October 7, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.S., M.S., AND D.J., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FG-17-23-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2009
Before Judges Rodríguez, Reisner and Chambers.
M.S. appeals from a March 31, 2008 order of the Family Part terminating her parental rights to her three children. We affirm.
Based on the record, we outline the factual and procedural history of this case. M.S. gave birth to A.S. on July 10, 2001, and to Ma.S. on October 27, 2004. On December 8, 2005, she gave birth to D.J. at Memorial Hospital in Salem County. Upon D.J.'s delivery, both M.S. and baby D.J. tested positive for marijuana. The next day, December 9, 2005, a Memorial Hospital worker reported D.J.'s and M.S.'s drug test results and "poor prenatal" care to the New Jersey Department of Human Services, Office of Children's Services. The report was referred to the Division of Youth and Family Services (DYFS).
DYFS caseworkers investigated the family residence on December 9, 2005, finding S.S., M.S.'s mother, at home caring for Ma.S. Ma.S. had a bruised nose, which S.S. reported to be from a fall. DYFS workers inquired about the sleeping arrangements in the two bedroom home, where M.S., S.S., "Uncle Pete," A.S., Ma.S., and now D.J. were to live. S.S. initially reported that Uncle Pete used one of the bedrooms, while S.S. and A.S. shared a twin bed in the other bedroom and M.S. and Ma.S slept on the couch. DYFS workers noted that there was no crib or bassinet, diapers, or baby clothing in the home. S.S. reported that she would be making those arrangements when M.S. and D.J. were discharged from the hospital.
When DYFS workers asked if the children's vaccinations were current, S.S. indicated that they were and reported that A.S. was on medication for diabetes. S.S. reported that several months prior, while the family was visiting a diabetic friend, A.S.'s blood sugar rose too high and that S.S. and M.S. gave him an insulin shot, using the friend's insulin and needle. S.S. reported that neither she nor M.S. followed up with a doctor about the incident.
When DYFS worker spoke with M.S. at the hospital, she admitted to smoking marijuana once while pregnant. M.S. also claimed that A.S. had diabetes, and that his pediatrician, Dr. Mallari, checked his blood sugar levels every day. M.S. reported that she had been unable to find affordable housing, and the DYFS worker indicated that social services could assist her. Based on the totality of the allegations, DYFS filed a notice of emergency removal pursuant to N.J.S.A. 9:6-8.29 on December 9, 2005.
DYFS workers removed Ma.S. from S.S.'s care and took him to Dr. Auerbach, where A.S. had also been taken to be examined. DYFS workers spoke with Dr. Mallari, who said that neither child had diabetes. Blood tests at the emergency room confirmed that neither child had any detectable disease or illness.
On December 13, 2005, DYFS filed a complaint against M.S.*fn1 alleging that, (1) both M.S. and newborn D.J. tested positive for marijuana, (2) M.S. received "poor" prenatal care for D.J. and was medically negligent in the care of her sons, and (3) that the family's living situation was overcrowded and inadequate. Judge Johnson entered an order on December 13, 2005, placing all three children in the custody of DYFS, pursuant to N.J.S.A. 9:6-8.1, et seq., N.J.S.A. 30:4C-12, and R. 5:12-1 et seq., for the protection and best interests of the children. Judge Johnson determined that reasonable efforts to prevent placement were not required by DYFS at that time because of an imminent danger to the children, pursuant to N.J.S.A. 30:4C-11.12.
On the return date of an Order to Show Cause on January 10, 2006, Judge Johnson ordered that custody of all three children remain with DYFS, and that M.S. have visitation with all three children. Judge Johnson also ordered M.S.: (1) to attend a psychological and parenting assessment and a substance abuse evaluation; (2) to submit to random drug screening; and (3) to attend parenting skills training. Additionally, the court ordered Ma.S. to receive an early intervention team evaluation, and a neurological evaluation to address night terrors. A.S. was to receive speech therapy and a child study team evaluation. The court ordered DYFS to investigate the possibility of placement with F.H. or J.C., family resources suggested by M.S.
On February 14, 2006, the court ordered M.S. to complete a Level I outpatient substance abuse program, and to attend AA/NA meetings. During the months of January and February, M.S. submitted to weekly drug tests with negative results, and her February 2006 monthly treatment report for substance abuse was satisfactory.
