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New Jersey Division of Youth and Family Services v. D.F.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
D.F., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF D.H., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-115-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 1, 2009

Before Judges Lisa and Sapp-Peterson.

Defendant D.F. appeals from a June 25, 2008 Family Part order terminating parental rights to her son, D.H.*fn1 We affirm substantially for the reasons stated in Judge Margaret Hayden's comprehensive written opinion dated June 25, 2008, and summarized orally from the bench on June 26, 2008.

I.

On November 7, 2005, the Division of Youth and Family Services (the Division) petitioned the court for and was granted care, custody and supervision over two of D.F.'s children, O.F. and D.H. O.F. was placed with her biological father, T.F., and is not the subject of this appeal. D.H. was placed with his adult sister, L.F., with whom he continued to reside at the time of the guardianship trial. On November 2, 2006, the court, after conducting a permanency hearing, approved the Division's kinship legal guardianship plan, N.J.S.A. 30:4C-15, for D.H. to reside with L.F. Nearly one year later, L.F. expressed the desire to adopt D.H., resulting in an order to show cause and complaint for guardianship being filed by the Division on November 9, 2007.

Trial commenced on May 30, 2008, and spanned three, nonconsecutive days. The Division presented its case through three witnesses, the first being Cleo Crossley, a caseworker who became involved with D.F. in early 2008. She was, however, familiar with the case file. Drs. Alexander Iofin and Mark Singer also testified on behalf of the Division as expert witnesses. Additionally, the Division introduced documentary evidence, most of which the trial court noted "was uncontested at the hearing." Dr. Gerald Figurelli testified as an expert on behalf of D.F.

The record before the court disclosed that D.F. has four children. D.F.S. was born while D.F. was a college student in California. L.F. and O.F. were born during D.F.'s marriage to T.F., which marriage ended in divorce in 1998. D.H., the subject of the guardianship action, was born to D.F. and R.H. on July 9, 2003. D.F. has a history of mental illness and suffers from paranoid schizophrenia. The Division's first involvement with D.F. and her children occurred in 1988 when it received a call from her reporting that her babysitter was on the floor and appeared to be drunk. Thereafter, D.F. reached out to the Division more than one hundred times, leading the Division to become concerned about her mental well-being.

On November 15, 2002, the Division received a call from an individual who expressed concern over D.F.'s mental stability. The caller alleged that D.F. was not taking her medications and that she was accusing her landlord of wiretapping her telephone line and videotaping her apartment. Later, on December 10, 2002, the Division received a referral from the University of Medicine and Dentistry of New Jersey (UMDNJ) Crisis Services reporting that D.F. was admitted to the hospital for psychiatric reasons. D.F.'s children, O.F. and L.F., were placed with their biological father, T.F., until D.F. was discharged. Both children received therapeutic services from UMDNJ while their mother was hospitalized.

In 2003, the Division received three referrals about D.F. Two referrals were from O.F.'s therapist, Dr. Lillian McMaster of UMDNJ. Dr. McMaster contacted the Division on March 18, 2003 to report an incident that occurred on the previous day during D.F.'s and O.F.'s therapy session. On that occasion, D.F. stated that there was a conspiracy against her and claimed that the therapy sessions and her personal business were being broadcast throughout the hospital. Dr. McMaster additionally stated that she was concerned that O.F. was influenced by the claims made by her mother that resulted in O.F. suffering from anxiety attacks and regressive behavior such as urinating on herself.

On April 22, 2003, the Division received another referral from Dr. McMaster. Dr. McMaster once again expressed concerns for O.F., as the child had begun to believe her mother when she claimed that their apartment was being gassed and that there were people trying to kill them. Dr. McMaster was concerned that O.F. would be at risk if she continued to be exposed to her mother's illness. She opined that D.F. "interferes with her children's need for therapy."

