November 16, 2009
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.M.L.
On appeal from the Superior Court, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0038-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 7, 2009
Before Judges C.L. Miniman and Waugh.
Defendant V.A.L. (mother) appeals from a July 2, 2008, final judgment of guardianship awarding custody of A.M.L. (baby or child) to plaintiff Division of Youth and Family Services (Division) and terminating the mother's parental rights. We affirm.
The history of the mother's involvement with the Division prior to the institution of this action is relevant to the termination of her parental rights. The thirty-year-old mother gave birth to her first child on February 8, 2003. A hospital social worker made a referral to the Division on February 10, 2003, because the mother, who had bipolar disorder and was due to be released that day, had tested positive for cocaine on January 7, 2003. However, the social worker making the referral noted the mother and baby were clean at birth and the mother was being referred to the Family Intervention Program run by the Association for Retarded Citizens (ARC). When the Division called the hospital social worker, she reported that the mother had been under the care of a psychiatrist prior to the birth and was being discharged with psychotropic medications.
The Division investigated the referral, visiting the mother and baby at their home on February 14, 2003. The mother told the Division worker that she had been seeing a psychiatrist, Dr. Jones, for three years; he took her off her medication when he learned she was pregnant; and she would return to his care the following week. The mother stated her housing was stable when she had been taking her medication. She had previously received Medicaid and HUD assistance and was in the process of reapplying for both benefit programs. She reported her paternal uncle M.L. and his wife were financially and emotionally supportive, her cousin J.J. had been helping her with the rent, and her aunt Gloria was emotionally supportive.
The mother began attending the ARC program on February 27, 2003, and continued to receive ARC services until October 25, 2005. ARC sent monthly reports to the Division during that entire period of time. In the beginning, ARC reported the mother's regular participation to the Division and noted the baby was "always dressed appropriately and smells wonderfully clean like a baby should." ARC expressed no concerns about the care being provided by the mother during the first three months, although the mother had a number of excused absences.
The Division had the mother attend a substance-abuse evaluation on April 17, 2003. The examiner found the mother was stable on her medication; there was a medium risk the mother could relapse; and the examiner recommended Level II Intensive Outpatient care, family counseling, a Twelve Step Recovery Program, home group, and sponsor. An ARC occupational therapist evaluated the baby on July 17, 2003, and found that her motor skills were below average for her age. The therapist was concerned about the quality of her movements and recommended referral to Special Child Health Services.
On October 23, 2003, the mother sought treatment at the Community Mental Health Center for Gloucester County. The resulting report documented the mother's struggle with bipolar disorder, anxiety, and depression. The attending therapist found the mother appropriate for outpatient counseling and noted she would require a diagnostic evaluation by a psychiatrist or nurse practitioner. The following week an examiner diagnosed her with bipolar disorder, gave her three prescriptions for medication, and approved psychotherapy for her.
On November 22, 2003, the mother was arrested after being seen with a black male who was talking with a white male subsequently arrested for possession of marijuana. The mother, who initially gave a false name, was arrested on an outstanding warrant from Gloucester Township resulting from her failure to appear in court on a single traffic ticket. She was also charged with trespassing and hindering apprehension by supplying a false name.
While the mother was at the scene of the arrest, she made some references to her eight-month-old baby being left somewhere, which was investigated by another officer. Initially, the mother lied about who was taking care of the baby; after police began searching for the baby, a woman called the police in a third town to say she was caring for the baby but was too drunk to do so. When the police arrived at the woman's apartment, she appeared intoxicated and was drinking from a vodka bottle. The responding police officers brought the baby to police headquarters. Because the mother was to be transported to the Camden County Jail, the police called the Division for assistance. While the Division Special Response Unit (SPRU) worker was at the police station, it was determined that the mother was to be released on her own recognizance. The mother admitted that the woman was a "working alcoholic" but said she was sober when she left her baby with her so she could go for a walk. The Division, which substantiated neglect, performed an emergency Dodd*fn1 removal and temporarily placed the baby with the mother's half-sister and her husband and explained the Kinship Care Program.
The Division secured an order on November 24, 2003, requiring the mother to show cause on December 16, 2003, why an order should not be entered continuing the baby under the care, custody, and supervision of the Division. On the return date, the judge approved a reunification plan submitted by the Division, requiring the mother to attend parenting classes, as well as substance-abuse evaluation and treatment, and to continue with ARC, NewPoint Behavioral Health (NewPoint), and Robins' Nest, Inc. (Robins' Nest). The court-ordered plan granted the mother parenting time, which included overnight visitations and weekends, with reunification to occur when the Division deemed it appropriate.
The mother began attending a Pacesetters Parent Education Program at Famcare, Inc., (Famcare) on March 1, 2004, and completed the program on April 19, 2004. Famcare recommended further parenting classes when the baby became a toddler.
On March 23, 2004, the mother also went to SODAT of New Jersey, Inc. (SODAT), a rehabilitation facility for young people, for a drug and alcohol evaluation. SODAT reported that the mother tested negative for drugs and alcohol and only tested positive for her prescribed medication. SODAT recommended that the mother take part in an outpatient treatment program and submit to future drug screenings. The Division approved this and the mother remained drug free until she was discharged from the SODAT program on February 15, 2005, having successfully completed the program.
