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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 19, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.G., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF B.T., I.T., AND L.T., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-76-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 16, 2009

Before Judges Lisa, Sapp-Peterson, and Alvarez.

Defendant A.G. appeals from the trial court's termination of her parental rights to three of her six children pursuant to N.J.S.A. 30:4C-15.1(a). Guardianship of the three children was awarded to the New Jersey Division of Youth and Family Services (the Division). A.G.'s three other children are not involved in this appeal. Her oldest two reside with their maternal great-grandmother, and an infant child, E.J., resides with A.G. in a residential substance abuse treatment center. For the reasons that follow, we affirm.

FAMILY HISTORY

The following facts were developed at trial. A.G. and I.T. are the parents of B.T. (Bobby),*fn1 born May 19, 2002, I.T. (Irene), born August 18, 2003, and L.T. (Lucy), born December 29, 2004. A.G. first came to the attention of the Division when, on January 10, 2003, a complaint was received that her oldest child, then five years old, had missed many days of school and had been seen walking home alone from school along a busy highway. The case remained open for services.

On January 21, 2003, one of the family's pit bulls mauled one of the older children. At that juncture, the parents were referred for parenting skills training, and on June 17, 2003, the case was closed as the Division determined that the family was no longer in need of services.

Thereafter, on March 10, 2004, another referral was received. A.G.'s oldest child, who was then six years of age, was dropped off at home at 3:30 p.m. Because no one was present at the home, the child was taken to the local police station. A.G. was not heard from until approximately 6:50 p.m. She was charged with endangering the welfare of a child and entered a guilty plea to a disorderly persons offense. The children were temporarily removed from her custody and care, but were returned two weeks later.

On August 31, 2004, another referral was made when I.T. and A.G. were seen transporting Irene and Bobby, aged approximately one and two, with only one car seat. I.T. and A.G. were placed on a waiting list for parenting classes. Four months later, Lucy was born. The case remained open for supervision.

I.T. was incarcerated in April 2005 on charges of aggravated sexual assault. A.G. was also later charged in the incident, which involved two unrelated teenage girls.

Lucy was admitted to the hospital on June 30, 2005, suffering from asthma exacerbation and difficulty breathing. Because A.G. had left her medication at Lucy's daycare center, she could not be treated at home. Lucy remained hospitalized for several days after the admission. Hospital staff were concerned about A.G.'s failure to visit and the fact that the child's immunizations were not up to date. On July 2, 2005, when hospital personnel advised A.G. that Lucy was well enough to go home, A.G. said that she was in the midst of a move and could not take her child back. Lucy was finally discharged on July 20, 2005. A.G. failed to appear for the child's scheduled follow-up visit.

The first of several evaluations of A.G. by Dr. Charles Kaska took place on August 11, 2005. In Dr. Kaska's view, the prognosis for meaningful change was "guarded at best." It was his opinion, reiterated throughout his various reports, that despite having the capacity to make better judgments, A.G. does not do so.

In September, A.G. entered into a case plan that included keeping a cleaner house. When unannounced visits were made by Division workers, the deplorable conditions in the house included clogged toilets, spilled food in the refrigerator, substantial trash and debris on the floor, and no sheets on the beds. The sheets that were on some of the beds were filthy. In fact, because of the condition of the home, a few days after the case plan was signed, A.G.'s landlord called to inform the Division that she was considering evicting the family. Days later, during another unannounced visit, the Division worker discovered that Lucy, then nine months old, was sleeping on a top bunk with an older sibling. The bunk had no rail. During that same visit, Bobby ran around the apartment with a pair of manicure scissors, and Irene attempted to drink a cleaning product, believing that it was soda.

On November 14, 2005, in response to the deplorable condition of A.G.'s home as well as her inability to keep the children clean and appropriately clothed, the Division referred A.G. to Family Preservation Services (FPS). The agency attempted to address parenting and safety issues with A.G., purchased storage containers and cleaning supplies, and assisted her in organizing and cleaning the home. FPS ultimately terminated A.G. from the program because no overall progress was made, as she attended meetings sporadically and was unable to focus while at therapeutic sessions.

