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


May 27, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-161-07.

Per curiam.



Submitted March 2, 2009

Before Judges Sapp-Peterson and Alvarez.

Defendants D.B. and Y.T. appeal from the trial court's order dated April 17, 2008, terminating their parental rights pursuant to N.J.S.A. 30:4C-15.1(a). Guardianship of their daughter, D.N.B., was awarded to the Division of Youth and Family Services (the Division). We affirm.

Defendants assert that the State failed to satisfy the statutory four-prong test for termination of parental rights, found in N.J.S.A. 30:4C-15.1(a)(1), (2), (3), and (4), by clear and convincing evidence. In addition, D.B. contends that the trial court should have considered kinship legal guardianship, N.J.S.A. 30:4C-15.3, with the child's resource family, D.N.B.'s paternal uncle and aunt, as an alternative to termination of parental rights. Our affirmance is essentially based on the trial judge's sixty-two-page written opinion, which was comprehensive, detailed, and well-reasoned.


Y.T. has two other children, both of whom have been in the Division's care. In fact, Y.T.'s rights to her second child, D.T., were terminated on April 4, 2005, months prior to the birth of the child at issue in this case, D.N.B., on January 26, 2006. The termination of Y.T.'s rights to D.T. was affirmed on appeal. N.J. Div. of Youth & Family Servs., Nos. A-4542-04 and A-5437-04 (App. Div. February 15, 2006) (slip op. at 6). As we said there, Y.T. suffers from bipolar disorder, depression, and substance abuse, and has a history of abusive relationships with men. Id. at 3. D.B. is not the father of Y.T.'s first two children.

The birth of D.N.B. was brought to the attention of the Division when Y.T. reported to her oldest child's guidance counselor that she had given birth the prior week and was suffering from post-partum depression. D.N.B., who was born prematurely, remained hospitalized after birth for several weeks. When the Division approached Y.T. based on this information, she denied any ongoing substance abuse or mental health problems, although she acknowledged that she took medication. The Division requested that Y.T. sign a case plan, which called for her to attend counseling, take prescribed medication, and obtain a crib for D.N.B. before she was discharged from the hospital. The Division also referred D.B. and Y.T. for substance abuse evaluations. While D.N.B. was in the neonatal intensive care unit, Y.T. did not visit, and D.B. visited only occasionally.

In April 2006, Y.T. was hospitalized for one week as a result of her mental health issues. That month, both parents failed to attend the substance abuse evaluations called for in the Division's case plan.

On the return date of the initial order to show cause, May 9, 2006, both D.B. and Y.T. were screened for drug use. D.B. tested negative, and Y.T. tested positive for cocaine. When asked if the screening would be negative, D.B. stated, "I hope so. I've been to a lot of parties lately."

D.N.B. was discharged from the hospital and placed in a foster home on June 16, 2006. Two months later, she was moved to her current placement with her paternal aunt and uncle.

In June 2006, D.B. and Y.T. were again referred for substance abuse evaluations. On that occasion, they both tested positive for cocaine. Although Y.T. continued in drug treatment, in August 2006, she tested positive for alcohol and provided a potentially adulterated urine sample.

Y.T. underwent a forensic psychological evaluation in September 2006. Although initially scheduled for an August appointment, Y.T. rescheduled for September and left the session early due to transportation issues. The evaluation report included Y.T.'s chronic history of mental health and substance abuse difficulties, which was punctuated by psychiatric hospitalizations. It was recommended that she continue her medication regimen and individual and group therapy. That month, when screened again for drug use, Y.T. adulterated her sample.

Meanwhile, D.B. was experiencing his own difficulties in drug treatment. He refused to submit to a drug screen on September 12, 2006. An October 20, 2006 progress report indicated that out of ten urine screens, five were positive for alcohol, and that D.B.'s attendance at treatment sessions was sporadic.

In September 2006, D.B. and Y.T. began therapeutic supervised visitation through the Family Enrichment Program (FEP). The Division received reports in October 2006 that Y.T. minimally attended her outpatient substance abuse counseling and submitted at least two adulterated drug screens. Y.T.'s treatment program administratively terminated her due to repeated failures to appear and submit to drug screens and her submission of adulterated samples.

Y.T. was hospitalized on November 24, 2006, when D.B. discovered her collapsed on a floor as a result of taking ten pills each of Depakote, Abilify, and Effexor, and ingesting cocaine. Y.T. left the hospital against medical advice three days later.

Meanwhile, on November 29, 2006, D.B. was terminated from his intensive outpatient treatment program due to poor attendance and suspicious drug screens. The treatment center recommended a more structured program. Thereafter, months elapsed during which neither parent participated in treatment. When substance abuse evaluations were again ordered in March 2007, both parents cancelled. After requesting that she be readmitted into the drug treatment program in which she had previously participated, Y.T. started to attend sessions in February. She was, however, terminated from treatment a second time for noncompliance.