Throughout the mother's interactions with the Division, she underwent three psychological evaluations by Ronald S. Gruen, Ed.D. As of the time he first evaluated her, March 9, 2004, she had been seeing her child twice a week, and the Division worker reported those visits were positive, with each enjoying the other's company. The mother reported to Dr. Gruen that she had bipolar disorder. Dr. Gruen's tests led him to conclude she also had Personality Disorder NOS. He recommended that the mother continue taking her prescribed medications, take part in a rehabilitation program that included psychiatric monitoring, and receive ongoing individual therapy, parenting skills training, and continued supervised visitation. Dr. Gruen supported increasing the amount of visitation upon the mother's progress in the recommended programs, but cautioned that close monitoring of the mother was necessary because recidivism is high in individuals suffering from bipolar and personality disorders.
At a case management review on March 29, 2004, the judge ordered that legal and physical custody of the baby could be returned to the mother's custody upon the oral approval of Dr. Gruen, so long as the mother continued with treatment and she received a positive psychological evaluation. At that time, the mother stipulated she left her child with a known alcoholic and waived a fact-finding hearing.
In mid-August 2004, the Division's goal was reunification in eight weeks. Robins' Nest began supervising visitation at the mother's home on August 25, 2004.*fn2 By early October, Robins' Nest reported everything had been going very well and recommended partially unsupervised visits.
The court-ordered visitation and treatment plan was reviewed again on October 18, 2004, and unsupervised overnight visitation was to begin at the end of the month. The mother was to continue with ARC, NewPoint, and Robins' Nest. Reunification was the approved permanency plan. Weekend visitation through Robins' Nest began in late November. Visitation was consistently accepted by the mother. Robins' Nest prepared a positive mid-case summary on January 4, 2005, and recommended reunification. As a result of the mother's compliance with the mental-health and substance-abuse programs, the judge returned the child to her custody on January 24, 2005. The judge ordered the mother to continue her mental-health treatments and participate in services provided by ARC, SODAT, and NewPoint. The judge also required that the Division continue monitoring the mother for two months and dismissed the litigation.
Robins' Nest prepared a termination summary on January 31, 2005, and recommended that the mother participate in the Family Ties Aftercare Program, which began on February 11, 2005. ARC continued to provide services and reported issues with the mother's attendance, money problems, stress and trouble sleeping. The mother reported additional difficulty with personal relationships to the Division on March 31, 2005, and the worker in response made arrangements for the Division to provide a three-month daycare voucher. The mother was compliant with the Robins' Nest weekly aftercare sessions, although she missed her April 28, 2005, session because she was sleeping. She also had not completed the daycare paperwork and taken her child to a pediatrician to have the paperwork signed. On March 29, 2005, the Division was to provide new paperwork for daycare and on May 11 it reported it expected daycare to start the next week.
The mother had been advised to apply for SSI, but did not open the letter denying her application and, thus, missed the period to appeal the agency decision. She subsequently reap-plied in May 2005. It was around this time that the mother was referred to SODAT's vocational rehabilitation program, but she never contacted them. ARC also provided the mother with a job listing.
While these services were being provided, the Division received an anonymous referral that the mother and her boyfriend were fighting and the boyfriend accused her of draining his bank account to buy cocaine. The Division investigated and concluded that the referral was unfounded. Otherwise, the Division workers reported favorably about the care being provided by the mother and stated her apartment, its furnishings, and the food supply were all appropriate.
On May 3, 2005, ARC reported that the mother had been to the emergency room regarding pain from an infected molar. On a home visit a few days later, an ARC worker found that the mother was confused about what day of the week it was, her eyes were glassy, and she complained she was dizzy and nauseated, although she insisted she was "fine." On May 11, 2005, she went to an emergency room where she was diagnosed with anxiety and an allergic reaction to medication. She was given Benadryl and Darvocet.
On May 12, 2005, ARC conducted a scheduled home visit and reported to the Division that the mother had been to the emergency room because she was ill from anxiety and an allergic reaction to medication. At that time, the mother seemed coherent, but also sick, tired, and overwhelmed, telling the home visitor, "I can't do this by myself." The Division worker took the mother for her scheduled psychiatric evaluation that day. The next day, the Robins' Nest worker expressed concern about the mother's health and its effect on her ability to care for the child.
On May 17, 2005, ARC reported that the mother's condition had deteriorated, she was in pain, had blurred vision, was slurring her words, and had become exhausted. The mother explained that her behavior resulted from taking the medications prescribed by the doctor in the emergency room to address her allergic reaction to the other medications she was taking. ARC alerted the Division to the mother's condition and requested that a Division social worker be sent to visit the mother at home.
The Division investigated the same day. The social workers observed that the mother was slurring her words and "was having a hard time walking down the hallway and keeping her eyes open." The mother claimed that she was so tired because of the medicine she was taking and had not slept the night before. The social workers talked to their supervisor and a determination was made that the child could not be left alone with the mother. When the neighbor was not available to supervise, the Division determined to effect a Dodd removal, but the mother became distraught and so the social workers took the mother to crisis care. When the Division social workers returned to their office with the child, they noticed that she was dirty and her hair was matted. Later that night after the child was medically cleared, she was placed with foster parents.