Immediately after the court hearing on February 14, 2006, M.S. fainted and was taken to a hospital. M.S. later reported that she had been stressed as a result of the hearing, seeing the father of A.S. in court, and having forgotten to eat for two days. On March 21, 2006, M.S. stipulated to using marijuana during her pregnancy with D.J. and to having had poor prenatal care, in violation of N.J.S.A. 9:6-8.21(c)(4). At a dispositional hearing on March 21, 2006, Judge Johnson ordered the children to remain in their placements at DYFS and for M.S. to continue her substance abuse program and parenting classes.
On March 20, 2006, and April 20, 2006, M.S. was evaluated by Janet Cahill, Ph.D., to determine whether M.S. could safely parent her children, specifically whether M.S. had impaired judgment regarding the medical needs of her children. Dr. Cahill administered Personality Assessment Inventory and a Parenting Inventory tests, interviewed M.S. and S.S., and observed the family interacting together. In her interview with Dr. Cahill, M.S. reported: (1) being previously admitted to a psychiatric hospital, (2) refusing to touch or pick up Ma.S. because she had been afraid of giving him a disease, (3) seeing large patches of skin falling off Ma.S., and (4) that A.S. had allergies and diabetes, despite being informed that recent tests showed this to be false. Additionally, M.S. reported being unaware of Ma.S.'s "obvious" developmental delays. Dr. Cahill diagnosed M.S. with schizoaffective bipolar disorder, referred her for a psychiatric evaluation, and recommended that M.S. not be allowed unsupervised contact with her children.
Dr. Cahill also expressed concerns about S.S.'s lack of judgment regarding M.S.'s mental health and behavior toward the children. Dr. Cahill considered S.S. to be an effective caregiver for the children, but felt she could not be an effective guard against the threat of harm to the children posed by M.S.
On April 10, 2006, the New Jersey Cares Institute conducted a physical and psychological evaluation of A.S. A.S. had reported to his foster mother that he was "allergic" and diabetic, and he frequently asked for medication. A.S. also exhibited regressive behaviors after visits with M.S., including escalated aggression. The report notes at several points that A.S.'s reported history of GERD, allergies, and lactose intolerance had not been clinically evident since placement with DYFS. The report does indicate that there is a record of A.S. having been prescribed allergy medication and an epi-pen prior to his placement with DYFS. However, a visit to a pediatric allergist on February 6, 2006 revealed no allergic reaction to a variety of substances.
M.S. completed her drug treatment program on May 9, 2006, and continued to test negative for drugs through June 28, 2006. M.S. completed the court ordered parenting program at Famcare on May 15, 2006. During visits with the children, staff noted that M.S. had difficulty controlling the children.
Dr. Brenda Porter, of the Children's Hospital of Philadelphia, Division of Neurology, evaluated Ma.S. on May 22, 2006. Her report indicated Ma.S.'s history of "minimal social interaction" as a result of his mother being afraid of his skin falling off. Dr. Porter reported that Ma.S. exhibited "mild developmental delay which may be environmental as it is improving now that he is in foster care." Ma.S. began developmental therapy at an Early Intervention Program on May 31, 2006.
At a compliance review hearing before Judge Segal, on May 30, 2006, the court ordered M.S. to submit to a psychiatric evaluation in response to Dr. Cahill's concerns. At another compliance hearing on July 26, 2006, M.S. was ordered to attend partial care and counseling. As of this hearing, M.S. was no longer required to submit to drug testing.
DYFS arranged for M.S. to begin counseling sessions with Dr. Scott Schaeffer on September 14, 2006. However, Dr. Schaeffer terminated the sessions due to M.S.'s lack of attendance. DYFS also arranged for M.S. to begin partial care services, but M.S. did not complete the program.
A compliance review hearing on September 26, 2006, ordered that S.S. be evaluated as a potential placement for the children. In November 2006, DYFS arranged a psychological and bonding evaluation for S.S. with Dr. Joanne Schroeder, to determine her suitability as a placement for the children. Although Dr. Schroeder found that S.S. had "excellent parenting skills," she was concerned with S.S.'s minimization of M.S.'s behavior and its potentially harmful effect on the children. DYFS offered counseling services and the Robin's Nest program to assist S.S. in addressing these concerns.
