December 1, 2009
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF D.S., MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-60-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 2, 2009
Before Judges Rodríguez, Reisner and Chambers.
The Division of Youth and Family Services (DYFS) brought this litigation to terminate the parental rights of E.T. (mother) and R.S. (father) to their son D.S. born on September 2, 2005. At the conclusion of the trial testimony, R.S. entered into an identified surrender, voluntarily giving up his parental rights in favor of D.S.'s current caregivers.*fn1 The case proceeded against E.T., resulting in the judgment of January 15, 2009, terminating her parental rights to D.S.
E.T. now appeals that judgment, raising the following issues:
THE ADJUDICATION OF THIS MATTER WAS FUNDAMENTALLY UNFAIR TO APPELLANT.
THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE.
WITH HER DEPRESSION UNDER TREATMENT AND IN REMISSION, THERE IS NO HARM POSED TO D.S. BY E.T.'S TREATABLE MENTAL ILLNESS.
THE EVIDENCE AT TRIAL ATTESTED TO E.T.'S ABILITY AND WILLINGNESS TO TREAT HER DEPRESSION WHICH THE DIVISION'S OWN EXPERT DIAGNOSED AS IN REMISSION.
THE DIVISION DID NOT PROVIDE "REASONABLE EFFORTS" AND THE TRIAL COURT'S CONSIDERATION OF ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS, AS REQUIRED BY STATUTE, WAS INADEQUATE.
TERMINATION OF PARENTAL RIGHTS WILL ALWAYS CAUSE MORE HARM THAN GOOD WHERE ALTERNATIVES TO TERMINATION, AUTHORIZED BY STATUTE, ARE AVAILABLE.
We reject these arguments and affirm for the reasons expressed by the trial judge in his lengthy decision placed on the record on January 15, 2009.
We will not repeat the evidence set forth in detail in the trial court's oral decision here, but merely note the following salient facts.
D.S., born on September 2, 2005, was the second child of E.T. and R.S. Four months earlier, his older sibling, A.S., had been placed in kinship legal guardianship with a maternal aunt with the consent of E.T. and R.S. In May 2006, E.T. told a DYFS worker, that she had become "overwhelmed" and turned the care of D.S. over to R.S who was living with his sister. On August 7, 2006, when DYFS learned that E.T. and R.S had reunited and taken D.S. from R.S's sister's home, DYFS effected an emergency removal of D.S. D.S. was placed with E.T.'s brother and his wife, and he has remained with them since that time. They have rejected kinship guardianship and want to adopt D.S.
D.S. is a special needs child. He was evaluated on October 4, 2007, at the age of two, by Olga Goldfarb, M.D., of Cooper Children's Regional Hospital, Robert Wood Johnson Medical School, Division of Pediatric Neurology. Her diagnosis was pervasive developmental disorder, not otherwise specified, or high functioning autism. She indicated that D.S. would "need a specialized education plan focusing on communication and learning social engagement skills and play skills. Applied behavioral analysis can be utilized. Speech and occupational therapy should also be part of the plan."
E.T. has long standing mental health problems, including, by her own admission, four suicide attempts, multiple hospitalizations, and electroshock therapy, within five years before D.S.'s birth. Dr. Karen Wells, whom the trial court found to be a "highly credible" witness, conducted a psychological evaluation of E.T. on October 23, 2007. While she found E.T.'s major depression to be in remission, she testified that E.T. "did not possess the minimal capacities to provide a stable ability to parent [D.S.] over time in a consistent manner."
E.T. herself at trial recognized that she had been unable to care for D.S., acknowledging that D.S. was given to her brother "[b]ecause I could not take care of him." Although she expressed her desire to have D.S. returned to her care, her testimony suggested that she could not immediately undertake the care of the child. She stated that:
[N]ow I would be happy if we just could work toward reunification until one of us or both of us had a place that was fit for a, fit for [D.S.] who now, you know, you have told me he has got all of these special needs and he has got to go to special therapy, special school. I don't think either of us right now are in the position. But I think that, you know, down the road we could be.
Dr. Wells conducted a bonding evaluation of D.S. and E.T. Dr. Wells observed that E.T. related to the child in a "gentle, patient, and loving manner." However, while the child treated E.T. as a "comfortable and familiar adult," he did not relate to E.T. as a maternal figure. Dr. Wells concluded that D.S. would not suffer any irreparable and enduring harm if E.T.'s parental rights were terminated.
Dr. Wells also conducted a bonding evaluation of D.S. and his current caretaker, K.T., the wife of E.T.'s brother. Dr. Wells observed a mutual bond between D.S. and K.T. and found that D.S. related to K.T. as a maternal figure. She recommended that D.S. stay in that home and opined that D.S. would suffer irreparable harm if he were removed from it. Dr. Wells also explained that any child will experience regression when removed from a stable environment, but that this problem would be exacerbated in this situation due to D.S.'s special needs and the difficulty he has in adapting to changes.
Parental rights will be terminated when, by clear and convincing evidence, DYFS establishes that to do so is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008). In evaluating whether parental rights should be terminated under this standard, the courts apply the four-part test first enunciated in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986), and now codified in N.J.S.A. 30:4C-15.1(a). Under that test, the following four prongs must be proved by clear and convincing evidence in order 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) [DYFS] 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).]
These four prongs "are neither discreet nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
Our review of the trial court's decision is limited. N.J. Div. of Youth & Family Servs. v. E.P., supra, 196 N.J. at 104. We will not disturb the factual findings of the trial judge unless "'they are so wholly [u]nsupportable as to result in a denial of justice.'" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). Further, we accord deference to the fact-finding of the family court, recognizing its special expertise in this area. 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 & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), certif. denied, 190 N.J. 257 (2007).
We have considered the trial court's decision in light of these legal standards and conclude that the trial court's decision to terminate parental rights was supported by clear and convincing evidence in the record.
Despite her sincerity and love for this child, E.T. does not have sufficient mental health to be able to provide the stability and support this child requires. D.S. is now bonded with his current caretaker, and he would suffer irreparable and enduring harm if he were removed from his current home. The record supports the trial court's conclusion that the four prong test has been met and that termination of E.T.'s parental rights is in the best interests of this child.
E.T. argues that the adjudication was fundamentally unfair to her because the trial took place over a period of eleven months and because much of the evidence was dated and related to events that predated D.S.'s birth. She also contends that the trial judge's legal conclusions were "cursory."
We reject these arguments. The trial court articulately set forth its findings; its analysis of the four prongs must be considered within the framework of the court's detailed factual findings. The evidence regarding E.T.'s treatment of D.S.'s older sibling and other past conduct was admissible in this case. See N.J.S.A. 9:6-8.46(a) (providing that "abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child"); see also J. v. M., 157 N.J. Super. 478, 493 (App. Div.) (addressing parent's treatment of other children, and noting that a court may rely on past conduct when trying to predict future conduct), certif. denied, 77 N.J. 490 (1978). We acknowledge that the extensive breaks in this fourteen day trial that commenced on February 7, 2008, and continued intermittently, until summations on October 16, 2008, ran contrary to the provisions of Rule 5:3-6 which provides for continuous trials "[i]nsofar as practicable."
However, E.T. has not shown that she was prejudiced by these delays.