oppositional Defiant Disorder. C.T.T. could sit still for only brief periods, did not know the alphabet, could not count or follow simple instructions, did not know with whom he lived, climbed over the furniture, and could not maintain eye contact. His cognitive functioning could not be evaluated because of his hyperactivity. The psychologist recommended a permanent, safe and secure home with an adult who advocated for his medical, social and educational needs.

On May 22, 2007, Dr. Kanen performed a psychological evaluation of P.T. Following cognitive testing, Dr. Kanen estimated that her IQ was sixty-seven, placing her at the high end of the mild retardation range or the low end of the borderline range and putting her functioning in the bottom one percent of the population. P.T.'s reading score was a sixty-four, placing her at the third-grade reading level, again within the bottom one percent of the population. He opined that P.T.'s cognitive and academic limitations severely impaired her capacity to care for her multiply handicapped children. P.T. showed evidence of having a longstanding personality disorder characterized by antisocial behavior. Her responses to personality testing and her history of caring for her children strongly suggested a weak bond with them. P.T. exhibited detachment from social relationships, including those with her children. She believed that others were out to get her, rather than include her. P.T. was highly suspicious of the motives of others. When asked what she was doing to resolve her parenting problems, P.T. stated that she attended parenting classes and substance abuse treatment, and had no weaknesses or problems caring for all three children.

Dr. Kanen opined, based on a reasonable degree of psychological certainty, that P.T. had severe parenting deficits and was unable to provide her children with a permanent, safe, and secure home. Dr. Kanen further opined that returning the children to P.T.'s care would subject them to an unnecessary risk of harm. Dr. Kanen found P.T.'s prognosis for change poor and that she would be unlikely to adequately parent her children in the foreseeable future.

On July 5, 2007, Dr. Kanen completed a psychological evaluation of C.T. He had been released from prison on April 23, about ten weeks before his evaluation. C.T., then thirty-six years old, reported that he was currently residing with his girlfriend, not P.T. C.T. acknowledged fathering four children, three with P.T. C.T. did not know the twins' birth date, but knew D.T.'s birth date. C.T. did not know the birth date of his other child. When asked if his children had special needs, C.T. responded that C.B.T. had eye problems but that all of his children were smart. C.T. then claimed that any special needs the children had were because they were not with their mother and father. C.T. claimed that the children had seen P.T. and others selling and using drugs in the home.

C.T. acknowledged that he was very uninvolved with his children's upbringing and had little knowledge or understanding of their special needs. C.T.'s plans for the future included working to provide for his children and having them live with him. When questioned, however, C.T. was unable to name the company he had been working for during the past six weeks.

C.T. reported a history of psychiatric hospitalizations, the first was at sixteen years of age when he tried to jump out a window. At the time, he was incarcerated for substance abuse and became homesick. The second hospitalization occurred when C.T. was twenty-five years old; he had deliberately overdosed on crack cocaine and marijuana. C.T. was hospitalized a third time when he cut his wrist with a razor blade. He was thirty-two years old at the time. C.T. reported auditory hallucinations while he was incarcerated. C.T. further admitted that he was feeling very depressed but denied any current suicidal or homicidal ideation.

C.T. admitted to crack cocaine and marijuana abuse, but claimed to be drug free for four years prior to the evaluation. C.T. also admitted to selling drugs, but claimed he had not sold any since his last arrest in 2001. C.T. admitted to five felony convictions, was released from jail on April 23, 2007, and was on parole until sometime in 2008.

C.T. obtained a scaled IQ score of 75, placing him within the borderline range of intelligence, functioning above five percent of the population. Dr. Kanen opined that C.T.'s cognitive impairment in reasoning skills and lack of alertness to his surroundings would make functioning in daily life difficult and would adversely affect his ability to adequately care for his children. Dr. Kanen noted that C.T.'s grumbling, angry style suggested a generalized anxiety disorder. C.T. also exhibited evidence of a longstanding personality disorder which caused him to withdraw from personal relationships, including those with his children. Dr. Kanen opined that C.T. would likely be unavailable emotionally or physically to parent his children over a sustained period of time and would likely be unable to provide his children with a permanent, safe, and secure home.

C.T. admitted that he had not seen his children from 2004 until his recent release from prison. He had seen his children once between his release and the bonding evaluation. C.T. had limited understanding of his children's special needs. C.T. failed to adequately resolve his history of depression, antisocial behavior, unstable lifestyle, and substance abuse. Dr. Kanen opined that C.T. could not provide his children with a permanent, safe, and secure home. Dr. Kanen recommended long- term psychotherapy, and found that C.T. would be unable to parent his children for the foreseeable future.

Dr. Kanen performed a bonding evaluation with C.T. and his children on the same date. The twins recognized C.T. as their father, and shouted "Daddy, Daddy!"

During the evaluation, C.T. was unable to keep the children under control. C.B.T. ran roughshod throughout the session, loudly demanding attention and bumping into things as a result of her blindness. C.T. was overwhelmed and focused on playing with C.T.T. C.B.T. and D.T. eventually drifted off into separate corners to play by themselves, but C.B.T. occasionally inserted herself into C.T. and C.T.T.'s play. C.T. failed to initiate contact with D.T. While there appeared to be no bond whatsoever between C.T. and D.T., he did give D.T. a hug and sat her on his lap. C.T. reported that he felt sad when the children left but the children did not react to the separation.