The children were placed in the care of S.S. on May 11, 2007, despite concerns about S.S.'s ability or willingness to protect the children from M.S. Also, S.S.'s house had no hot water at the time, and she claimed that the landlord had not turned it on. On May 14, 2007, DYFS workers noted that the hot water still had not been turned on and S.S. admitted that she owed the gas company over one thousand dollars, an amount that DYFS paid. While staying with S.S., A.S. frequently missed days of school, and had to repeat kindergarten as a result.
Around this time in 2007, M.S. moved to Virginia. The court order prohibited M.S. from unsupervised visits with the children at S.S.'s home. DYFS provided M.S. with contact information for services in Virginia, but M.S. did not contact any of the referrals. Additionally, DYFS provided M.S. with bus passes from Virginia to New Jersey so she could continue visitation with her children. During that time, workers at the supervised visit agency reported that A.S. claimed his mother came to visit them at S.S.'s house, and sometimes stayed the night.
On October 1, 2007, the court entered a permanency order accepting DYFS's plan of termination of parental rights because M.S. "has been unable to correct the harm she poses to the children."
On October 21, 2007, M.S. gave birth to a fourth child, in S.S.'s home in New Jersey. The ambulance S.S. called brought M.S. to a hospital in Delaware, where she and the baby were admitted. On October 22, 2007, DYFS received a referral from a staff person at the hospital because M.S. tested positive for marijuana upon admission, although the baby tested negative. M.S. admitted to using marijuana twice during her pregnancy. M.S. changed her story regarding the circumstances leading up to her having given birth in S.S.'s house, but eventually asserted that she was in New Jersey for a visit, staying with Uncle Pete, and walked to her mother's house while in labor. A DYFS worker interviewed M.S. at the hospital, and M.S. admitted trying to prevent DYFS from finding out about the baby.
After presenting this case history through documentary evidence and testimony from two DYFS workers, the State presented expert testimony from a psychologist, Dr. Linda Jeffrey. Based on extensive psychological testing, interviewing M.S., and reviewing her history, Dr. Jeffrey diagnosed M.S. as having substance dependence NOS, and "ruled out delusional disorder," as well as "[n]arcissistic personality disorder with histrionic and compulsive traits and sadistic and paranoid features."
Dr. Jeffrey concluded that M.S. had "major impairment" of her ability to act as a parent and that the children "would be at risk of harm in [her] care." Dr. Jeffrey also testified that M.S. was a poor candidate for therapy, because people with very high levels of narcissism tend to deny that they have problems and have difficulty committing to therapy.*fn2 Even if M.S. did so, six months of therapy would be insufficient to enable her to become a fit parent.
Significantly, Dr. Jeffrey not only reported the results of the battery of psychological tests she administered to M.S., she also explained each test in great detail, relating the test results to M.S.'s capacity to act as a parent. In particular, she explained why M.S.'s history of using drugs while she was pregnant was symptomatic of drug dependency and poor judgment, and why a parent with strong narcissistic tendencies was likely to place her own needs ahead of her children's needs.
Dr. Jeffrey also testified that M.S.'s problems with delusional thinking were likely to have led her to believe that A.S. was ill when he was not. She explained the physical harm A.S. could suffer from M.S. improperly administering insulin when he was not diabetic, and from her repeatedly administering unnecessary and painful blood tests. Dr. Jeffrey also detailed the psychological harm that could befall the child from M.S.'s persistent telling him that he was sick and treating him as sick, when he was in fact healthy.
In addition to her psychological evaluation, Dr. Jeffrey performed a bonding evaluation of M.S. and the three children. She observed that the children did not show an interest in playing with their mother and did not protest when the visit ended. She testified that the children showed an "insecure attachment" to M.S., and she displayed a poor ability to manage their behavior. Based on what she observed during the visit, Dr. Jeffrey testified that the children were not displaying spontaneous affection [for M.S.]. They were not responding to her authority. She wasn't able to exert authority or chose not to exert authority to establish order... and there was not a sense of comfort, relaxation, and security in her presence.
Dr. Jeffrey also explained why an insecure bond with a parent "can be highly detrimental in a child developing the basic social skills that are necessary for intimacy and the formation of long-term relationships and then in turn, in parenting themselves." Severing such an insecure bond would not cause serious and enduring harm to the children.