As a result of the removal, Family Preservation Services closed its file that day, recommending a partial hospitalization program that would offer therapy to the mother and daily medication monitoring. The counselor reported that the mother told them she had taken Nyquil on top of the Benadryl because she was having trouble sleeping. In her discharge summary, she also opined that the Benadryl prescribed for the mother might have been interacting with her other medications and the Xanax might have been interfering with them.
On May 18, 2005, the Division filed a second verified complaint pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12 alleging child abuse or neglect by the mother. The next day, the judge signed an order placing the child "in the immediate custody, care and supervision" of the Division. The mother was present at this initial hearing, seemed upset, and her pupils were dilated. The judge granted the mother supervised parenting time, but required that she continue taking parenting classes at ARC and follow the recommendations set forth in her psychiatric evaluations.
The Division received a report from Dr. David J. Rissmiller on May 19, 2005, regarding his evaluations of the mother on April 11 and May 11, 2005. Dr. Rissmiller noted that the mother had been under psychiatric care at South Jersey Behavioral Health for a couple of years and was then seen by a private psychiatrist. Thereafter, Dr. Clifford Jones treated her for a couple of years and, more recently, Greg Fields, a clinical nurse specialist, at NewPoint was treating her. He observed that the mother had no prior psychiatric hospitalizations, no prior suicide attempts, and no history of hallucinations, delusions, or other psychotic features. She did have manic and depressive episodes and panic attacks.
Dr. Rissmiller, however, noted she had "a pervasive pattern of instability of interpersonal relationship, unstable self-image, marked impulsivity, efforts to avoid abandonment, affective instability, chronic feelings of emptiness and inappropriate inten[se] anger" with twenty assaults. She began using cocaine when she was eighteen and discontinued its use when she was thirty, just before the child's birth.
At the time of the evaluation, the mother had prescriptions for Xanax, Depakote, Topamax, Effexor, and Trazodone. She had been treated in the past with Serzone, Wellbutrin, Paxil, Zoloft, Prozac, Seroquel, and Neurontin. Dr. Rissmiller also found that the mother had bipolar disorder, generalized anxiety disorder, and borderline personality disorder. He recommended the mother continue with the Depakote and Trazodone but recommended changes to the Topamax, Xanax, and Effexor.
The judge signed an order on May 31, 2005, keeping the child in foster care, granting weekly supervised visitation, and requiring that the mother comply with the recommendations in her psychiatric evaluation. After continually feeling ill, the mother went to a hospital on June 2 and thereafter reported a problem had been diagnosed with her kidney, she had been admitted to the hospital, and was being given antibiotics. She was discharged on June 6, 2005. ARC continued to monitor the mother's progress during June, reporting she seemed better but was having some problems because her cousin was now paying only half of her rent; she lost TANF because her child was in foster care; she was having trouble getting her prescriptions refilled; and her efforts to secure at least part-time employment were not yet fruitful, although ARC was assisting her in this endeavor. There were no significant problems with visitation after this order and ARC took over the supervised visitation beginning August 16, 2005.
At the July 18, 2005, fact-finding hearing, the judge determined by a preponderance of the evidence that the mother abused or neglected her child on May 17, 2005, because she was overmedicated from taking prescription and over-the-counter drugs. The next day, the mother attended ARC, reporting she was out of her antidepressant and had missed court the prior day. She was crying and worried about her child, having no money, and having no Medicaid. The Division provided enough money that day to fill the mother's prescription.
By August 2, 2005, the mother had received an SSI denial and ARC obtained a lawyer to handle the appeal. The mother had finally kept her appointment with the Board of Social Services and was approved for general assistance and Medicaid. ARC reported the mother's September and October financial, transportation, and telephone difficulties to the Division, commenting that visitation went well, although the mother had missed her September 27 visitation because she went to New York with Mike the day before and they did not return in time the next day.
At a compliance review on October 17, 2005, the judge continued custody with the Division and ordered the mother to continue with counseling at NewPoint, take her medication, and attend parenting skills training at ARC. Weekly supervised visitation was transferred to the Division. Relative M.G. was ruled out as a caretaker because she reported she was unable to care for the child.
On January 11, 2006, the Division filed a complaint for guardianship pursuant to N.J.S.A. 30:4C-15.1. The judge continued the Division's custody of the child and her placement in foster care at the January 17, 2006, compliance review and permanency hearing. The order required the mother to continue her counseling at NewPoint, take her medication, and permitted weekly ARC-supervised visitation. The judge approved a dual plan for termination of parental rights with adoption or reunification. The initial hearing on the guardianship case took place the same day and evaluations were ordered at the case management hearing on March 17, 2006. In the meantime, the mother had completed the SODAT program. On January 20, 2006, the child was placed in her seventh unrelated foster home.