Dr. Kanen noted that D.T., then four years old, had no real attachment to C.T. because he had not cared for her for most of her life. C.T. had also been absent for most of the twins' lives, and they showed a severely impaired attachment to C.T.

Dr. Kanen found that C.T. was overwhelmed in dealing with all three children at once, failed to adequately structure their play, or attend to their needs. C.T. was incapable of assessing their physical, emotional, intellectual, and social strengths and weaknesses. Dr. Kanen concluded that the children would not suffer serious and enduring harm if permanently separated from C.T.

In his written opinion filed after a four day trial, Judge Sabbath concluded that the Division established each statutory prong by clear and convincing evidence. In doing so, he found that P.T. had been involved in the distribution and use of drugs since at least 2004, noting that she was first prosecuted in 2005. He found P.T.'s testimony that her positive urine screens resulted solely from handling cocaine in preparation for distribution incredible. Judge Sabbath concluded that P.T.'s missed urine screens and spotty attendance at substance abuse treatment programs were intended to avoid detection of her distribution activity.

Judge Sabbath was also concerned that the only lawful income for the household was social security disability payments for the twins and welfare. He noted that C.T. was $10,000 behind in child support, and found P.T.'s assertion that her brother would find her a job inadequate. Judge Sabbath acknowledged the Division's provision of services to the family, but noted that P.T. failed to take advantage of the assistance.

Judge Sabbath found, despite P.T.'s expressed desire to parent her children, that P.T. continued to use and distribute drugs. Further, after P.T. showed some response to substance abuse treatment, she exercised poor judgment and threw a noisy party that resulted in her arrest, incarceration, subsequent guilty plea, and placement on probation.

With respect to C.T., Judge Sabbath noted that C.T. had no experience parenting the children because of his long periods of incarceration. Further, C.T. had failed to testify or offer rebuttal evidence. Judge Sabbath further found C.T. lacked credibility, referring in particular to C.T.'s attempt to deceive the court and delay the start of trial. Judge Sabbath also found the testimony of Dr. Kanen credible and accepted his assessment of the special needs of the twins, the support services they required, and his conclusion that neither mother not father could provide the support required for each child.

Judge Sabbath concluded that P.T.'s drug use and distribution, inability to parent her children, inability to maintain stable housing, and likelihood of re-incarceration for drug use or sale indicated that returning the children to her would expose them to an unreasonable risk of harm. C.T.'s incarceration, lack of employment, recidivism, and inability to parent indicated that leaving the children in his care would expose them to an unreasonable risk of harm.

He also found P.T. and C.T. had failed and refused to avail themselves of the services and assistance offered by the Division and these failures demonstrated they were unwilling or unable to eliminate the harm their behavior posed to the children. The judge also found the Division made reasonable efforts to keep the family intact. However, P.T. was unable to successfully complete the various services and C.T. refused to accept any services once he was released from prison.

Finally, Judge Sabbath found that termination of parental rights would not do more harm than good. Approximately one year after the children were initially removed from their mother's custody, C.B.T. was placed with a maternal cousin, C.T.T. was placed with his godmother, and D.T. remained in her initial foster placement. He found termination would inure to the best interests of the children and should occur without further delay.

An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. The appellate court reviews the record to determine whether the findings are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). The Appellate Division also should accord considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the facts are supported by the evidence, the appellate court should not disturb those findings. Rova Farms, supra, 65 N.J. at 484. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

A parent's right to parent their own children is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, that right is not absolute and must yield to protect a child's welfare. N.J. Div. Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986)). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted).

N.J.S.A. 30:4C-15.1 codified the standards the Supreme Court established in New Jersey Division of Youth and Family Services v. A.W., supra. The Division must establish by clear and convincing evidence that:

(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(1)-(4).]

See also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004); A.W., supra, 103 N.J. at 604-11.

We affirm substantially for the reasons expressed by Judge Sabbath in his written opinion. The Division became involved with this family after multiple referrals alleging that the children were underfed and P.T. sold drugs from the home. Initially, caseworkers observed that the children were always clean and well-dressed. However, on one home visit, P.T. admitted a history of drug use and a drug-related conviction. P.T. submitted to a urine screen, and it tested positive for cocaine. P.T. continued to test positive for cocaine but denied drug use. P.T. variously claimed that the positive result was a mistake, was due to her handling drugs during sale, was a result of her swallowing a "rock" of cocaine to avoid police detection, was due to the fact that she did not drink a lot of water, or due to her being "fat." P.T. was terminated from two substance abuse programs, but eventually completed a third.

P.T. and C.T. have cognitive shortcomings and emotional issues that negatively impact their ability to parent. P.T. made progress in substance abuse treatment but then regressed. A party at her home led to criminal charges for possession of cocaine with intent to distribute, a guilty plea, and a probationary term. She acknowledges drug distribution from her home. Additionally, C.T. has never offered himself as a placement for the children, but has offered his sister and girlfriend.

The twins, C.B.T. and C.T.T., have profound behavioral, emotional, and developmental problems. C.T. was unaware of the nature and extent of these needs. Due to his incarceration, he had no relationship with his youngest child and a weak relationship with the twins. He was utterly incapable of controlling them during the bonding evaluation. Finally, the children have been placed with persons who understand their needs and are able to advocate on their behalf.

Therefore, the judgment dated March 24, 2008, terminating the parental rights of P.T. and C.T. to their children, C.B.T., C.T.T. and D.T., is affirmed.



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