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New Jersey Division of Youth and Family Services v. L.A.


December 3, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-0056-07.

Per curiam.



Submitted October 27, 2009

Before Judges Grall, Messano and LeWinn.

L.A. and A.A. appeal separately from orders terminating their respective parental rights to their three children, N.A., Z.A. and J.A. The appeals were consolidated by this court.

The children's Law Guardian and the Division of Youth and Family Services (Division) contend that grounds for termination are established by clear and convincing evidence under each of the four prongs of the best interests standard provided in N.J.S.A. 30:4C-15.1a. Review of the record and the arguments presented leads us to conclude that there is no ground on which we may disturb Judge Schlosser's factual findings or legal conclusions. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Accordingly, we affirm.

L.A. came to the attention of the Division in 1995 when she gave birth to her first child, R.M.*fn1 L.A. was twenty-eight years old at the time. R.M. was born prematurely and needed a caregiver capable of monitoring his condition and administering CPR. Voicing "grave concern" about L.A.'s ability to provide that care, hospital staff asked the Division to assess her parental capacity.

The concerns about parental capacity were based on the troubling behavior L.A. exhibited during her pregnancy and her medical history. Although L.A. received pre-natal care, throughout that course of treatment she questioned the doctor's diagnosis and doubted that she would give birth to a child. In addition, L.A.'s mother and aunt, based upon L.A.'s conduct with her family, expected she would need but refuse their help. In L.A.'s view, the strained relationship was the product of their tendency to interfere. As for L.A.'s medical history, she was hospitalized for psychiatric care in 1994. L.A. attributed her psychiatric hospitalization to depression she experienced after her grandmother's death.

Although the hospital staff and the Division did not have the records of L.A.'s 1994 hospitalization at that time, subsequent review disclosed that the precipitating event was an apparent suicide attempt involving ingestion of aspirin. L.A.'s diagnoses were delusional disorder and bipolar manic-depressive disorder. When released from that treatment in 1994, medication and follow-up care were prescribed, but L.A. stopped taking the medicine and did not seek treatment. L.A. also had a prior history of volatility and destructive behavior directed at property of which the Division was unaware when R.M. was born.

Within four days of R.M.'s birth, L.A.'s mother left her job to help L.A. care for R.M. and L.A. accepted that assistance as well as gifts of the furnishings and supplies she would need for the infant. Accordingly, the Division planned a course of short-term supervision. L.A. and her mother were trained to monitor R.M.'s condition and administer CPR; arrangements were made for counseling for L.A. and for a visiting nurse to assist in her home; and L.A. obtained medical coverage for R.M. After the services were in place and a nurse who visited L.A.'s home submitted a positive report, the Division closed the case. L.A. resumed her secretarial work, and her mother cared for R.M.

L.A. met A.A. after R.M. was born. A.A. came to the United States from his home in Egypt on a tourist visa in 1997; their relationship developed while A.A. was staying with a friend in the Trenton area who had an apartment in the same complex as L.A. A.A. also had a son born of his marriage to a woman from Egypt, but his child was in the mother's custody.*fn2

L.A. gave birth to A.A.'s daughter, N.A., in 1998. Again, the hospital staff contacted the Division. This time the concern was with L.A.'s apparent failure to bond with, care for and comfort N.A. A Division caseworker met A.A., L.A., L.A.'s mother and R.M. at the hospital. When asked about her prior psychiatric care in 1994 and her follow-up on recommendations for treatment, L.A. again attributed the hospitalization to depression following her grandmother's death. She admitted that she did not seek treatment after her discharge and had discontinued her medication because she thought it was affecting her ability to see.

The caseworker asked A.A. and L.A. to accept a plan for their family. Although L.A. "appeared to take a long time to take in [the caseworker's] request and understand [the] implications," she agreed that pending a psychological evaluation she would have someone with her and the baby at all times. Prior to the baby's discharge, L.A. was evaluated and "cleared" with no finding of psychosis or depression.

After L.A. and N.A. were discharged, a caseworker visited L.A.'s apartment. The report on that home visit was favorable. A.A. was present, and he explained that although he was working and living in New York, he called L.A. daily and stayed with his family when he could. In the caseworker's view: the apartment was "very clean" and "nicely furnished"; A.A. appeared to be attached to N.A. and have a good relationship with R.M.; and R.M., who sat on L.A.'s lap throughout the visit, appeared to be well-cared for and well-adjusted. The caseworker found L.A.'s affect to be "very slow" but noted that she "seems to know what she is doing."