After D.H.'s delivery, St. Barnabas Hospital contacted the Division to express concern over the release of D.H. to D.F.'s care because of her mental instability. The Division initially placed a hold on D.H.'s discharge to D.F.'s custody but later lifted the hold after the attending psychiatric physician and nurse clinician advised the Division that they could not "speculate on whether or not [D.F.] poses a risk to her newborn child. We can only state that she did not pose any suicidal/homicidal risk while we treated her at UBHC."*fn2 However, they recommended that D.F. take medication for her "persecutory delusions." Additionally, her consulting physician at St. Barnabas concluded that D.F. did not "pose a danger to herself or to others." The Division, however, provided D.F. with a homemaker.

While D.F. initially accepted the services of the homemaker, she wrote a series of letters to the Division between August and December 2003 requesting that her file be closed and transferred to the East Orange District Office, as she would be relocating to that area. On February 26, 2004, the Division sent a letter to D.F. advising her that "[s]ince at this time no need for further services is indicated and you have not requested continued services, we will be terminating our agency's involvement effective Monday, January 26, 2004."

Two months later, however, the Division received two more referrals concerning D.F. The first referral was made on March 4, from the Newark Sheriff's Office. D.F. arrived at the Sheriff's Office and claimed that D.H. was injured "on public transportation." The Division investigated and was concerned about D.F.'s mental condition, although there were no findings of neglect. During the investigation, D.F. stated "that the police bringing her to the DYFS Office was a 'conspiracy.'" At that time, D.F. entered into a case plan with the Division in which she agreed to attend therapy on a regular basis.

The second referral came from the Essex County Prosecutor's Office on March 31, 2004. D.F. was observed to be talking to herself and making unfounded claims that corrupt people were attempting to harm both her and her child. The Division, in a follow-up investigation, learned that D.F. planned to relocate to California. D.F. wrote to the Division at its Bloomfield office on May 18, 2004 complaining about what she characterized as "bogus allegations" of her mental instability. D.F. claimed that these false allegations resulted in her "illegal hospitalization." The Division responded to the correspondence a week later advising D.F. that its case file had previously been closed four months earlier.

The Division contacted California Child Protective Services (CCPS) on June 18, 2004 to inform them it was necessary that they follow up with D.F. The Division also requested that CCPS require D.F. to complete a psychological evaluation and ensure that D.F. attend therapy in California. CCPS briefly took custody of the children on August 3, 2005, and thereafter placed them in foster care. At some point, the children were returned to D.F. and she returned to New Jersey.

When D.F. returned from California, she reported to her local welfare office for emergency assistance. She told the welfare officials that she returned to New Jersey because the FBI placed a chip in her head which made her set up drug dealers and there was radiation in the chip which was causing her and her child health problems. She indicated that she was living with a friend. A follow-up investigation revealed that O.F. was living with her father, T.F., and D.H. was staying with his sister, L.F.

On November 2, 2005, D.F. was hospitalized for one week at the East Orange Hospital Crisis Unit, as she suffered from auditory hallucinations with symptoms of paranoid schizophrenia. During D.F.'s hospitalization, O.F. remained with her father, and D.H. remained with L.F. While hospitalized, D.F. was diagnosed as suffering from paranoid schizophrenia coupled with delusions, poor insight, and poor judgment. The Division subsequently petitioned for and was granted care, custody and supervision over O.F. and D.H. on November 7, 2005. At the time of the trial, D.H. still remained with L.F.

At trial, Division Caseworker Crossley testified that the Division made multiple attempts to assist D.F. in addressing her mental illness. Specifically, Crossley testified that prior to D.H. being removed from D.F.'s care in November 2005, the Division referred D.F. for therapeutic services on several occasions and D.F. did not utilize the services. Further, according to Crossley, after the court awarded custody of D.H. to the Division, who in turn placed him in L.F.'s care, the Division referred D.F. for both psychiatric and psychological evaluations, but D.F. was non-compliant with treatment recommendations. Crossley testified that L.F. and her paramour provided a nurturing environment for D.H. and they were committed to adopting D.H.

