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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 4, 2009

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
M.G. AND L.G., DEFENDANTS-APPELLANTS.
IN THE MATTER OF THE GUARDIANSHIP OF S.G., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-04-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 29, 2009

Before Judges Lisa and Alvarez.

Defendants M.G. and L.G. appeal from the trial court's April 22, 2008 termination of their parental rights pursuant to N.J.S.A. 30:4C-15.1(a). Guardianship of their child S.G., born January 19, 2006, was awarded to the New Jersey Division of Youth and Family Services (the Division). For the reasons that follow, we affirm.

M.G. raises as points of error the following:

POINT I

THE TRIAL COURT ERRED BY TERMINATING THE FATHER'S PARENTAL RIGHTS BECAUSE ALTERNATIVES TO TERMINATION AND ADOPTION, INCLUDING CUSTODY BY THE CHILD'S MATERNAL AUNT, WERE NOT PROPERLY CONSIDERED.

POINT II

THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE NJ DIVISION OF YOUTH AND FAMILY SERVICES DID NOT MAKE REASONABLE EFFORTS TO REUNITE THE CHILD WITH HIS FATHER.

POINT III

THE COURT ERRED IN FINDING THAT THE DIVISION HAD SATISFIED THE FIRST PRONG OF THE BEST INTERESTS TEST, AS THE TRIAL TESTIMONY INDICATED THAT THE CHILD WAS UP TO DATE WITH HEALTH CARE AND DOING WELL AT THE TIME OF REMOVAL.

POINT IV

THE ORDER TERMINATING THE FATHER'S PARENTAL RIGHTS MUST BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

L.G. makes the following contentions of error:

THE DECISION TO TERMINATE [L.G.'S] PARENTAL RIGHTS WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND TESTIMONY.

PRONGS 1 & 2: THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT [L.G.'S] RELATIONSHIP WITH HER SON HAS CAUSED OR WILL CAUSE ENDURING HARM.

PRONG 3: THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT IT HAD MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO [L.G.].

PRONG 4: THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED BY CLEAR AND CONVINCING EVIDENCE THAT THE TERMINATION OF [L.G.'S] PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

Family History as Developed at Trial

The following history was developed at trial. The Division first became involved with this family in 1989. M.G. and L.G. voluntarily surrendered children born on November 28, 1989 and January 25, 1991. L.G. had four other children who were removed by the Division, or its Pennsylvania counterpart, and subsequently adopted. This appeal involves M.G. and L.G.'s third child together, L.G.'s seventh child.

While working with this family, the Division has documented problems such as medical and environmental neglect, physical and sexual abuse, and unstable housing. Both parents have had a documented history in years past of substance abuse, L.G. of alcoholism and M.G. of drug use.

As an adolescent and very young man, M.G. had a history of psychiatric hospital stays and problems in school. M.G. has been convicted in years past of passing bad checks and acts of domestic violence involving both L.G. and his mother. M.G. was sentenced on September 4, 1991 on a guilty plea to fourth-degree child endangering, N.J.S.A. 2C:24-4(a), fourth-degree cruelty to a child, N.J.S.A. 9:6-3, two counts of child endangering, N.J.S.A. 2C:24-4(a), and two counts of second-degree sexual assault pursuant to N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:5-1.

The victims were M.G.'s six-year-old nephew and his one-year-old daughter with L.G. As set forth in the judgment of conviction, defendant's conduct included urinating on his nephew, requests that his nephew perform fellatio, and striking him over ten times with a belt. M.G.'s criminal conduct towards his daughter consisted of rubbing his penis on her face. Defendant was incarcerated for an aggregate term of ten years, which he served at the Adult Diagnostic and Treatment Center pursuant to N.J.S.A. 2C:47-1. During M.G.'s incarceration, L.G. had other children; he was not the biological father. After his release, L.G. and he reunited.

On March 10, 2006, the Division received a referral that M.G. and L.G. had relocated to New Jersey from Pennsylvania with then two-month-old S.G. They were sharing the home with M.G.'s mother and step-father.*fn1 The Division responded to the home on March 14, 2006.

Upon entering the home, the Division supervisor, Sharon Walsh, saw L.G. smoking a cigarette while holding two-month-old S.G. in one hand and restraining a German Shepherd dog with the other. She was blowing cigarette smoke in the exact direction of S.G.'s face. There was so much smoke in the home that Walsh had to stand by the door; in fact, she frequently went in and out of the home for fresh air. An officer who was assisting Walsh commented that he was having trouble breathing in the home as well, despite being a smoker himself.

