July 1, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.T. AND J.D., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-25-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 9, 2009
Before Judges Lisa and Collester.
Defendant, H.C., appeals from a judgment of guardianship terminating her parental rights to her sons, D.T., who was born on September 9, 2002, and J.D., who was born on October 13, 2006.*fn1 Defendant argues that the Division of Youth and Family Services (DYFS or Division) failed to present clear and convincing evidence to satisfy its burden of establishing all four prongs of the best interests of the child test. The Division disagrees and the law guardian supports the Division's position that the termination should be upheld. We reject defendant's argument and affirm.
Defendant was born on December 7, 1985. She suffers from congenital heart problems and has used a pacemaker since early childhood. She has undergone multiple surgeries to address this issue. She dropped out of school in the tenth grade and has made two unsuccessful attempts to earn her GED.
When D.T. was born on September 9, 2002, defendant was seventeen years old. She never lived with D.T.'s father, M.T., and he has never had any involvement in D.T.'s life.
In 2003, defendant married W.G. This was apparently an arranged marriage of convenience for the purpose of enabling W.G., an alien, to legitimize his presence in this country. In exchange, defendant was to receive monetary considerations and a home. The marriage was short-lived and marked by abuse. A domestic violence incident occurred on November 22, 2003. The police responded. Defendant admitted assaulting W.G. The police contacted DYFS because this was their second response to a domestic violence call involving defendant. D.T. was in defendant's home during both police responses, but defendant denied that D.T. witnessed the incidents. DYFS investigated but did not substantiate neglect.
Defendant later reported that W.G. abused her and she sought a domestic violence restraining order, which was denied on September 8, 2004. At some point, W.G. was deported, apparently for assaulting someone with a bat. The marriage of W.G. and defendant was annulled. Defendant became romantically involved with P.D., and later reported that he was abusive toward her.
On April 4, 2005, defendant's mother reported to the Division that defendant used crack cocaine and marijuana in D.T.'s presence. The Division investigated but did not substantiate neglect.
Defendant was arrested on February 2, 2006 for her involvement in prescription drug fraud. She knowingly used a stolen, fraudulent prescription to obtain Valium on two occasions in January 2006. She used another stolen, fraudulent prescription to obtain Percocet on January 29, 2006. The police reported defendant's arrest and drug charges to the Division. Although the Division investigation found no neglect, the Division remained involved with defendant. On February 24, 2006, M.T.'s sister, S.T., contacted the Division and reported that defendant had recently driven D.T. while under the influence of alcohol.
On May 30, 2006, the Division developed a case plan, which included a provision that defendant would refrain from drug and alcohol use and complete a substance abuse evaluation. At the evaluation, the Division learned for the first time that defendant was six months pregnant. She had not obtained any prenatal care. Because of her heart condition, this pregnancy was a risk to defendant's health. Defendant apparently had considered an abortion, but was ineligible because of the advanced stage of her pregnancy and her underlying heart problem.
In June and July 2006, the Division arranged for prenatal care, drug counseling appointments and parenting classes for defendant. D.T.'s teeth were in a severe state of decay, and the Division offered to coordinate dental care, but defendant failed to cooperate.
Defendant refused to provide a random urine sample on July 19, 2006. Defendant was resistant to services offered by the Division.
On August 1, 2006, the Division requested custody of D.T., which was granted. Defendant threatened to harm herself and a Division worker. The court ordered a mental health commitment, which occurred from August 5 to August 7, 2006. Defendant was diagnosed with anxiety disorder.
D.T. was placed in the care of his paternal aunt, S.T., and her husband. He has remained with them ever since. At the time of this placement, D.T. was nearly four years old. He was not toilet trained. He did not know how to eat with utensils or chew his food. He could not climb or descend stairs. His behavior was marked by significant anger. He cursed and acted out violently. He showed signs of delayed development, Attention Deficit Hyperactivity Disorder (ADHD), and early deprivation and neglect. He had cavities in sixteen of his twenty teeth and required extensive dental work. He was not current with his immunizations, although defendant disputed this at trial. He was born with a slight hole in his heart but had not seen a cardiologist in nearly three years.