Dr. Iofin testified regarding the psychiatric evaluation he conducted of D.F. on December 6, 2007. In his view, D.F. had limited insight into her psychiatric condition. He also concluded that D.F. was suffering from a chronic progressive psychiatric illness which interferes with her ability to provide minimally adequate care to a minor child. He conducted a mental status examination and diagnosed D.F. with a personality disorder with paranoid and schizoid personality features. After reviewing collateral materials and assessing D.F., Dr. Iofin further opined that D.F.'s personality disorder could not only negatively impact her ability to parent a child now or in the immediate future but had negatively impacted her parenting abilities in the past. Dr. Iofin was also of the opinion that D.F.'s psychiatric condition was a contributing factor towards O.F.'s "shared-psychotic" disorder. He concluded that placing another child in D.F.'s care would expose that child to the risk of suffering the same fate.

Specifically, in addressing D.F's disease, Dr. Iofin opined that medication and treatment could help to slow the progression of her disease, but because D.F. has failed to treat her mental condition with a consistent regimen, he indicated that her brain has suffered more damage than that of a paranoid schizophrenic treated with medication. Finally, assuming that D.F. would begin a treatment regimen, Dr. Iofin opined "it's possible that her functioning can improve." Nonetheless, he believed that D.F.'s prognosis for successful recovery was poor and any improvement in her functioning would be "pretty insignificant," given the degenerative nature of her condition and her previous failure to treat her condition with medication.

Dr. Singer also testified that he conducted a psychological evaluation of D.F. on January 3, 2008, and bonding evaluations between D.H. and D.F. and between D.H. and L.F. on January 24, 2008. Following his clinical interview with D.F., he found her to be confused and to have a limited grasp of reality. D.F. told him that she had never participated in parenting skills training or therapy in the past and she did not intend to take medication for her mental condition. Dr. Singer opined that the longer D.F.'s condition remained untreated, the less likely her condition could be successfully treated and the less effective medication and/or therapy will be in helping her mental illness.

With respect to the psychological evaluation, Dr. Singer testified:

[B]ased upon the data, [D.F.] does at times have the capacity to kind of engage in public displays of compliance. So there are times where she can come off socially acceptable. . . .

When she's symptomatic, though, her ability to relate and function within reality is significantly compromised. . . .

. . . When she becomes symptomatic because she can't deal within reality, any child in her care is going to be at risk because clearly . . . [D.F.] is not going to be able to realistically and within reality respond to the demands and the challenges posed by a child.

Dr. Singer also pointed out that the stress of daily child-rearing could trigger D.F.'s psychotic symptoms. In his observations of D.H. with L.F., D.H. appeared secure with L.F. and did not act out with her. On the other hand, when D.H. interacted with D.F., he observed D.H. become aggressive. He surmised that while D.H. may be bonded to his biological mother, L.F. served as D.H.'s psychological parent. Finally, Dr. Singer opined that if D.F.'S parental rights were terminated, D.H. would suffer minimal harm, but if D.H. were to be removed from L.F.'s care, he would suffer an irreparable harm.

Dr. Figurelli testified that he observed the attachment between D.H. and D.F. to be positive in nature but not fully reciprocal. He recalled an incident during the bonding evaluation between D.F. and D.H. in which D.H. grabbed a letter opener from Dr. Figurelli's desk and became aggressive and defiant. Dr. Figurelli and D.F. coaxed the letter opener from D.H. In his opinion, termination of D.F.'s parental rights would have an adverse impact on D.H. He did not, however, recommend reunification; nor did he recommend termination of D.F.'s parental rights.

Dr. Figurelli testified that he observed a positive bond between D.F. and L.F. as well. He acknowledged that an untreated mental condition could have an adverse impact upon D.F.'s ability to care for her child.

At the conclusion of the trial, Judge Hayden reserved decision and issued a written opinion on June 25, 2008, which she summarized orally for the parties the next day in open court:

The Court found Dr. Figurelli's testimony less credible than Dr. Singer's and Dr. Iofin's and, therefore, upheld Dr. Iofin's and Dr. Singer's recommendation that the harm would not be very great given the condition of [D.F.], who clearly loves her children, and clearly wants to do whatever is best for the children and to protect them from harm, but because of her untreated mental illness is really unable to protect them in the way that she would want to.