L.G. told Walsh that they had been living in the home for "the last couple of days," having left Pennsylvania where they lived with a cousin. After the cousin left, the landlord refused to rent to L.G. and M.G. The Division was concerned that the current living arrangements were not adequate for S.G. Additionally, because of the parents' history of moving between New Jersey and Pennsylvania, there was a concern that both M.G. and L.G. were flight risks. Thus, the Division removed S.G. from the residence that same day. M.G. and L.G. were asked for relative placement options but provided none.

When asked about S.G.'s medical status, L.G. claimed that the child had been seen at a clinic in Pennsylvania at the beginning of the month and had an appointment scheduled for his shots on March 21, 2006. L.G. said they had adequate supplies for the baby. A subsequent exam indicated no evidence of injury or ill health after removal.

Over the succeeding months, however, it was learned that S.G. had a host of cognitive and physical problems, including reactive airway disease, vision problems, asthma and seizures. Since removal, S.G. has resided with foster parents in Pennsylvania who wish to adopt him. When the child was examined at a hospital shortly after removal, staff noted the strong odor of cigarette smoke emanating from the baby's clothes. S.G. has been found to suffer from global developmental delays, hypertonia, abnormal reflexes and staring spells. The foster family is required to immediately take the child to an epilepsy monitoring unit should they note a staring spell. S.G. currently receives physical therapy, occupational therapy and speech therapy.

The psychological exams and histories of M.G. and L.G. completed by the Division over the years are remarkably similar to those made more recently. M.G.'s risk assessment was completed at Catholic Charities on April 4, 2006. Throughout the assessment, M.G. was uncooperative, refused to answer questions, read a newspaper, and repeatedly said he could not remember the details of his sexual offense. As a result, the examiner concluded that M.G.'s judgment continues to be poor, that he suffers from selective amnesia about his sexual offense, and that he was at continued risk of sexual reoffending involving children. As with L.G., the recommendation was for supervised visitation and parenting classes.

L.G. was scheduled for a substance abuse assessment on May 1, 2006. She did not disclose her prior history of alcohol abuse, however. When her failure to disclose was discovered, an attempt was made to reschedule, but she refused to attend.

On May 4, 2006, L.G. participated in a risk assessment which found her to be a person of poor judgment. It was noted that she minimized M.G.'s antisocial behavior, including sexual offending. In the opinion of the evaluator, L.G. did not understand how her conduct, transient lifestyle, poor parenting practices, and minimization of M.G.'s sexual abuse could negatively impact on her ability to raise a child. The evaluator opined that S.G. should not be returned to the parents because he would be at risk for abuse and neglect.

A psychosexual evaluation was made of M.G. by Dr. Norman Weistuch on May 11, 2006. Testing revealed that M.G. suffered from "a moderately severe mental disorder," had a "propensity for adventure and risk-taking activities," "tendency toward impulsive and exhibitionistic behavior," and indifference towards the welfare of others. He was also labeled as egocentric, self-indulgent, hedonistic, impulsive and shortsighted. As a result, Dr. Weistuch recommended supervised visitation with S.G., psychiatric evaluation, sexual abuse counseling, random drug screening and parenting training. Dr. Weistuch noted that M.G.'s lack of appreciation for his sexual offending behavior placed him at risk to reoffend.

Dr. Weistuch's psychological evaluation of L.G. noted that L.G. had completed neither parenting classes nor counseling, did not appear to fully appreciate M.G.'s sexual proclivities and the risks he might pose in the future, and only had vague plans for employment and the completion of her G.E.D. Dr. Weistuch recommended that L.G. receive major support and intervention so she could parent. This included intensive psychiatric intervention with medication, psychological counseling, parenting skill training and mentoring services, and only supervised visitation with S.G. Dr. Weistuch was very concerned about L.G.'s superficial understanding of M.G.'s sexual offending behavior. Although L.G. and M.G. were referred to parenting classes in Pennsylvania, where they had moved, they did not complete the classes.

On August 25, 2006, a psychiatric evaluation of M.G. was conducted by Catholic Charities. He was diagnosed with major depressive disorder, and attended individual and couples counseling from August 3 to November 8, 2006. He denied having any independent recall of the sexual offense he committed against his daughter because of his substance use. As a result, it was recommended that M.G. become involved in treatment for sex offenders. Although appointments were made, neither M.G. nor L.G. followed through.

During the intervening years since removal to trial, S.G.'s health issues were diagnosed and treated by the foster family with the support of the Division. They include asthma, seizure disorder, upward gaze, body stiffness, acid reflux, episodes of screaming, reactive airway disease, sensory perception issues, stiffness in his Achilles tendon and problems with balance. Additionally, S.G. suffers from chronic asthma and is highly allergic to cigarette smoke.