In conducting a bonding evaluation of the grandmother, S.S., with the children, Dr. Jeffrey observed some of the same problems she saw with M.S. Particularly, S.S. was not able to deal with Ma.S. when he threw a temper tantrum, she "did not curb the activity of the children or organize them and also had some difficulty in managing the children." According to Dr. Jeffrey, S.S. "appeared somewhat overwhelmed with managing the children's behavior."
Based on S.S.'s past conduct, Dr. Jeffrey also opined that S.S. was not capable of protecting the children from M.S.
[O]ne of the records I reviewed raised concern... about something akin to enabling. It had to do with the interviews of the children indicating that... at least [A.S.] had been encouraged not to tell his counselor that his mother was in the grandmother's house, and that's very disturbing.
.... My understanding is that [A.S.] also reported that he and his siblings were being hit by [M.S.], and that was while the children were in the care of the grandmother.
Dr. Jeffrey testified that S.S.'s involvement in the insulin incident "raises concerns regarding her ability to separate the children's needs from her daughter's perception of reality." She also opined that S.S.'s participation in the incident in which M.S. gave birth to her fourth child and then sought to conceal the child from DYFS, "raises grave concerns in my mind of her willingness to be forthright and to see problems in her daughter's behavior, and that is also a parenting issue in terms of her ability to protect the children."
M.S. presented the testimony of a psychologist, Dr. Kenneth Goldberg. He testified that he began his interviews in DYFS cases with the assumption that the person being interviewed was a fit parent. He also discounted the results of psychological tests in DYFS cases because the subjects were under stress and would naturally be defensive and trying to show themselves in a positive light. He criticized the MCMI-3 test, on which Dr. Jeffrey partially relied, as "over-diagnosing" problems, because it was not intended to be used to determine fitness to parent.
Dr. Goldberg concluded that M.S.'s test results revealed "a healthy profile that showed what appeared to be a histrionic- type of style." He explained his belief that a narcissistic parent can still be "a very functional parent" although "there may be some nuances of [the child's] emotional needs that will be missed." He opined that, despite her test results showing some paranoid, sadistic and histrionic tendencies, M.S. was basically a healthy person who could function as a parent. Based on his bonding evaluation, he also believed M.S. had a normal relationship with her children. He observed "nothing... that would raise concerns about her capability of taking care of them."
In an interview with M.S. shortly before the trial, she explained to Dr. Goldberg that she had intended to give birth to her fourth child "over the state line" to avoid having DYFS involved with that child. During that interview, he also observed M.S. having a healthy interaction with her children. He concluded that the children had bonded with her and would be severely harmed if her parental rights were terminated.
In his reports, Dr. Goldberg offered a lengthy critique of DYFS's practices, asserting that DYFS intervention often tended to do more harm than good. However, he also testified that in most cases, he and the DYFS-retained psychologists will come to similar clinical perceptions of the parents they evaluate. This case was an exception. He admitted that he did not know that M.S. had smoked marijuana while she was pregnant with her most recent child. He also downplayed the significance of M.S.'s pattern of treating A.S. as though he was ill when he was healthy. In that context, he also insisted that if DYFS removes a child for one reason, it should not seek to address other parenting problems that become apparent after the removal, unless those problems are "egregious."
M.S. did not testify, but she presented testimony from her mother, S.S. In May 2007, the three children were placed with S.S. at her home in Penns Grove, New Jersey. She understood that M.S. was not to visit the children at her home, and she contended that she complied with that requirement. She denied telling A.S. not to reveal that M.S. was visiting the house. According to S.S., M.S. showed up unannounced on her doorstep at 4 a.m. one night and said that she was in pain and had walked there from her uncle's house. While S.S. allowed M.S. to come in and give birth on her bed, she also called 9-1-1 and summoned the police and an ambulance. S.S. claimed she did not tell the ambulance where to take M.S. and the baby. S.S. did not immediately call DYFS because she anticipated they would take the new baby.
S.S. also testified that while the family was staying in Virginia, M.S. gave A.S. insulin on the instructions of his New Jersey pediatrician after a test showed that his blood sugar levels were high. She testified that she knew what the pediatrician's instructions were because she, M.S. and a friend were all listening to the doctor over a speakerphone. S.S. claimed that a Virginia doctor, Dr. William Carr, had given M.S. a kit to test A.S.'s blood levels, but she could not explain why the kit was not turned over to DYFS when they took custody of A.S. S.S. herself is diabetic. She admitted knowing that A.S. was hypoglycemic, as opposed to diabetic.