On November 23, 2005, A.G. was arrested for the sexual assault matter. A.G. eventually entered a guilty plea to child endangerment. The Division removed all five children on an emergency basis. Bobby, Irene, and Lucy were temporarily placed in a residential facility as the sole family resource could not provide for their care. Thereafter, the children were placed in a series of foster homes. The Division provided A.G. with visitation while she was incarcerated.

It bears noting that Bobby, who suffers from attention deficit hyperactivity disorder (ADHD), requires psychiatric intervention for behavioral and other problems. During the pendency of these proceedings, he has been placed in multiple foster homes and has experienced significant difficulties in school. He is currently in a therapeutic foster home. Similarly, Irene has serious behavioral problems, has been in several foster homes, and is currently in treatment necessitated by her emotional difficulties. Lucy suffers from significant developmental delays and has been in multiple foster homes, but is currently in a home where the resource family wishes to adopt both her and Irene.

When on February 6, 2006, A.G. was released from jail, the Division provided her with supervised bi-weekly visitation. She visited with the children intermittently and had difficulty controlling them. Later that month, A.G. tested positive for cocaine when screened incidental to a court hearing.

A.G. commenced a Catholic Charities parenting program on April 12, 2006, which she successfully completed that August. On November 1, 2006, A.G. underwent a third psychological evaluation. Dr. Kaska found that A.G.'s capacity for coping with stress had diminished since the prior evaluation. He stated that A.G.'s actions regarding her children have raised concerns about her parenting abilities for the last three years. The psychological evaluation conducted 15 months ago identified a number of liabilities with respect to her psychological capacity to parent. Perhaps more importantly, the evaluation provided little cause for optimism that she was going to make substantial improvements in how she conducted her life. In the ensuing months her circumstances appear to have worsened and she has now incurred a charge of child endangerment stemming from her inappropriate sexual contact with underage females. Her visitation with her children has been sporadic. She is presently homeless and living at the largesse of a friend contrary to her assertion that she is able to support herself in her hairstyling business. She has a certification of completion from a parent skills training program but she does not acknowledge that her parenting skills ever needed strengthening. Likewise, she is participating in a drug awareness support group but denies that drugs have played any significant role in her life. Moreover, [A.G.'s] version of reality is so at variance with the official version that she professes shock and dismay when told that her ability to parent is being questioned.

Dr. Kaska concluded that A.G. had taken no meaningful steps since the first evaluation, and that the prognosis for her doing so in the future was poor.

On March 5, 2007, A.G. was arrested and charged with violating probation due to her failure to participate in a court-approved drug treatment program. As a result, the Division filed an order to show cause and verified complaint seeking guardianship of the children and termination of A.G. and I.T.'s parental rights.

A.G. was released from jail on September 17, 2007, on the condition that she attend a one-year inpatient drug treatment program. Accordingly, she was admitted into the Sunrise Halfway Home program. She was then pregnant with her infant child, E.J.

On October 3, 2007, Dr. Kaska conducted a bonding evaluation of A.G. and the children. To summarize, he found no attachment between A.G. and Lucy, minimal connection between A.G. and Irene, and some affection between A.G. and Bobby. A.G. continued to reside in Sunrise House after E.J.'s birth on November 8, 2007. Sunrise House, however, could not accommodate A.G.'s other children.

In his final evaluation, Dr. Kaska opined as follows:

The 2005 evaluation indicated that she was highly individualistic; the 2006 evaluation showed her to be oppositional and resistant to authority; the present evaluation characterizes her as a narcissistic individual who sees her problems as stemming from outside herself. She is essentially satisfied with who she is although not with her present circumstances and sees little need or reason to change the habitual way in which she conducts her life. [A.G.] has the capacity to view herself objectively and can be surprisingly flexible in her thinking. However, whatever insights she gains during those moments of lucidity do not seem to translate into behavior change. At the present time she is no farther along the road to independence than she was when we first met more than two years ago. Although she gives lip service to having seen the light to the need for change, the psychometric data would argue otherwise. The prognosis is guarded at best.