On or about November 2006, the Division obtained a court order excusing it from making reasonable efforts to reunite S.G. with his parents pursuant to N.J.S.A. 30:4C-11.3.*fn2 Nonetheless, the Division advised M.G. and L.G. that they could obtain services, such as counseling and a sexual offender program, at no cost in New Jersey were they to relocate. They did not do so.

S.G.'s health made visitation very difficult for the Division to supervise. The parents were repeatedly told that they needed to bathe and wash their clothes so that the baby would not be troubled by the smell of smoke. Even environmental smoke, such as on a person's clothing, could worsen his respiratory status. M.G. and L.G. had difficulty complying with this requirement, and at times were turned away from a visit with the baby because they smelled strongly of cigarette smoke.

L.G. and M.G. have not maintained long-term housing during the twenty years in which the Division has worked with them, in fact, M.G. readily admits to a history of paying a security deposit and a first month's rent, waiting for eviction, and then relocating with relatives. Additionally, despite S.G.'s removal, L.G. did not look for work. M.G.'s employment tends to last for no more than a few months at a time.

Approximately over a year after S.G. was placed with a foster family, M.G. and L.G. supplied the Division with the name of a maternal aunt as a possible relative resource. Upon investigation, the maternal aunt was ruled out because of mental health and child welfare concerns.

L.G. and M.G. were advised on numerous occasions that they needed to develop a plan in order to secure the return of S.G. At no point did they articulate a plan that would provide for safe and permanent housing, stability in employment, or the provision of medical care for their special-needs child.

Psychological and bonding evaluations of the biological and foster parents and S.G. were conducted on behalf of the Division as well as the Law Guardian. Dr. Peter DeNigris conducted psychological evaluations on behalf of the Law Guardian on January 10 and 15, 2008, and bonding evaluations on January 17 and 22, 2008.

M.G. was not then involved in any treatment for himself, did not appreciate the impact removing S.G. from his foster parents would have on S.G.'s development and had a limited understanding of his own child's medical needs. It was Dr. DeNigris's opinion that M.G. could not parent his child and that, if the child was returned to M.G., his significant medical and developmental needs would not be met.

Dr. DeNigris similarly found that L.G.'s current level of functioning was not sufficient, both financially and in terms of housing. Her understanding of S.G.'s medical needs was entirely superficial. Additionally, both M.G. and L.G. were found to have no positive bond with their child. Hence, it was Dr. DeNigris's opinion that if M.G. and L.G'.s parental rights were terminated, it would not have a negative impact on S.G.

In contrast, when Dr. DeNigris evaluated the relationship between S.G. and his foster parents, he concluded there was a consistent, positive bond between them. As a result, it was his opinion that if separated from his foster parents, S.G. would experience harm. Dr. DeNigris further opined that, given the child's special needs and bonds, it was in S.G.'s best interests that the parental rights of M.G. and L.G. be terminated so that the foster parents could adopt S.G.

Dr. Alan S. Gordon completed psychological and bonding evaluations of M.G. and L.G. on February 6, 2007, October 16, 2007, February 22, 2007, and November 8, 2007. On February 7, 2007, he completed a bonding evaluation of S.G. and his foster parents.

Dr. Gordon noted no change between the psychological tests completed on M.G. and L.G. between February and October 2007. He found L.G. to be of borderline intelligence, impulsive, erratic, dependent and lacking in the basic skills to parent. She lacked the basic ability to control impulses, had little emotional stability and little insight. Dr. Gordon noted his concern that L.G. would not follow through on medical care for S.G., as she did not take care of her own medical needs. L.G. suffers from diabetes and had not refilled her necessary prescription to treat the disease. Similarly, she suffers from grand mal seizures, was prescribed Dilantin and stopped taking the medication because she claimed she had not had a seizure in three or four years.

M.G.'s testing revealed that he had borderline intelligence, exhibited psychological dysfunction, anger, narcissism, antisocial and impulsive behavior. M.G. was uncooperative during the course of the evaluation, and denied any recall of the details of his sexual abuse of his nephew and daughter because he claimed he was in a drug and alcohol blackout. Dr. Gordon believed that M.G. neither understood his own behavior nor understood its potential consequences. M.G. had maintained neither employment nor housing for more than a few months. When asked how they would get S.G. to his various medical appointments, the parents had no answer because M.G. did not have a driver's license and L.G. did not know how to drive.