The Court analyzed the four prongs of N.J.S.A. 30:4C-15.1(a). Essentially, the first prong, whether the relationship would cause a harm to the child because of the mother's untreated mental illness, she is unable to provide a safe and stable home for the child, and this is a harm in and of itself. The Court wants to point out that Ms. - - on the one hand the severe mental illness that the mother has is not her fault and this is not a matter of what we call moral culpability. The - - but the law recognizes that it's not looking at the parent's culpability but whether the parent is able to provide a safe and stable home, and due to the paranoid schizophrenia and the - - the mother in this case is not able to provide a safe and stable home.

The second prong is whether the parent is able or willing to eliminate the harm and provide a safe and stable home, and whether the delay would add to the harm. In this case, the mother refuses to take medication or to get any treatment. Now Dr. Iofin pointed out that people with this mental illness of paranoid schizophrenia have a tendency to refuse medication and to - - and to refuse treatment resulting in degeneration of the brain over time. Therefore it's highly unlikely that [D.F.] will in the future - - or certainly in the foreseeable future get the treatment that she would need to be able to provide a safe and stable home. And Dr. Iofin was also quite frank that given the length of time that this mental illness has gone untreated the efficacy of any treatment would be doubtful. Therefore, the second prong has been met.

The third prong concerns the reasonableness of the services provided by the Division. The Division tried to get [D.F.] to engage in mental health services, but [D.F.] has steadfastly refused and said that she didn't need the services. The Division can - - really was unable to change her mind, but the Division certainly tried to get these services. The Division provided other services to the caregiver, as well as to the child, and also provided some services to [D.F.] that she - - that she partook of. She did everything that was asked of her by the Division except engage in the mental health services that she very sorely needed.

The next question is whether or not - -whether the termination of parental rights would do more harm than good. Dr. Figurelli said there would be a severe harm. Dr. Singer said there would be some harm of termination of parental rights. I - - I really reject Dr. Figurelli's testimony but I - - even with Dr. Singer there would be some harm. The test here is not whether there would be no harm whatsoever but rather whether the termination would do more harm than good.

In weighing this harm the Court is aware that the child is doing quite well with his sister [L.F.] with whom he has a secure and strong bond and also the fact that the mother really is not able to provide him with the safety and security that he needs. Unbalanced, the Court finds that the termination of parental rights will not do more harm than good.

I find that the Division proved all of these prongs by the clear and convincing evidence and, therefore, the Court holds that it is in the child's best interest in order to protect his physical, emotional, and psychological well being for his parents'[] rights to be terminated.

Therefore, the parental rights of [D.F.] . . . to [D.H.] are hereby terminated. The Division shall hence forth be the guardian of the child with the present goal of adoption by the current caregiver. I also find the goal of adoption by the current caregiver is the appropriate and acceptable permanency plan for the reasons stated in my written opinion. This litigation is hereby terminated.

On appeal, D.F. raises the following points for our consideration:

POINT I

DYFS FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE D.F.'S PARENTAL RIGHTS IN ORDER TO PROTECT HER CHILD'S BEST INTERESTS.

A. THE STATE FAILED TO PROVE THE FIRST PRONG BECAUSE THE CHILD'S HEALTH AND SAFETY IS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP WITH D.F.

B. THE STATE FAILED TO PROVE THE SECOND PRONG THAT D.F. IS UNWILLING AND UNABLE TO ELIMINATE THE HARM FACING THE CHILD.

C. THE STATE FAILED TO PROVE THE THIRD PRONG BECAUSE IT FAILED TO MAKE REASONABLE EFFORTS TO PROVIDE D.F. WITH APPROPRIATE SERVICES.