At the time of the trial, all three children had been living with the same foster family for about three months, and the foster parents had expressed an interest in adopting the children. At oral argument the State's counsel advised us that two of the children are currently living with family members in Virginia. The youngest child remains with the foster family.*fn3
In a comprehensive, sixty-nine page opinion, Judge Fineman found that Dr. Jeffrey was a more credible expert than Dr. Goldberg, for reasons he explained in detail. He also did not find S.S. to be a credible witness. After reviewing the applicable law, he found that DYFS had proven by clear and convincing evidence that termination of parental rights was in the children's best interest, following the four-prong test set forth in N.J.S.A. 30:4C-15.1.
With regard to the first prong, the trial court determined that "M.S. has clearly subjected the children to harm." The court noted M.S.'s history of substance abuse, including having tested positive for marijuana when D.J. was born, her fear of holding Ma.S. and Ma.S's subsequent developmental delays, and her persistent belief that A.S. was ill in contradiction to medical testing. The court held that A.S. had been in imminent danger when M.S. had injected A.S., who was not diabetic, with insulin. The court also pointed to M.S.'s violation of the court's order by visiting S.S.'s house while the children were living there. The court credited the testimony of Dr. Jeffrey for the assertion that "M.S.'s psychological disorders and continued drug use seriously decrease her parenting capacity and the children would be at high risk of harm if they were returned to her."
With regard to the second prong, the court found clear and convincing evidence that, "M.S. is unwilling and unable to eliminate the harm since she is unable to control her serious addiction problems and her severe personality problems do not allow her to parent safely." In support of that finding, the court noted that M.S. reported to Dr. Jeffrey that her plan for the future was essentially to return to her mother for help. Additionally, the court found it significant that M.S. tested positive for marijuana both at the birth of D.J., which initiated DYFS's removal of her children, and at the birth that took place in her mother's house. The court found this to be "further evidence that M.S. continues to be unable to make appropriate decisions regarding her children." The court also pointed to the evidence offered by Dr. Jeffrey of the harm caused by the insecure attachment of the children to M.S.
Judge Fineman also specifically credited the testimony of Dr. Jeffrey, which he found to be more credible than the testimony of Dr. Goldberg. The court explained that Dr. Goldberg's opinion was not based on extensive testing and that Dr. Goldberg had strong negative views about DYFS. The court concluded that "Dr. Goldberg's analysis was flawed."
With regard to prong three, the court held that DYFS had made "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home...." The court cited a long list of the services offered to M.S. by DYFS. The court also noted the efforts made by DYFS to evaluate alternative family placements for the children, none of which were successful.
Judge Fineman specifically addressed concerns with placing the children with S.S., referencing Dr. Cahill's concerns that S.S. would yield to M.S.'s actions and judgment and could put the children at risk of harm. The fact that S.S. did not call DYFS after M.S. gave birth in her home, in violation of the court's order, was "troubling" to the court. Judge Fineman found that S.S.'s testimony surrounding the circumstances of the birth was not credible, and that S.S. attempted to deceive DYFS regarding the birth. Finally, the court noted Dr. Jeffrey's testimony that the children also had a harmful insecure attachment to S.S.
Considering the lack of suitable alternative placements, Dr. Jeffrey's testimony that M.S. would need at least more than six months of therapy to even begin to address her problems, and the children's need for permanency, the court found that the third prong had been demonstrated by clear and convincing evidence.
Finally, with regard to the fourth prong, the court found clear and convincing evidence that termination of M.S.'s parental rights would not do more harm than good. First, the court noted Dr. Jeffrey's assertion that M.S. and the children have an insecure bond, which is likely to cause serious and lasting harm to the children's well-being. Secondly, the court noted M.S.'s "severe psychological impairments" that would continue to harm the children if they were in her care, and Dr. Jeffrey's testimony that therapy was not likely to help M.S. in the reasonably foreseeable future. The court found this important, citing "New Jersey's strong public policy in favor of permanency" when considering the termination of parental rights. In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999).