The Division arranged for a visiting nurse to come to L.A.'s home. Within three weeks of N.A.'s birth, the case was closed. L.A. and A.A.'s second child, Z.A., was born in 1999.

Z.A.'s birth led to a third referral. This time hospital staff relayed information provided by a relative of L.A. who reported that her home was in a "deplorable condition, filthy, smelly [and had] no food or drink." L.A.'s explanation was that they had just purchased and moved to a house in Trenton, her dog had been having accidents and the house would be professionally cleaned. A.A., who was present, advised that he had found work in New Brunswick and was living at home with L.A. and the children. The Division contacted the children's pediatrician and was told that they were receiving appropriate medical care. Concluding that the allegation of neglect was unsubstantiated, the Division referred L.A. to a parenting program, "Parents as Teachers," and closed the file.

A.A. and L.A. married in 2000. In August 2001, a neighbor called the Division and alleged that L.A. was allowing her children to play outside without supervision and that N.A., then about two years old, had nearly missed being hit by a car. According to the neighbor, L.A. was usually outside with the children but just stared into space.

A caseworker met with L.A. and A.A. They confirmed that N.A. had gone into the street after a ball and acknowledged the need to exercise greater care. The caseworker concluded that L.A. appeared to be functioning normally and showed no sign of a "psychiatric problem." In the caseworker's view, the children seemed to be receiving proper care, and the house was messy but not filthy. Deeming it noteworthy that A.A. was living at home and would protect the children if necessary, the Division closed the case.

The fifth referral to the Division came on June 11, 2004. That referral was made because N.A. alleged that she was hit while in the care of the babysitter. L.A. retained the babysitter to care for her children when she worked in various temporary clerical positions that she obtained through an employment agency. Upon investigation, the Division found no evidence to substantiate the complaint of abuse but determined to keep the case open due to conditions in L.A. and A.A.'s home.

Specifically, the problematic conditions included a strong odor of pet urine, a missing stove door and exposed electrical wiring.

In late July 2004, L.A. gave birth to J.A. J.A.'s gestational age was between thirty-seven and thirty-nine weeks, but he was born in respiratory distress and in a limp, apneic and cyanotic condition. Consequently, he was placed in the Newborn Intensive Care Unit. L.A. acknowledged that she had not received pre-natal care, but she and A.A. both denied any awareness of her pregnancy. L.A. explained she had not had symptoms like those she experienced during her prior pregnancies and attributed the few symptoms she had to the long-lasting effect of a birth control medication she had taken until she had a negative reaction to an injection.

After J.A. was discharged from the hospital, the Division followed-up on his care. On August 20, 2004, a caseworker visited the home. N.A. had scratches and bruises on her extremities, which she blamed on Z.A. N.A. said Z.A. had done the same to R.M. R.M. and A.A. were not at home for that visit. R.M. was staying with L.A.'s mother, who had moved to a retirement community in another part of the State, and A.A. had been detained by immigration authorities two weeks before. Believing that J.A. was abnormally small for his age, the caseworker sought medical assistance. Later that day, J.A. was admitted to the hospital and diagnosed with failure to thrive. That condition was subsequently attributed to L.A.'s improper preparation of his baby formula, a mistake which she blamed on use of a new brand of formula.

Concluding that the circumstances warranted removal of the children for their protection, the Division took steps to place them. While L.A.'s mother was willing to keep R.M., she was unable to take in the other children because she was recovering from cancer treatments and living in a retirement community. Thus, foster care was needed. Z.A. and N.A. were placed in the same foster home. J.A. was hospitalized until early September 2004 and then placed with a foster family prepared to address the needs of medically fragile children.

The Division promptly acted to arrange visitation for L.A. While J.A. was hospitalized, L.A. visited, fed and changed him daily. Within a week of the removal, the Division had arranged for L.A. to see R.M., N.A. and Z.A. during visitation every other week.

The Division also took steps to identify and address the problems that led to the removal of the children. At the Division's request, L.A. was evaluated by a psychiatrist, Dr. Alexander Iofin, and a psychologist, Dr. Alan S. Gordon. The process started with an interview done by Dr. Iofin on October 12, 2004. The doctors' reports were concluded by late November 2004.