On April 5, 2007, D.B. failed to provide a sample for a court-ordered drug screen. That month, both parents again cancelled and rescheduled their substance abuse evaluations. Not surprisingly, in May 2007, when D.B. finally submitted to an evaluation, he was diagnosed as drug dependent.

When Y.T. was evaluated on April 19, 2007, she misrepresented the extent of her involvement in ongoing drug treatment. On June 20, 2007, D.B. was terminated yet again from a drug treatment program for noncompliance. He thereafter enrolled in another program in August. He was discharged from this program by the end of the month for noncompliance. D.B. enrolled in a third program on August 29, 2007, and attended marginally for two months.

On September 20, 2007, Y.T. and D.B. underwent psychological and bonding evaluations with D.N.B. Dr. Frank J. Dyer also performed a bonding evaluation with D.N.B.'s resource family. He found that Y.T.'s chronic bipolar disorder and personality disorder with dependent and antisocial features were complicated by cocaine abuse and Y.T.'s minimalization. Y.T.'s psychological profile indicated that she was still vulnerable to psychiatric crises as she experiences life as very stressful even when neither employed nor responsible for the care of her children. He considered Y.T.'s prognosis for change in response to therapy or other intervention to be poor because of the severity and chronicity of her problems.

Dr. Dyer found D.B. to suffer from a personality disorder with histrionic and antisocial features, as well as marijuana and alcohol abuse. Dr. Dyer also expressed concern that D.B. does not have a realistic appreciation of Y.T.'s psychiatric problems. Because of his lack of maturity and sense of responsibility, Dr. Dyer did not consider D.B. to be a potential placement for D.N.B.

As to D.N.B., Dr. Dyer noted her bronchial pulmonary problems, allergies, and severe asthma. He opined that if she were to be removed from her current placement, she would suffer a traumatic loss that would inflict significant psychological harm. Although the child displayed affection towards her biological parents and enjoyed being with them, they are not her primary attachment figures. Dr. Dyer recommended that D.N.B. remain with her foster parents and, if possible, maintain contact with D.B. and Y.T. Additionally, he opined that if contact with her biological parents were to cease, D.N.B. would not suffer a traumatic loss.

On July 13, 2007, Y.T. underwent a psychiatric evaluation with Dr. Catherine D. Heffner and was diagnosed with bipolar disorder, anxiety disorder, and cocaine abuse. On November 16, 2007, Y.T. commenced treatment at yet another drug program. Thereafter, on December 12, 2007, she was terminated for noncompliance.

On January 23, 2008, D.B. was notified by the agency responsible for administering individual therapy that he would be terminated from that program for noncompliance. On January 30, 2008, D.B.'s drug abuse treatment program administratively discharged him for noncompliance, including avoidance of drug screens and missing group sessions.

As to therapeutic supervised visitation, Y.T. attended forty-six out of sixty-three scheduled visits, and D.B. attended thirty-six out of fifty-six. When D.B. and Y.T. arrived for visits, they were often late and had to be provided with a diaper bag by D.N.B.'s resource family. On February 15, 2008, Y.T. and D.B. were placed on separate attendance contracts. It is undisputed that D.B., Y.T. and D.N.B. were comfortable during their visits.

Throughout the Division's involvement, neither parent maintained consistent contact with their caseworker. Y.T. was employed only briefly, and D.B. obtained several jobs. Y.T. stated that if awarded custody of D.N.B., she would support the child with her disability benefits.

Y.T.'s expert, Dr. Jacob Jacoby, a psychiatrist, testified that Y.T. could be "a good mother" to D.N.B. despite her psychiatric conditions. It was his opinion that she should be awarded custody so long as she had the support of continued psychiatric and mental health care, was compliant with her prescribed medication, and was administered periodic drug tests.

Dr. Jacoby did not meet D.N.B. Although Dr. Jacoby admitted that Y.T.'s lack of consistent adherence to her medication regimen was problematic, in his view, it was counter-balanced by her negative drug tests in the last year.

Dr. Gerard A. Figurelli testified on behalf of D.B. that D.B. could parent D.N.B. if he could control his substance abuse problem. He noted that D.B. was employed, lived with his parents, and participated in counseling. He did not consider D.B.'s admittedly superficial understanding of Y.T.'s psychiatric issues to significantly affect D.B.'s ability to parent. He acknowledged that D.B. could not act as an adequate parent until his drug abuse issues were addressed.

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).]