While the court acknowledged Dr. Jeffrey's assertion that severing even an insecure bond is likely to cause harm to the children, the court also credited Dr. Jeffrey's assertion that the "severance of M.S.'s relationship with the three children is unlikely to cause serious and enduring harm. M.S. did not display parenting skill and her children are likely to be at risk for harm in her care. [Dr. Jeffrey] does not recommend the return of her children to M.S." The court found Dr. Jeffrey's conclusion to be "clear and convincing evidence that the termination of M.S.'s parental rights will not cause more harm than good."
On this appeal, we must defer to the trial court's factual determinations "unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" 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)). Indeed, special deference is owed to the factfinding of family part judges in light of their expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 25 (2007) (quoting Manalapan Realty, L.P. v. Township Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Guardianship actions implicate a constitutional right to parental autonomy, recognized under both the Federal and New Jersey Constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed. 2d 551, 558-59 (1972); Div. of Youth and Family Servs. v. E.P., 196 N.J. 88, 102 (2008); see also Moriarty v. Bradt, 177 N.J. 84, 101 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). However, "[t]hat fundamental parental right... is not without limitation. The State has a basic responsibility, as parens patriae to protect children from serious physical and psychological harm, even from their parents." N.J. Div. of Youth and Family Servs. v. E.P., supra, 196 N.J. at 102. In striking a balance between these competing considerations, courts seek to act in the "best interests of the child." N.J.S.A. 30:4C-15(c).
M.S. contends that the Division failed to meet its proofs under the four-part guardianship inquiry articulated in Division of Youth and Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1:
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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.
See In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999) (discussing codification). In their application, the four factors above "are not discreet and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." Div. of Youth and Family Servs v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).
Having reviewed the record, we find that M.S.'s appellate contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:1-3(e)(1)(E). We affirm substantially for the reasons stated in Judge Fineman's cogent and thorough written opinion. We add the following comments.
The decision of this case hinged in large part on the judge's decision to credit the testimony of Dr. Jeffrey instead of Dr. Goldberg, and to reject the testimony of S.S. as not credible. Nothing in the record persuades us to depart from the usual rule of deference to the trial judge's credibility determinations. See Cesare, supra, 154 N.J. at 413; State v. Locurto, 157 N.J. 463, 471 (1999). Moreover, the judge's additional factual findings are supported by substantial credible evidence.
The record supports a finding that M.S. has serious psychological problems which caused her to engage in bizarre behavior toward her children, including subjecting A.S. to unnecessary medical testing, inappropriately injecting him with insulin, and convincing him that he had various illnesses that he did not have. A.S. required extensive professional counseling to address the results of M.S.'s conduct. Her delusions also caused her to refuse to hold another child, Ma.S., when he was a baby, because she thought his skin would fall off. The record further supports a conclusion that M.S. had an unaddressed substance abuse problem. She repeatedly used marijuana while pregnant with her children, one of whom was born testing positive for marijuana. DYFS was not required to wait until the children were irreparably harmed before removing the children from M.S. In re Guardianship of D.M.H., supra, 161 N.J. at 383.
The record also supports a finding that S.S., while a loving and well-intentioned grandparent, was unable to protect the children from M.S. She did not comprehend M.S.'s inability to separate delusions about the children from reality. Even on a cold record, her explanation of the insulin incident lacks credibility, and she aided and abetted M.S. in her efforts to conceal her fourth child's birth from DYFS. S.S. also was not willing or able to enforce the court-imposed requirements for supervised visitation, which were designed to protect the children. Crediting Dr. Jeffrey's testimony, S.S. also had some difficulty in dealing with the three children, two of whom had special needs. Further, the children had no secure bond with either M.S. or S.S.
There is also substantial credible evidence that DYFS offered appropriate services to assist M.S. She did not take advantage of the services in important respects. Moreover, even with additional therapy, she would not be able to safely parent these children at any time in the foreseeable future. See N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005).
The children, now ages eight, five and four, have a right to a chance at a permanent and stable living arrangement. See N.J.S.A. 30:4C-15(d). While DYFS did not arrange for a bonding evaluation of the foster parents, the children had only been with that family for a short time. Moreover, unlike Division of Youth and Family Services v. A.R., 405 N.J. Super. 418 (App. Div. 2009), where the children had very significant and close relationship with their mother, who was responding favorably to services, here the children have at best an insecure bond with M.S., her behavior has harmed them, and she has not taken the steps necessary to become a fit parent. Termination would be appropriate whether or not there is an immediate permanent placement available.