The mother's sister reported to the Division on April 5, 2006, that the mother was missing. The mother did not call the Division until April 10, 2006, to let them know that she was staying with a friend because her boyfriend had hit her. The mother did not obtain a restraining order despite telling the Division she planned to get one.
After a second psychological evaluation and a bonding evaluation on May 10, 2006, Dr. Gruen reported on May 25, 2006, that he had no documentation to support the Division case worker's statement that the mother had overmedicated, leading to the second Dodd removal. As a result, he felt it was unclear whether the mother purposely overmedicated herself, although he did not believe that made a big difference in the disposition of the case. He opined that her diagnosis of Borderline Personality Disorder suggested instability on a broad range of important issues, that her problems were chronic and her life adjustment difficult. He concluded that she had been stabilized with her medical regimen and noted that the changes in medication recommended by Dr. Rissmiller suggested her medications were not in balance. Psychological testing suggested that the mother was unstable, emotionally dependent, and very sensitive. His prognosis was fair with psychotherapy, medication management, and emotional supports.
After the bonding evaluation, Dr. Gruen found the existence of a bond between the mother and child such that the child would suffer permanent emotional harm if that bond was permanently broken. He observed,
This case is a difficult call. [The mother] lacks emotional stability at this time; needs help; and is a dependent personality both in terms of her emotions and her propensity to abuse drugs as a palliative and an attention-seeking behavior. However, she loves her child and there is a psychological bond between them.
He expressed that he was "reluctant to proceed with termination of parental rights" and recommended that the guardianship petition be put on hold for at least three months.
On June 1, 2006, Dr. Gruen conducted a bonding evaluation between the child and her foster parents. He reported that the child was thriving in her current foster home and he would have no reservations about her current foster parents adopting her. However, he believed the child "could transition to her birth mother without any permanent emotional damage if this were the decision of the Court." He recommended that the situation be reviewed in three to six months before the child's bonding with her foster parents had solidified.
On June 28, 2006, NewPoint reported the mother was compliant with her individual therapy sessions, stable, and capable of parenting her child. It recommended continued Division support, outpatient counseling, and medication monitoring. Ultimately, the mother's stability proved to be short-lived.
The Division took Dr. Gruen's recommendation and withdrew its second complaint for guardianship on August 1, 2006. On August 8, 2006, the judge approved the Division plan for reunification. The mother continued her visits with her child, supervised by Robins' Nest for two hours per week starting August 18, 2006, and by ARC for another two hours per week. Robins' Nest noted the mother needed to set boundaries about mealtimes and activities. The mother never progressed to unsupervised visits.
The child's daycare center, Golden Gate, Inc., reported on October 20, 2006, that her behavior had become problematic after supervised visitation. At a compliance review on October 30, the judge ordered the mother to secure housing and ordered NewPoint to provide the Division with monthly reports. Robins' Nest next reported to the Division on November 21, 2006, that the mother left the child unattended on several occasions and inconsistently disciplined the child during supervised visitation. Throughout December and January, the mother's housing was still unstable and she had difficulty completing tasks, such as wrapping presents, bringing her child lunch during visitations, and failing to check the tightness of her child's seatbelt.
NewPoint reported on January 5, 2007, that the mother had missed four of the last five counseling sessions and had failed to submit to her last urine screen. On January 19, 2007, the mother allowed the child to walk out of the Robins' Nest visitation room while the mother continued to talk on the phone and make notes, causing the supervisor concern about her parenting skills. The mother cancelled visitation on January 26, 2007, because she was not feeling well and had to look for an apartment.
On January 29, 2007, Dr. Gruen performed a psychological and bonding reevaluation of the mother and child. He learned that the mother lost her home because her cousin stopped paying her rent, had been living with friends and was now being supported in a motel. She had been terminated from NewPoint and advised to return to the MICA program, was back on antidepressants, and was still "supposedly" looking for an apartment. He found she was still emotionally unstable and had management and attendance problems with her child, although she unquestionably loved her. His overall clinical impression was that the mother "is in a perpetual but unsuccessful struggle to stabilize her life." He saw little substantive change. As to bonding, Dr. Gruen observed that the mother functioned satisfactorily, but noted there was no stress and prognosticated that she "would begin to decompensate if she was in a multi-tasking situation with her daughter. The latter is what parenting is all about." He concluded the child "would likely suffer some but not irreparable emotional loss should the relationship with her mother be terminated."
Dr. Gruen reevaluated the bond between the foster parents and the child on February 8, 2007, and reported that it had strengthened since the previous June. He opined that the child "trusts her foster parents; feels safe and secure with them; and sees herself as very much loved and well cared for by [the foster parents]." He concluded that "she would suffer significant emotional harm if removed from this home."
NewPoint refused to accept the mother back into its program because the clinician thought the mother was again using drugs. The mother claimed she did not go for the urine screen because she believed her medication would show up. Robins' Nest's concerns about inconsistent discipline continued into February. The next week, the mother advised the Division that Fields had put her back on the anti-depressant and she was then taking Depakote, Topomax, Trazadone, Xanax, and Effexor.*fn3
Robins' Nest reported to the Division on February 14, 2007, that the mother still did not have housing and the Division case worker replied that the mother was residing at a motel, which was "not suitable for reunification," and Dr. Gruen was recommending guardianship. Robins' Nest terminated their supervision services on February 16, 2007, recommending adoption for the child.