During the bonding evaluations, it was clear to Dr. Gordon that the child had an "insecure attachment" to his parents. It was Dr. Gordon's opinion that termination of parental rights would not have a long-term, harmful effect on S.G. In contrast, when the foster parents were evaluated with S.G., he seemed animated and comfortable. Being a special-needs child who requires constant attention and consistent care, the foster parents' consistent and stable care of S.G. is of crucial importance. Dr. Gordon's opinion was that parental rights should be terminated so that S.G. could be adopted by his foster parents, as they would be able to meet his physical and mental needs.

Alternatives to Termination

M.G. contends that the trial court erred in terminating his parental rights because S.G. could have been placed with his maternal aunt. After investigation, however, the Division found that the maternal aunt would not be able to meet S.G.'s medical needs "because of her own responsibilities and her own health issues." In addition, there were concerns about the aunt's history and psychiatric diagnosis. We see no error in the trial court's refusal to consider this alternative placement in light of the results of the Division's investigation.

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).]

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of our 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. of Am., 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 four prongs of the test contained within the statute must be made as a whole. See, In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

That S.G.'s "safety, health or development" has been or will continue to be endangered by the parental relationship was well established by clear and convincing evidence, as the trial judge correctly found. Over the course of twenty years, there was no significant improvement in M.G. and L.G.'s lives. Their transient and untenable living arrangements when S.G. was removed were merely a continuation of the housing problems from which they have suffered their entire adult lives. Unable to remain in a relative's apartment in Pennsylvania, they relocated to New Jersey to reside with a family member who was also a Megan's Law registrant. They continued to be unemployed.

Even after being advised of their child's asthma and breathing problems, and being requested to visit the child only after showering so as to not trigger coughing spells or asthma attacks, M.G. and L.G. could not comply with this minimal requirement. They could not come up with a plan for their child's care, despite being repeatedly asked to do so, knowing full well that if they did not they would lose this child.

In this case, the first prong of the statutory test very much overlaps with the second. M.G. and L.G. continue to endanger their child by their conduct, and are unwilling or unable to eliminate the harm facing their child, or to provide any semblance of "a safe and stable home." N.J.S.A. 30:4C-15.1(a)(1) and (2). Despite having experienced the loss of their children, these parents, involved with the Division for over twenty years, did not complete a treatment program, develop a plan, or change their behavior one iota.

S.G. is a special-needs child both cognitively and physically. His foster parents are willing and able to adopt him. The delay in permanent placement in this case could very well add to the harm faced by S.G.

Additionally, it is clear from the bonding evaluations that no harm would result to S.G. if he were separated from his biological parents. It is equally clear that significant harm would be inflicted were he to be separated from his foster parents. The foster parents are the only parents S.G. has ever known and they are fully cognizant of his special needs. They embrace their responsibilities with regard to his care to the extent they want to adopt the child.

As has been previously said, "[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).

The Division is not required to make reasonable efforts to reunite children with their parents if "the rights of the parents to another [child] have been involuntarily terminated." N.J.S.A. 30:4C-11.3(c). In this case, the parents have had their parental rights to other children involuntarily terminated. In the ordinary case, in order to satisfy the third prong of the test, the Division is expected to make "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). This requirement contemplates that reunification should be accomplished wherever possible. In re Guardianship of K.H.O., supra, 161 N.J. at 354. Interestingly enough, despite being relieved of the obligation pursuant to statute, the Division continued to extend supervised visitation. Despite the order terminating services, the Division advised the parents that if they relocated to New Jersey, services would be provided to them at no cost. The parents chose not to take the offer, and therefore, cannot complain that more should have been done for them. Over the years, the Division has expended many resources on M.G. and L.G., to no avail.

The bonding evaluations established beyond any dispute that termination will not do more harm than good. In every instance, "[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). It is a grave loss to a child to lose biological parents and clearly "doubts are to be resolved against" disruption of the relationship. Id. at 16. But permanence is crucial to a child's upbringing, and must be taken into consideration. See, N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

In addition to the bonding evaluations, which established both the absence of a psychological bond between biological parents and child and the presence of a strong psychological bond between the child and foster parents, neither parent in this case has demonstrated any parenting skills such that they can be expected to reliably care for S.G. Neither parent seems to understand or is willing to readily acknowledge the extent of S.G.'s problems.

The State has met its statutory burden by clear and convincing evidence. Both parents have been offered services for years but have been generally noncompliant, displaying not only indifference to the need to change in order to avoid the loss of their children but also a lack of acceptance of a need to change. We find that the trial court did not err in its conclusions.

Affirmed.


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