S.T. took D.T. to various medical and developmental evaluations and obtained the required dental and medical care for him. Defendant was ordered by the court to attend D.T.'s medical appointments, but she failed to do so. D.T. was diagnosed with reactive attachment disorder and began family therapy with S.T. D.T. was prescribed medication for ADHD and began physical and occupational therapy. In December 2006, S.T. enrolled D.T. in a special education preschool program that involved occupational, physical and speech therapy.
After D.T.'s removal, defendant completed an outpatient drug treatment program that had been arranged by the Division in September 2006. On October 13, 2006, defendant gave birth to J.D. The Division obtained custody of J.D. immediately after his birth. J.D. was placed with his brother in the care of S.T. and her husband upon his release from the hospital on October 18, 2006. J.D. has remained with these caregivers continuously since that time.
Defendant began weekly supervised visits with the children at S.T.'s home in October 2006. She attended the visits inconsistently, arriving late and failing to attend without prior cancellation. The in-home visits had an upsetting effect on D.T., who reacted by defecating in his bed and elsewhere after the visits. DYFS arranged for the visits to take place outside S.T.'s home. The visits continued to upset D.T. After a November 2006 visit, for example, he wet his bed for the first time in months.
In December 2006, the Division advised defendant that her visits were in jeopardy of termination because of her inconsistent attendance. In January 2007, D.T. told S.T. that he did not want to continue with the visits because defendant ignored him. Contact sheets confirm that defendant largely ignored J.D. during two visits in February and March 2007, with D.T. noticeably upset on both occasions.
Defendant completed parent and anger management classes in December 2006. She began psychotherapy with Dr. Robert T. Hazlett, a psychologist. Another psychologist, Dr. Robert J. Puglia, conducted a court-ordered evaluation of defendant on April 5, 2006 and October 4, 2006. He issued a report on December 2, 2006. Defendant denied a history of substance abuse. Puglia recommended deferring reunification until defendant underwent a psychiatric evaluation and complied with additional services and evaluations. Puglia recommended that if defendant improved her parenting skills and stabilized emotionally reunification appeared to be in the children's best interest.
Dr. Alexander Iofin, a psychiatrist, evaluated defendant on January 3 and February 14, 2007. His report described a diagnosis of ADHD, adult antisocial behavior, opiate abuse in full remission, adjustment disorder with disturbance of emotion and conduct, depressive disorder NOS, anxiety disorder NOS, and personality disorder NOS with histrionic and compulsive personality traits. Iofin opined that defendant's psychiatric problems were treatable but successful treatment required her abstinence from drug and alcohol use. If defendant complied with services and showed improved functioning, Iofin believed she would be psychiatrically capable of handling her children without supervision.
Defendant tested positive for cocaine on February 1, 2007. She reported consuming alcohol to the point of losing consciousness in February 2007, causing the Division concern because of her pacemaker and the recent positive cocaine screen. Defendant tested positive for methadone on March 6, 2007, although she disputed at trial that she took methadone.
Defendant began a drug treatment program in March 2007. However, she failed to attend psychotherapy with Hazlett on April 2, 2007. When Hazlett learned of defendant's failed drug test, he discontinued her psychotherapy so she could focus on treating her substance abuse.
In addition to drug treatment, defendant began individual counseling and therapeutic visitation with her children in June 2007. However, she promptly missed a counseling appointment and failed to provide a urine sample at the drug treatment program. The program made other unsuccessful efforts to obtain a sample on three occasions in one week. Because of her persistent noncompliance with program requirements, she was discharged from the drug treatment program.
Defendant refused a urine screen on June 29, 2007. She told DYFS she lacked transportation. Despite being told how to arrange for public transportation, she did not attend. Also, despite being advised of the children's medical and educational appointments, defendant continued to fail to attend them.
On July 12, 2007, defendant tested positive for cocaine and opiates, and on July 26, 2007, she tested positive for cocaine. On July 27, 2007, defendant refused to provide a random urine sample to DYFS. In October 2007, defendant tested positive for methadone for the second time. She also disputed this result at trial.