At a review hearing on February 20, 2007, the judge again ordered the mother to secure housing and required the Division to refer the mother to another provider for counseling and medication monitoring. The permanency plan became termination of the mother's parental rights and adoption. The court found that termination was appropriate because the child had been in the Division's custody since 2005, the mother failed to complete all recommended services, and Dr. Gruen did not recommend reunification.
The hearing coincided with a report released by Dr. Gruen resulting from his third psychological review of the mother and his second bonding evaluation. Dr. Gruen found that the mother had shown little improvement since her last evaluation, and that while she loved her child, she would have difficulty parenting outside the supervised sessions. While Dr. Gruen found that the child would only suffer "some" emotional loss if separated from the mother, he found that the child would suffer significant emotional harm if separated from her foster parents. He concluded that the mother "is not ready for reunification at this time, and it is unlikely that she will ever be ready for reunification with" her child.
The Division referred the mother to the Rowan University Child and Family Assessment Clinic (Rowan) for help with her bipolar disorder and housing problems. Treatment began on March 26, 2007. Rowan reported on May 4 and July 17, 2007, that the mother was compliant and fully engaged in treatment and recommended that she take part in programs at NewPoint. The report did note "there have been times that she has had difficulty through medication and therapist changes in maintaining compliance. This is a common issue for individuals with this diagnosis."
Due to her continued unstable housing, the Path-Homeless Case Management Program on April 11, 2006, was considering the possibility of giving her a voucher that would cover rent until she was accepted into the HUD program. On May 8, 2007, the Division sought to terminate the mother's parental rights and filed a second complaint for guardianship pursuant to N.J.S.A. 30:4C-15 to -20.
On July 26, 2007, the mother called Rowan seeking aid with finding an emergency shelter. The therapist had to call the police at one point during the mother's call for help because "the limits of confidentiality had been exceed[ed]" and the mother "continued to exhibit high levels of agitation even after the police left." The mother declined further treatment from Rowan after this episode. Rowan concluded on August 2, 2007, that the mother was no longer best served by its clinic but that she should attend an intensive outpatient program. The clinician called NewPoint to alert the mother's physician to the situation.
The mother's attorney successfully appealed the denial of SSI benefits. The Social Security Administrative Law Judge (ALJ) on September 25, 2007, found that she was entitled to benefits effective June 15, 2005, based on her bipolar and anxiety disorders, "impairments which cause significant vocationally relevant limitations." Based on the mother's testimony, her medical records, and psychological evaluations, the ALJ concluded that she had "significant non-exertional limitations which interfere with her ability to work."
The mother testified that she cannot manage a checkbook, credit cards, or cook because of her forgetfulness. She also cannot sleep well because her mind races and she does not finish things, is easily frustrated, has no friends, and has no stable housing. The ALJ noted that her Global Assessment Functioning scores were thirty-eight and fifty, "indicating some impairment in reality testing or communication . . . or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood . . . ."
The ALJ found that the mother had a moderate degree of limitation in her "ability to perform adaptive activities of daily living, such as maintaining independent self-care, cooking, cleaning, shopping, utilizing public transportation, and handling personal finances." The ALJ concluded that "the severity of the impairments limit the claimant to work involving simple, repetitive tasks and simple instructions in a low stress environment with no production requirements and involving very limited contact with the public, co-workers, and supervisors." Finally, he determined "that the claimant's non-exertional limitations can be considered a significant compromise within the full range of all exertional work levels, and as such, substantially erodes the entire occupational base."
The mother received between $610.25 and $647.31 monthly from July 1, 2005, to December 2006, $446.59 per month for 2007, and $455.92 monthly beginning January 1, 2008. Her lawyer was entitled to a contingent fee of $5,300, leaving the mother with a lump sum of about $15,400. This enabled her to secure an apartment and she entered into a one-year lease on January 23, 2008, with a monthly rent of $750, which was $300 more than her monthly SSI benefits. Supervised visitation over the next four months was uneventful and basically went well.
A guardianship trial was held on May 15, 19, and 20, 2008. There were three witnesses at trial: Micelle Graham, a Family Service Specialist II working for the Division; Jennifer Koehler, a Division worker who summarized the child's placement history at the request of the court,*fn4 and Dr. Gruen. Graham had only been working on the case for a short time prior to trial and most of her testimony was a review of the Division's extensive records. Dr. Gruen testified consistently with his numerous reports, all of which were accepted into evidence. He opined that returning the child to her mother would be devastating to the child. When shown the SSI appeal, Dr. Gruen testified that the ALJ's findings were what he would expect to find then and in the future because of the mother's diagnoses and he agreed with the findings.