Our task on appeal 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)). Consideration of the separate prongs of the statutory test must be made as a whole. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

Defendants claim that the State failed to meet the statutory test by clear and convincing evidence, and that the termination of their parental rights would do D.N.B. more harm than good. In addition, D.B. contends that the trial court should have considered awarding kinship legal guardianship to D.N.B.'s resource family, and that the law guardian should not have advocated for termination of parental rights.

(1) The First Prong

We are satisfied that the child's safety, health and development has been and will continue to be endangered by the parental relationship. As the trial judge concluded, the parents' drug use is ongoing. During the pendency of this action, D.B. was unable to complete any drug treatment program, was terminated from several due to non-compliance, tested positive for cocaine and alcohol, and, as acknowledged by his own expert, could not adequately parent unless his drug problem was in remission.

Y.T.'s history of psychiatric problems and substance abuse present an insurmountable hurdle because she has no track record of being compliant with medication or history of remaining drug- free. There is no reason to believe that in the future, her conditions will improve.

(2) The Second Prong

"A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004). To hold D.N.B.'s future in limbo pending her parents making dramatic life changes would be unfair to the child and force her to be a prisoner of their chronic problems.

To date, D.B. has not shown any willingness to remain substance-free or any signs of the ability to do so. Y.T. has been unable to address her psychiatric problems by remaining compliant with therapeutic and drug interventions. She cannot remain substance-free consistently. D.N.B. should not have to wait for changes in her parents that may never come. Like the trial judge, we believe that her safety, health, and development have been and will continue to be endangered by the parental relationship.

It is undisputed that D.N.B.'s primary attachment is to her resource family despite an attachment to her biological parents. She has resided with her resource family practically since birth. Dr. Dyer's testimony established that separating D.N.B. from her resource family would do great emotional damage.

Neither D.B. nor Y.T. has been able to maintain independent stable housing, stable employment, or otherwise demonstrate an ability "to provide a safe and stable home for the child." N.J.S.A. 30:4C-15.1(a)(2). Loss of the relationship with her biological parents will not inflict the trauma that D.N.B. would experience if separated from her resource family. In addition, the child has serious health needs that would be best addressed by her resource parents. Neither D.B. nor Y.T. is able to visit with the child consistently, arrive for a visit on a timely basis, or otherwise establish a reliable pattern of interest in D.N.B. Clearly, the State has met its statutory burden under the second prong of this test.

(3) The Third Prong

The Division established by clear and convincing evidence that it made "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." N.J.S.A. 30:4C-15.1(a)(3). Multiple substance abuse evaluations and treatment options were made available to both parents. Over a period of two years, neither Y.T. nor D.B. was able to follow through for more than a matter of weeks in any one program.

(4) The Fourth Prong

As to the fourth prong, that termination will not do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), there can be no doubt that a "final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). The loss of biological parents is a grave loss, and certainly would be to this child who has an affectionate relationship with her parents. Because of the magnitude of this consequence, doubts are to be resolved against the destruction of the relationship. Id. at 16. Because permanence is also crucial to a child's safe and stable upbringing, however, it too must be considered. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

Neither parent, regardless of emotional ties to the child, has demonstrated even a slight commitment to change. Neither has demonstrated the ability to remain substance-free in the long run or to wholeheartedly embrace the process necessary to become substance-free. Y.T.'s substance abuse issues are certainly compounded by her mental health problems, and she has not been able to stabilize despite the availability of resources extended to her by the Division even prior to D.N.B.'s arrival home as a newborn. Neither parent seems to fully comprehend the extent of their problems.

Termination of parental rights will not do more harm than good in this instance. The State has met its burden by clear and convincing evidence. We concur with the trial court that D.B. and Y.T. lack the capability to safely care for their child. Both have been offered services for years and have been generally noncompliant, denying the very need for treatment. They display indifference to the need to change their behaviors, even when necessary to avoid the loss of their child. D.B. continues to abuse alcohol and cocaine. Y.T. continues to be noncompliant with the psychiatric treatment necessary to maintain stability. In light of these facts, we find that the trial court did not err in its conclusions.

Kinship Legal Guardianship

The Division's policy is to "place children with relatives whenever possible," but this is not an absolute. N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003). A kinship legal guardian may only be appointed when "adoption of the child is neither feasible nor likely." P.P., supra, 180 N.J. at 509.

The issue is not whether a kinship legal guardianship would serve to provide a safe and stable home for D.N.B. The issue is whether the Division has presented clear and convincing evidence pursuant to statute to warrant termination of parental rights independent of consideration of kinship legal guardianship. If either D.B. or Y.T. had demonstrated the potential to care for their child at some future time, this option might be appropriate. But, to the contrary, the Division established the four prongs of the statutory standard by clear and convincing evidence. Kinship legal guardianship is not an appropriate option where the standard is met for termination of parental rights. The kinship legal guardianship statute, in and of itself, does not somehow bar termination of parental rights where otherwise appropriate.



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