Dr. Kaska testified at trial that he would not recommend reunification unless some organization was willing to provide a supportive and structured environment for A.G. He also testified, however, that there are no such programs for parents who simply lack maturity, as is the case with A.G. Improvements in judgment, perception, reasoning, and emotional coping strategies are critical to A.G.'s ability to parent and meet her children's needs. Dr. Kaska had no "optimism" that she could modify her conduct to the extent necessary to care for her children's significant needs.

Commencing in February 2008, A.G. began to focus appropriately on her drug treatment program, and program reports since then have been positive. Some problems persisted with the care of E.J., but on the whole, the program perceived A.G. as finally making progress. Around that time, the Division referred A.G. to the Catholic Charities visitation program. Her attendance improved, but she had difficulty controlling the children, who significantly misbehaved during visits.

On February 13, 2008, Bobby's counselor at Catholic Charities recommended that the Division suspend his visits with his mother because of the profound impact they were having on him. His anxiety about the visits was so significant that he would become physically ill, and all efforts to therapeutically allay this reaction were fruitless.

During the trial in April 2008, A.G. was still living at Sunrise House and anticipated a release date in September. She was not working and was still on probation. Because Sunrise House could not locate a residential program that would accept A.G. and her children, A.G. planned to reside in subsidized housing upon her discharge.

A.G. testified that she complied with the Division's requirements because she had attempted to visit with the children and follow through on all scheduled appointments. She attributed any failure to appear or late arrival to either scheduling problems, lack of notice, or transportation issues. Her plan was to seek admission for herself and her children into an eighteen-month residential inpatient program that assisted recovering substance abusers with transitioning into independent living. In the alternative, she had applied for housing assistance.

On April 15, 2008, the trial judge issued an oral opinion terminating parental rights and awarding guardianship to the Division. The court also ordered a therapeutic transition of Bobby from his therapeutic foster home to the foster home of Irene and Lucy. This appeal followed.

THE STATUTORY STANDARD

Pursuant to statute, parental rights can be terminated only when the State proves 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-15.1(a)(1), (2), (3), and (4).]

Consideration of the four prongs of the test contained within the statute must be made as a whole. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). It is the State's burden to "demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992).

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of this review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003), aff'd and remanded, 179 N.J. 264 (2004) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).

"Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Credibility determinations are entitled to particular deference. Ibid. An exception to this rule exists "'where the focus of the dispute is not credibility but, rather, alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom.'" J.T., supra, 269 N.J. Super. at 188-89 (quoting Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).

(1) The First Prong

Although the trial court did not specifically cite to the first prong, it did find that the State established by clear and convincing evidence that the children's safety, health and development had been and will continue to be endangered by the parental relationship. We agree.

A.G. failed to recognize that the children suffered from significant behavioral problems, continued to use drugs even when she knew that her parental rights were at stake, and was unable to provide a safe and stable home. A.G.'s documented inability to provide a safe environment for her children was substantiated not only by her neglect of their medical needs, but also by the deplorable conditions in which the children lived when in A.G.'s care. Despite the significant progress that A.G. has made since February 2008 and her stated belief that she is now able to care for the children, based on past events, it is clear that the children's safety, health and development have been and will continue to be endangered by the parental relationship.

(2) The Second Prong

"The State can satisfy the second prong if it can show 'that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents.'" N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007) (quoting K.H.O., supra, 161 N.J. at 363). "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 & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). These children have been kept in limbo for years, waiting for the progress that A.G. began to make only months before trial. They cannot be kept waiting any longer.

As the trial court said:

Sunrise House is a protected environment. [A.G.'s] not out on the street. She's not dealing with daily pressures . . . . She's not working. She has no stable housing other than living at Sunrise House. And for the three months since January she's still there. I know in January that she's still having problem[s] with caring for the child in her custody. . . . There is still concern on the part of . . . Sunrise House about the . . . safety of the child and the adequacy of her parenting.