Dr. Gruen was asked if he could relate the findings of the ALJ to the mother's ability to parent and he testified:
A. Yes, I could tell you very directly. [The mother] gets tired very easily, she cannot stand stress, she ruminates a great deal, she's easily distracted, her attention span is not good, she's not focused, she's not really geared to achievement of goals. She kind of wallows, she exists and she wallows, and when you're taking care of a child you can't do that. I mean, you would have to make appointments, you have to see the kids into the school, everything is taken care of and there's a lot [of] stress in raising children and you have to be able to cope with that. I think---you know, what has always perplexed me about this case is I've never doubted that she loves the child and I've seen hundreds of cases where there's such detachment and indifference that it's scary, but she loves her child, she just can't do the job.
Dr. Gruen opined that these deficits could put the child at risk. The fact that she had obtained housing made no difference nor would a return to counseling because he really doubted her ability to persevere in a face of her life-long disability.*fn5
A judgment of guardianship was signed on June 30 and filed on July 2, 2008.*fn6 The judge apparently supplemented her reasons for termination on July 7, 2008.*fn7 The mother's parental rights were terminated and guardianship of the child was granted to the Division. The judge submitted a formal written opinion on September 10, 2008, and the mother submitted her notice of appeal the same day and moved for filing of the appeal as within time, which we granted. Our review is necessarily limited to the written opinion.
The judge determined that the Division had satisfied the four-prong test for termination of parental rights set forth in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986), and codified in N.J.S.A. 30:4C-15.1. As to the first prong regarding a child's health and safety, the judge found the Division had met its burden of proof since the mother failed to provide appropriate care to her child; left her with a known substance abuser; was unavailable to care for her child when she was arrested; failed to comply with court-ordered services; and inconsistently took prescribed medications. The judge also took into account the mother being unresponsive during a Division visit, resulting in the child being taken away for a second time. Finally, the judge considered the drug ingestion during the mother's pregnancy and the mother's terminating involvement with the counseling and treatment services at NewPoint and Rowan. Ultimately, the judge found that the mother had failed to "sustain an ability to care for [the child] for any meaning for length of time."
The judge considered the facts in this matter as similar to those in N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418 (App. Div. 2001), in which both parents suffered from mental illness. The court found that while A.G.'s ability to raise her child was more compromised than the mother here, A.G. did not abuse drugs or overuse prescribed medications, compounding the debilitating impact of her disability.
Regarding the parent's inability or unwillingness to eliminate harm, the judge found the Division had proven this prong by clear and convincing evidence because of the mother's "long-standing mental health problems which do not seem to be readily treatable with currently known medications." The judge cited the mother's inconsistent attempts at treatment and counseling and her inability to follow through on applications for government benefits and vocational services. The judge found it particularly instructive that the mother was not enrolled at the time of trial in the programs to which she had been referred or for eighteen months before. Also, the judge took into consideration Dr. Gruen's testimony that the mother remained unstable, unfocused, and had failed to show much improvement. Thus, she found that there was clear and convincing evidence that the mother was unable or unwilling to eliminate the harm facing the child.
The judge also found that the third prong, the effort of the Division to provide services, was fulfilled since it was shown that the Division "went to great efforts to assist [the mother] over a long period of time." The judge found the inability to provide further services and the amount of time the child has been out of the home left the court without a reasonable alternative to termination of parental rights.
Finally, for the fourth prong, which entails ensuring that the termination of parental rights will not do more harm than good, the judge relied on Dr. Gruen's testimony that the child would not suffer irreparable emotional loss should the parental rights be terminated and would suffer such harm if her relationship with her foster parents was terminated. Thus, she determined that there was no reason to deny a permanent home for the child and allow her to be adopted. This appeal followed.
The mother contends that the judge made pivotal errors in her fact-findings. She correctly points out that the record does not support the judge's fact-finding that Dr. Rissmiller's medication recommendations were consistent with the medications being prescribed by Fields and opposite to how the mother was using her medications, and that the mother "drastically modified" her psychiatric medication regimen without approval from treatment professionals, and "abused multiple prescription drugs."*fn8 She points out that the record does not support the judge's finding that she was arrested because of "accumulated outstanding warrants" when there was only one such warrant. The mother also urges that the record does not support the judge's finding that she "consistently reported that she could not handle the stress of parenting" her child.
The mother contends that the record does not support the judge's fact-finding that NewPoint ordered a urine screen because it was concerned about whether the mother was abusing drugs whereas the urine screen was required only because she had missed an appointment. The mother also asserts that the judge failed to acknowledge that NewPoint actually recommended reunification on June 28, 2006, and that Robins' Nest could not recommend reunification only because she was homeless at the time. She points out the judge did not mention the many visits that went smoothly, focusing instead on two instances when the child refused visitation.
Finally, the mother urges that the Division failed to prove each and every prong of the best interests test for termination of parental rights. The State rejoins that clear and convincing evidence supports each of the judge's findings under the four-prong test.
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. of Am., 65 N.J. 474, 483-84 (1974); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "The appellate court therefore ponders whether . . . there is substantial evidence in support of the trial judge's findings and conclusions." Rova Farms, supra, 65 N.J. at 484 (citation omitted).
Deference is especially given to the trial judge's credibility determinations because that judge had a "feel of the case" and the opportunity to observe the witnesses. Cesare v. Cesare, 154 N.J. 394, 411-13 (1998); accord Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Yet, "[w]here the issue to be decided is an ' alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review."