D. THE STATE FAILED TO PROVE THE FOURTH PRONG BECAUSE TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

The scope of our review of a trial judge's findings of fact is a limited one. Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We find no error in Judge Hayden's findings of fact. They are supported by adequate, substantial and credible evidence in the record and are entitled to deference on appeal, especially in light of the fact that these findings were made in the context of a family-type action, where we recognize the special expertise of Family Part judges in disposing of family-type actions. Cesare v. Cesare, 154 N.J. 394 413 (1998). We do not, however, accord any special deference to a Family Part judge's legal conclusions. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The application of those conclusions to the facts is subject to our plenary review. Ibid.

Parents enjoy a constitutionally protected right to enjoy a relationship with their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Nonetheless, parental rights are not absolute and the constitutional rights that surround family rights are "tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347. Consideration of the competing interests involved where the parental rights of parents and the welfare of children are involved is accomplished through a balancing test measured under the standard of the best interests of the child. Ibid. To that end, strict standards have consistently been imposed where an action has been commenced to terminate parental rights. Ibid.

When applying for guardianship, the Division is required to institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The Division bears the burden of proof to establish that termination is in the best interest of the child by clear and convincing evidence. Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). The best-interests-of-the-child standard is set forth in N.J.S.A. 30:4C-15.1(a) and establishes the proofs required to terminate parental rights:

(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.

These four criteria relate to and "overlap" with each other. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (citing N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 84 (App. Div. 2003)). The criteria are not "discrete nor separate." Ibid. (citing N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)); K.H.O., supra, 161 N.J. at 348. After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by D.F. are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(A) and (E), and we affirm substantially for the reasons expressed by the trial judge in her June 25, 2008 written opinion and as summarized orally from the bench on June 26, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms, supra, 65 N.J. at 484. We add only the following comments.

It was undisputed in the record that D.F. has long suffered with mental illness and that she has been consistently non-compliant with treatment protocols, most notably, attending therapy sessions on a regular basis and taking medication as prescribed. The testimony of the Division's experts that D.F.'s untreated psychotic disorder creates the risk that the disorder will be transferred to D.H., as evidenced by the conduct of O.F. prior to her removal from D.F.'s custody, was unrebutted. Consequently, the requisite harm to D.H. was clearly and convincingly established.

Additionally, the record before Judge Hayden clearly and convincingly established that D.F. is unable or unwilling to eliminate the harm to D.H. caused by her conduct. This was evidenced by her continued resistance to treatment.

Further, the Division offered a myriad of services to D.F., including a homemaker, counseling, medication monitoring, urine screening, and multiple psychological and psychiatric evaluations from which recommended treatment plans were provided. D.F. either rejected the services offered or failed to take advantage of the services on a consistent basis. Thus, the trial court properly concluded that the Division established, by clear and convincing evidence, that the Division made reasonable efforts to provide services to D.F.

Further, there was clear and convincing evidence that termination of parental rights would not do more harm than good. Dr. Singer testified that D.F. is incapable of providing permanency to D.H. This opinion is supported by evidence in the record demonstrating that D.F. has not appreciated the impact of her mental illness on her ability to parent and its impact upon her children. Dr. Figurelli did not dispute the need for D.F. to have consistent treatment. Both Drs. Singer and Iofin testified that D.F was unable to provide appropriate care for a child until she sought consistent treatment and committed to a regimen of medication.

Finally, while D.H. unquestionably is bonded to his biological mother, the record also disclosed that he is bonded psychologically to his adult sister, who the record demonstrated has capably cared for L.F. since he was placed in her care three years prior to the trial. Dr. Singer opined that D.H. viewed L.F. as his central parental figure and D.H. would suffer long-term psychological harm if his relationship with L.F. was severed. Although Dr. Figurelli did not perform a psychological evaluation of D.H., a factor the court weighed in assessing his credibility, Dr. Figurelli also agreed that D.H. viewed L.F. as his most significant parenting figure.

In short, while D.F.'s main contention is that she should be afforded more time to provide D.H. with stability and permanency, she has not appropriately addressed her mental illness in six years and there is nothing in the record to suggest that she was willing to address and treat her mental illness for the sake of reunification with D.H. Thus, the record clearly and convincingly established that termination of D.F.'s parental rights was in the best interest of D.H.

Affirmed.


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