Puglia reevaluated defendant on September 24, 2007. Defendant denied any substance abuse problems. Puglia opined that defendant had progressed regarding her emotional stability and maladaptive behavioral patterns and she appeared to be less depressed, but she continued to present significant stress-related problems. He recommended a bonding evaluation.
On October 16, 2007, Dr. Margaret S. Beekman, a psychologist, conducted bonding evaluations between the children and defendant and between the children and their caregivers. Beekman reported that the children were "thriving" in the caregiver's home and were "strongly and securely bonded" to their caregivers. J.D. was likely to consider his caregivers, and not anyone else, "as his 'psychological' parents." D.T. was "irritable, demanding, [and] complaining" when interacting with defendant. D.T. seemed insecurely and ambivalently bonded to defendant. J.D. appeared happy with defendant but most likely saw her "as a friendly visitor," and viewed S.T. as his parent. D.T. had previously expressed his desire to remain with his caregivers and be adopted, and he expressed the same sentiment to Beekman. Beekman recommended permanent placement with the caregivers, as the children's removal was likely to cause J.D. severe, traumatic and lasting harm, and likely to provoke anxiety in D.T.
D.T. continued to express his desire to stop his visits with defendant, and the visits continued to negatively affect him. D.T.'s teacher reported that D.T. had been in a poor mood on the days following his bonding evaluations.
Since the children have been in placement, defendant attended only two of their medical appointments. In January 2008, she attended one of D.T.'s doctor appointments for the first time. D.T. was upset by defendant's unexpected appearance, and uncharacteristically wet his bed that night. D.T.'s behavior that week in school suffered. He acted unkindly toward his classmates and locked himself in the bathroom with wet paper towels on his head.
In January 2008, the Division referred defendant for family therapy with Ocean Mental Health. Defendant canceled her first two scheduled intake appointments. The intake therapist noted that defendant would also need individual therapy. Defendant missed a family therapy session and an individual therapy session in February 2008.
At a subsequent family therapy session, D.T. refused to leave S.T.'s car despite S.T.'s and the therapist's efforts. This conduct repeated itself at future therapeutic visits. D.T.'s therapist recommended termination of the visits, as they provoked too much anxiety in D.T.
Defendant again entered substance abuse treatment but was administratively discharged in March 2008 for noncompliance.
Her counselor believed defendant had done all she could at the time, but defendant required a clinician's care to address her mental health needs, which were beyond the scope of her substance abuse treatment. Defendant received no substance abuse treatment after March 2008.
In April 2008, the Division lost contact with defendant, as she apparently moved and her phone was out of service. Defendant threatened to harm herself if she was not reunited with her children. Defendant's family advised the Division that defendant might be using drugs again. Defendant refused a urine screen in April 2008. Between that time and the termination, the Division made unsuccessful efforts to locate defendant for a drug screen. Her most recent urine screen was in December 2007, yielding a negative result.
In May 2008, J.D. was able to recognize when S.T. was taking him to a visit with defendant, and he would become upset, clinging to S.T. and crying. Defendant had difficulty calming J.D. during the visits. Defendant never progressed to unsupervised visitation.
Defendant missed counseling appointments in June and July 2008. She told her therapist she did not consistently take her psychotropic medications and would stop taking care of her health if she lost her children.
On July 14, 2008, defendant knew she had an outstanding warrant for nonpayment of child support. She was apparently about $5000 in arrears. When contacted by the police, she gave a false name and was charged with hindering apprehension as well as being arrested for the outstanding warrant. She spent two days in jail.
Defendant was employed during this time. Indeed, she had two jobs. Nevertheless, she was not paying child support. At the time of the termination, defendant worked as a telemarketer and, off the books, as a waitress. She was attempting to obtain social security benefits for partial disability and claimed she would be able to support her children. She had recently moved to a house in Hazlet, of which she rented a portion.
S.T. testified at trial. She stated that she and her husband wished to adopt both children. She said she understood the difference between adoption and kinship legal guardianship. She did not wish to enter into a kinship legal guardianship arrangement, but she wished to adopt, in order to provide a permanent and stable home for the children. S.T. and her husband had two biological sons, and S.T. had a daughter from a previous marriage, all of whom lived in the household and all of whom got along with defendant's children "like siblings." S.T.'s other children wanted S.T. to adopt defendant's children.