N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). In such a case, if the trial judge's findings are "so wide of the mark that a mistake must have been made," they are not entitled to our deference. C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989) (internal quotations omitted). The trial judge's legal conclusions, and the application of those conclusions to the facts, however, are subject to our plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We do not disagree with the mother's contentions respecting some of the judge's enumerated fact-findings. They do not enjoy record support and will not be considered by us in reviewing the judgment under appeal. We pause briefly to point out that we review judgments, not decisions, and may affirm on any ground. Serrano v. Serrano, 367 N.J. Super. 450, 461 (App. Div. 2004) ("Although we affirm for different reasons, a judgment will be affirmed on appeal if it is correct, even though 'it was predicated upon an incorrect basis.'") (quoting Isko v. Planning Bd. of Livingston Twp., 51 N.J. 162, 175 (1968)). Accordingly, we turn to the standards governing termination of parental rights.
Parents have a constitutionally protected right to enjoy a relationship with their children. E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). However, 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. E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347). That responsibility requires the State to protect the welfare of children and to terminate parental rights if the child is at risk of serious physical or emotional harm. Ibid.; Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979).
Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. 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 burden of proof is on the State to establish its case by a clear and convincing standard. Ibid.; see also In re Guardianship of J.N.H., 172 N.J. 440, 464 (2002); In re Guardianship of J.C., 129 N.J. 1, 10 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611-12 (1986). Our Supreme Court has "held that 'all doubts must be resolved against termination of parental rights.'" E.P., supra, 196 N.J. at 102-03 (quoting K.H.O., supra, 161 N.J. at 347; citing In re Adoption of a Child by D.M.H., 135 N.J. 473, 481, cert. denied, 513 U.S. 967, 115 S.Ct. 433, 130 L.Ed. 2d 345 (1994)). The State bears a heavy burden to show that termination of parental rights is in the best interests of the child. Id. at 103 (citing A.W., supra, 103 N.J. at 604-12.)
The best-interests 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.
The Division "bears the burden of proving each of those prongs by clear and convincing evidence." G.L., supra, 191 N.J. at 606 (citing A.W., supra, 103 N.J. at 611-12).
The four factors are not independent of each other; rather, they are "interrelated and overlapping . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006); accord E.P., supra, 196 N.J. at 103; M.M., supra, 189 N.J. at 280; K.H.O., supra, 161 N.J. at 348. Application of the test is "extremely fact sensitive" requiring "particularized evidence that addresses the specific circumstances of the individual case." R.L., supra, 388 N.J. Super. at 88; accord G.L., supra, 191 N.J. at 606 (citation omitted).
Under the first prong of the best-interests standard, "[t]he harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. The "potential return of a child to a parent may be so injurious that it would bar" reunification. A.W., supra, 103 N.J. at 605. Physical harm is not the sine qua non of endangerment; our Supreme Court has recognized that the potential for emotional injury can be a crucial factor. Ibid. The "psychological aspect of parenthood is more important in terms of the development of the child and [the child's] mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977). The attention and concern of a caring family is "the most precious of all resources." A.W., supra, 103 N.J. at 613. A parent's withdrawal of that solicitude, nurture and care for an extended period is in itself a harm that endangers the health and development of the child. See K.H.O., supra, 161 N.J. at 352-54 (discussing the best-interests-of-the-child standard).
It is abundantly clear from the record this mother loves her child, is devoted to her, and has never intended to cause her any harm. She was very faithful with visitation, missing only a handful of supervised visits in the five years prior to the judgment of guardianship. However, it is equally clear that she did cause her child harm continuously over a long period of time.
On February 14, 2003, she stated that she would apply for Medicaid and HUD benefits, but apparently did not do the latter, instead relying on her family, her boyfriend, and the Division for support.
On November 22, 2003, she left her baby with a known alcoholic, who became so inebriated that she called the police to confess she was so drunk she could not care for the baby. Had the mother's acquaintance not done so, the harm to the baby would have continued for a longer period of time because the mother lied to the police regarding her baby's whereabouts.
The mother applied for SSI benefits in 2004, but then did not open the response from the Social Security Administration for many months. When she brought the envelope to one of her social workers, an appeal of the denial was no longer possible.
By January 31, 2005, the mother knew her cousin was putting a limit on paying her rent, but she did not pursue rental assistance from HUD and allowed the problem to fester.
On March 31, 2005, the Division approved a three-month voucher for daycare and provided the mother with an application. She had not completed it as of April 28, 2005, nor had she taken the child to a pediatrician to have the application signed. The Division then had to provide her with another application for some reason. The end result was that daycare never became available before the next Dodd removal, which was at least in part a result of the mother's lack of diligence.
On May 17, 2005, the mother combined Nyquil and Benadryl with her prescription medications and became so overmedicated that she could not care for her child, leading to the second Dodd removal. The record suggests that the mother did not tell the emergency room doctor what prescription medications she was taking, because the social worker told her that she had to keep a list of her medications with her at all times and communicate that information to treating professionals. Additionally, she had stopped taking Depakote without discussing doing so with Fields or Dr. Rissmiller.