The court acknowledged some evidence that after her discharge from Sunrise House, A.G. may gain admission to the Agape program, an eighteen-month residential program. The court found, however, as follows:

I can't trust in my own mind approving a custody transfer of these fragile children to [A.G.] for an 18-month program where real life doesn't exist. She's not on the street. She still wouldn't be working. She wouldn't have adequate housing other than what is provided for her . . . by the program.

And these children are damaged. Dr. Kaska told me that. They were damaged the day we took the children from the mother. . . . They've each been in five separate placements. The[] . . . treatment experts are telling me that [the children] sound like they're coming together. They're getting somewhere better where they are. Not great, not terrific but they're working on it. And the placements that they are in are to their benefit in helping them deal with these problems.

I can't . . . agree with the thought of taking these children in their current condition, placing them in a protected situation for a period of up to 18 months and trust that at the end of that by some miraculous occurrence [A.G.'s] going to hit the street and everything's going to be fine. . . . I can't trust that because again, the past doesn't tell me it can happen.

The court was "satisfied" that A.G. was not "ready" to parent these children, who need stability, security, and permanency now, "not a month from now, not six months from now, not a year from now, not 18 months from now."

The State's proofs support the finding that A.G. has been unable or unwilling to eliminate the harm facing her children. Her progress at Sunrise House in 2008 is an insufficient basis to conclude that she is able to eliminate the harm that she currently poses to the children. No appropriate placement was found for her and the children upon her release from Sunrise House in September 2008. It is clear from Dr. Kaska's report that absent such an environment, A.G. will not be able to parent her special-needs children. A.G.'s inability to focus on her drug rehabilitation treatment until just months prior to the commencement of an adjourned trial, almost two-and-a-half years after the children were removed from her care, supports the court's conclusion that A.G. cannot in time become the parent that these fragile children need.

(3) The Third Prong

It is clear that the Division has engaged in reasonable efforts designed to reunite this family. A.G. was referred to several parenting programs, as well as evaluations and treatment. The Division purchased furniture for the family, assisted A.G. in obtaining rental assistance, and provided her with supervised visits, even when she was incarcerated. The Division made reasonable efforts to provide services to enable A.G. to correct the circumstances that led to the children's placement outside her home.

(4) The Fourth Prong

A.G. argues that the State failed to establish the fourth prong, that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "The question ultimately is not whether a biological mother or father is a worthy parent, but 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 Servs. v. E.P., 196 N.J. 88, 108 (2008). "A child's need for permanency is an important consideration under the fourth prong." M.M., supra, 189 N.J. at 281.

When a parent exposes his or her child to continuing harm through abuse or neglect and is unable to eliminate the danger to the child, and when the child is bonded with foster parents "who have provided a nurturing and safe home," termination of parental rights likely will not do more harm than good. E.P., supra, 196 N.J. at 108. Our courts have cautioned that even under those circumstances, the Division must nonetheless show that "separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm." J.C., supra, 129 N.J. at 19. And, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109.

On appeal, A.G. argues that the trial court improperly applied a "better interests" test and failed to acknowledge the bonds that the children have with her, and the inherent harm that would result from severing those bonds. The court found that the children need stability, security, and permanency now, and the record supports that conclusion. Dr. Kaska's finding of a minimal connection between A.G. and Irene and Lucy establishes that although the children are not yet bonded with their foster family, termination of parental rights will not do more harm than good.

Bobby's connection to his mother presents a more difficult question because he does have an attachment to her. The attachment, however, is weak. The extraordinary anxiety that Bobby experienced on visits is a factor that tends heavily towards the conclusion that as to him, termination of parental rights will not do more harm than good. Lucy and Irene's foster family has expressed an interest in adopting Bobby, although as of the trial, he had not been moved out of his therapeutic home.

In weighing the real possibility of adoption and reunification of these special-needs siblings against the potential harm that could result from the loss of their connection with A.G., it is clear that the children's need for a stable, safe, and nurturing environment outweighs A.G.'s desire to continue to exercise her parental rights. Accordingly, we conclude that termination will not do more harm than good.

Affirmed.


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