D.T. and J.D. are thriving in the home and are happy there. Their emotional, physical, medical and educational needs are being met. The Division had no concerns regarding the children's placement with their caregivers, who could provide for the children's financial needs as well. D.T. was participating in sports activities and had shown progress in school. Both boys were healthy and happy in the home environment of their caregivers.
Puglia testified at trial consistent with his prior report. He expressed concern about defendant's inconsistent visitation. He questioned defendant's ability to care for her children until she showed consistent emotional stability, contact with her children, stable housing and disassociation from people who may expose the children to domestic violence situations. He believed she needed to engage in ongoing mentally ill chemically addicted (MICA) counseling and individual counseling. Puglia conceded that some reports regarding defendant were positive. However, he believed that in the absence of consistently positive reports, reunification would not be appropriate.
Beekman testified consistent with her bonding evaluation report. She opined that adoption by the foster parents was the best plan. Permanent placement of the children with their foster parents had the potential for more benefit than harm, as removal would likely cause J.D. trauma and D.T. anxiety. She did not believe that either child would suffer severe trauma from terminating their relationship with defendant.
Defendant's therapist, Christina Pistolakis, testified. She noted defendant's improved housing and employment situations, her improved sense of responsibility, and improved parenting skills. Visits with J.D. were improving and going well. During the visits, defendant protected J.D. from potential physical risks. Pistolakis did not have concerns for J.D.'s safety if he was put in defendant's care. Defendant was still missing appointments with Pistolakis at the time of the termination, allegedly due to transportation and financial problems. She attended fourteen individual sessions, canceled ten, and failed to attend two without prior cancellation. She attended nineteen therapeutic visitations, canceled two and failed to attend two without prior cancellation. Pistolakis did not testify as an expert. She was not qualified to evaluate the children's bond with their caregivers, the impact on the children of removal from their caregivers, what D.T.'s reunification with defendant would be like, or the impact on the children of severing defendant's relationship with them.
Defendant testified at trial. She expressed her wish to keep her children. She denied recent drug or alcohol use, and she denied ever taking methadone. She felt she was progressing and taking seriously her role as a parent. She had housing and employment and believed she was capable of parenting her children.
Defendant presented no expert witnesses. As a result, the testimony of the experts presented by DYFS was unrefuted.
Trial was conducted on May 8, June 5, August 28, September 3, and September 16, 2008. In addition to the witnesses we have mentioned, two Division caseworkers testified. The judge also received in evidence voluminous documentary materials, including reports of mental health evaluations, Division records, the children's health and education records, and the like. On September 16, 2008, Judge Ronald E. Hoffman, issued a comprehensive fifty-six page oral decision. He found that the Division clearly and convincingly proved all four prongs of the best interests test and entered an order terminating defendant's parental rights.
As to the first prong, the judge found that defendant endangered D.T. by failing to provide for his "most basic needs," including nutrition, dental care, and bathroom training. She failed to teach him how to use dining utensils and she did not address his educational, developmental, and behavioral needs. Defendant was involved in domestic violence episodes in D.T.'s presence. She was arrested for drug offenses. She did not provide D.T. with stable housing. Defendant's pre-birth relationship with J.D. endangered J.D. because she had not obtained prenatal care for the first seven months of her pregnancy.
Relying on defendant's initial total failure to comply with DYFS services, the judge found that defendant would continue to endanger her children. Although she had since become somewhat more compliant, she still failed to complete some important services and participated only sporadically in others, including supervised visits. Defendant's housing and employment were "questionable," as she was unemployed at times during the proceedings. Her housing had been unstable, and she was recently arrested in July 2008 for nonpayment of child support and falsely identifying herself to the police.