The mother's failure to timely open the SSI determination required a reapplication in May 2005, which was again denied. This was either her second or third denial. Again, the mother did not act immediately to appeal the denial. It was not until ARC learned of the denial on August 2, 2005, and obtained a lawyer for her, that a late appeal was allowed.
By May 31, 2005, the cousin was only paying half the amount of her rent, but she still did not actively pursue HUD assistance. She also lost Medicaid at that point in time because her child had again been removed from her care. Even the loss of Medicaid, which she desperately needed because of her bipolar and anxiety disorders, did not prompt her to take immediate action. It was not until August 2, 2005, that she finally kept her appointment with the Board of Social Services and was approved for Medicaid and general assistance.
The assistance she was receiving was not enough to pay her rent, her cousin stopped paying her rent altogether, and the rent went unpaid at some point in time because she did not effectively pursue a HUD application. As a result, her landlord started an eviction action. The mother was ultimately left homeless when she was locked out on October 23, 2006. Thereafter, the mother moved from location to location, staying with various people she knew, then staying at a motel. Her homelessness lasted more than a year while the guardianship proceedings were pending.
By the end of 2006, the mother stopped going for counseling sessions with NewPoint, did not enroll in a MICA problem as recommended, and failed to submit to a urine screen. This left her without counseling for her personality disorder until she began counseling at Rowan on March 26, 2007. Even that treatment was short-lived because the mother refused to return to therapy after July 26, 2007, when she breached the limits of confidentiality and the counselor called the police to intervene.
The mother expressed on more than one occasion that she could not "do this by myself." She needed daycare for her child even though she was not employed outside the home. She had difficulty setting boundaries for her child's behavior, despite being told on multiple occasions how important it was she do so. On a number of occasions, the mother either walked away from her child or allowed her child to wander off, implicating her judgment about the safety of her child. By her own admission, she cannot cook, balance a checkbook, manage credit cards, sleep well, maintain stable housing, and maintain relationships with people who will provide emotional support. Furthermore, she did not communicate to anyone, despite extensive services from multiple providers that Fields was not following Dr. Rissmiller's recommendations regarding changes to her medication regimen. These are routine everyday tasks that a parent must be able to perform, yet she clearly was never able to do them, as Dr. Gruen observed.
As Dr. Gruen aptly stated, the mother "is in a perpetual but unsuccessful struggle to stabilize her life." It is clear from the psychological evaluations, as found by the SSI ALJ, that plaintiff's disorders have caused her moderate limitations to her ability to attend to the activities of daily living. All of these deficits placed her child at risk for a very substantial period of time and that harm continued unabated through the time of trial. The Division proved the first prong by clear and convincing evidence even in the absence of any intent to harm.
Under the second prong of the best-interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This prong focuses on parental unfitness and overlaps with the proofs supporting the first prong. In re D.M.H., 161 N.J. 365, 378-79 (1999).
The testimony of Dr. Gruen and his multiple reports are very telling with respect to the second prong. The mother's bipolar, anxiety, and personality disorders have prevented her and will in the future prevent her from nurturing and caring for her child. She had three years after the second Dodd removal to get her life in order and she was not able to do that, causing on-going harm to her child. During this period of time the child suffered through six foster placements before being placed with her current adoption family. Even at the time of trial, she did not testify and did not present any plan for caring for her child. She has a life-long condition that will always require support and assistance. The Division has clearly proven the second prong by convincing evidence.
Under the third prong of the best-interests standard, the Division must make reasonable efforts to provide services to help the parents correct the circumstances that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services essential to achieving reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
Although the mother contends the Division was remiss in the provision of certain services, it is not required to be perfect or to provide every service possible. It need only make reasonable, coordinated efforts that have a realistic potential to succeed. The Division provided the mother with endless, multiple, coordinated services at all times for at least four years. When she failed at a program, or did not find the therapist helpful, the Division responded and secured replacement services. No more was required, and the Division has proven the third prong by clear and convincing evidence.
Under the last prong of the best-interests standard, the overriding consideration is the child's need for permanency and stability. K.H.O., supra, 161 N.J. at 357. If a child can be returned to the parental home without endangering the child's health and safety, the parent's right to reunification takes precedence over the permanency plan. Ibid.; A.W., supra, 103 N.J. at 607-09. The mere fact of a bond with the foster parent does not alone justify the termination of parental rights. In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 260-62 (App. Div. 2005).
"[T]ermination of parental rights likely will not do more harm than good" where the child has bonded with foster parents in a nurturing and safe home. E.P., supra, 196 N.J. at 108 (citations omitted). Yet, "the Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
This child cannot be returned to her mother's home without endangering her safety and health, despite how much her mother loves her and despite her good intentions. The mother has not been able to manage her mental illness and Dr. Gruen clearly expressed that she would not be able to do so in the near future. Furthermore, at the time of trial, the child had been in foster placement for four out of her five years of life. She had developed a strong bond with her foster parents and would suffer serious and enduring emotional and psychological harm if that bond was broken, yet would suffer only slight harm if her bond with her mother ended. The Division proved the fourth prong by clear and convincing evidence.