Defendant did not attend medical and educational appointments for the children, thus evidencing a lack of commitment to establish a permanent relationship with the children. Her failure to pay child support, although she was employed, demonstrated a lack of willingness to provide necessary financial assistance. The judge also noted defendant's positive drug tests and evasive conduct regarding random urine screens and that she was terminated from substance abuse and mental health programs for noncompliance. Further, the judge noted that no evaluator recommended defendant as an independent caregiver for the children. The children had been in placement for two years, and nothing indicated that defendant would be prepared to assume custody in the foreseeable future.
As to the second prong, the judge found that defendant was unable or unwilling to eliminate the harm facing the children and that delaying their permanent placement would add to the harm. Defendant had sporadic visits, but only with J.D. She had no visitation or relationship with D.T. She had not progressed to unsupervised visits, and no one recommended them. She had no viable plan for reunification.
Judge Hoffman found that defendant was unable to provide a safe and stable home, she was unwilling and unable to eliminate the harm facing the children, and any delay in permanency would add to their harm. He noted that the children's caregivers provided the only stable home the boys had known. Indeed, the caregivers were "the only true parents that [J.D.] has known," and J.D. looked at them as his parents. "All of the experts recommended permanency with the caregivers." The judge also relied on Beekman's opinion that there would be no serious harm to the children if removed from defendant and that removing the children from their caregivers would cause the children harm.
As to the third prong, the judge found that the Division made reasonable efforts, both pre and post-litigation, to provide services to defendant. These services included "substance abuse evaluations, random urines, scheduled urines, substance abuse treatment, individual counseling, parenting classes, anger management classes, visitation, therapeutic visitation, psychological evaluations, reevaluations, psychiatric evaluations, [and] bonding evaluations." The judge further found that the Division considered, but found no viable alternatives to termination. The judge noted that "[t]he caregivers here clearly do not want kinship legal guardianship. They want to adopt to provide the permanent relationship that adoptions provides."
Finally, on the fourth prong, the judge found that termination of parental rights would not do more harm than good. The judge remarked that "only good has come to these two boys since they were placed with their current caregivers." The caregivers had addressed D.T.'s issues "aggressively and vigorously . . . sometimes at their own expense." D.T. was "thriving" with the caregivers, who provided him with educational opportunities and medical and behavioral care. D.T. wanted to stay with the caregivers, and all the experts recommended continued placement with them. J.D. was also "thriving" with the caregivers, who were the only parents he had ever known. The judge noted the children's bonds with their caregivers and foster siblings: "All of the evidence is that the boys are being provided with a very loving, stable and nurturing environment."
The judge also noted that the Child Placement Review Board recommended termination of parental rights and adoption by the caregivers. The judge also found that, notwithstanding her expressed good intentions and positive outlook, defendant was not capable of parenting the children. And, because of the lack of a bond with the children, termination of her parental rights would not cause significant harm, whereas, in light of the strong bond with the caregivers, separation of the children from them would cause substantial and enduring harm.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Moreover, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S.Ct. 1388, 1412, 71 L.Ed. 2d 599, 628 (1982)). Accordingly, courts have consistently imposed strict standards regarding the termination of parental rights. K.H.O., supra, 161 N.J. at 347. However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. This is because the State, as parens patriae, has a responsibility to protect the welfare of children. K.H.O., supra, 161 N.J. at 347.
The standard for determining the termination of parental rights is known as the best interests of the child test, originally set forth in A.W. and now codified in N.J.S.A. 30:4C-15.1a, which authorizes termination if the Division can show:
(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.]
DYFS has the burden of proving each factor by clear and convincing evidence. In re Guardianship of R. G. & F., 155 N.J. Super. 186, 193 (App. Div. 1977). Moreover, the four criteria "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.
New Jersey has a strong public policy favoring permanency. Id. at 357. In all guardianship and adoption cases, the child's need for permanency and stability must be accorded primary status. Id. at 357-58.
The findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, because of the particularized expertise of family court judges in family matters, we accord enhanced deference to family court factfinding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting Rova Farms, supra, 65 N.J. at 483-84).
From our review of the record, we are satisfied that the evidence supports Judge Hoffman's findings that the Division established by clear and convincing evidence all four prongs of the best interests test. We will not disturb those findings on appeal. The judge applied the correct principles of law to his factual findings, and we find no error in the result reached.