Dr. Gordon reviewed the discharge summary of L.A.'s 1994 hospitalization for treatment of a "delusional disorder" and the psychological evaluation done after R.M.'s birth. He also administered psychological tests and assessed L.A.'s intellectual functioning. In Dr. Gordon's opinion, L.A. had "emotional problems of longstanding duration" and indications of bipolar disorder, for which she had been prescribed medication that she had discontinued, and her intellectual functioning was in the borderline and low-average range. In Dr. Gordon's opinion, there was reason to question whether L.A. could care for and protect her four children. He recommended several things that should be accomplished before returning the children gradually to L.A.'s care: treatment by a psychiatrist, perhaps accompanied by medication; psychotherapy; parenting skill classes; and confirmation that the home was in a safe condition.

Dr. Iofin's preliminary diagnoses of L.A.'s condition were bipolar disorder, not otherwise specified (NOS) versus depressive disorder, NOS; provisional delusional disorder versus psychotic disorder, NOS; and borderline intellectual functioning. In his opinion there was a need to clarify the "severity of the current psychiatric pathology," which should be done through "ongoing follow up with a mental health clinic... for a period of at least six months" by a "treating mental health team" with access to her complete records and ability to utilize psychotropic medications if necessary.

The Division acted on these recommendations. Between November 2004 and July 2005, L.A. was seen twice a week by a psychoanalyst, Dr. Lisac. During that period she also saw a therapist and a professional counselor.

On Dr. Maria Elena Lisac's recommendation, unsupervised weekend visitation with all four children in L.A.'s home commenced in April 2005. A caseworker involved in bringing the children to L.A. noted detrimental conditions of the sort observed in the past - foul odor and exposed wires - and a new problem - cockroaches. During the first weekend visitation, L.A. took the children to see A.A., who was still confined in a detention center in New Jersey. At the end of that weekend, L.A. returned the children wearing dirty clothes.

The in-home unsupervised visitations were stopped at the end of June 2005 after a series of problems were reported by the children's caregivers. J.A., the youngest of the children, developed diaper rash and had bruises on his extremities and stomach caused by pinching. After one visit, J.A. was taken to the hospital for treatment of diarrhea and vomiting. According to L.A.'s mother, who was still caring for R.M. and present during some of the visits, her daughter was not supervising the children and seemed to be in another world and unaware of what they were doing. When J.A. cried, L.A. just put him on the floor. By May 2005, the foster mother who had cared for N.A. and Z.A. since August 2004 found N.A.'s behavior so disruptive, especially after visitations, that she asked the Division to remove N.A. from her home. Although L.A. had been informed that J.A. was allergic to milk products, she gave him food with that ingredient. L.A. had various explanations for the mistake - forgetting, failing to read the label and confusion about whipped cream being a milk product. After June 2005, visitations were supervised and took place outside L.A.'s home.

By the end of July 2005, N.A. had adjusted in a new foster home, her second since her removal from the family caring for Z.A. in May. Z.A. remained in his initial placement, and J.A., who had been moved from the special care home to a foster home, was reportedly doing well.

In August 2005, the Division arranged different treatment for L.A. Through an organization known as "Counseling, Education & Family Dynamics," L.A. attended weekly group sessions and individual sessions with Dr. Blanche LeVere, a clinical psychologist.

In September 2005, the Division arranged for supervised visitation in L.A.'s home with all of her children and also provided counseling for Z.A. The counseling for Z.A. was provided for two reasons - suspicion that Z.A. was pinching his siblings and his foster mother's belief that Z.A. needed help in addressing "placement issues." Z.A.'s foster mother was worried by Z.A.'s behavior after visitations and because he was saying he liked his mother but did not want to live with her. Reports of Z.A.'s counselors covering a period commencing in September 2005 and ending in April 2008 describe the child's increasing concern about leaving his foster family and returning to his mother or his father.

The caseworkers and professionals who observed the visitations between September 2005 and February 2006 disclosed not only occasional and modest progress but also frequent incidents indicative of L.A.'s inability to care for and protect her four children. The anecdotes illustrate: lack of essentials such as diapers; inability to supervise the children without assistance; hazardous conditions such as light switches without plates; failure to supervise children playing outside; and feeding J.A. food that contained milk products.

The supervised home visitations were discontinued after J.A. had an allergic reaction to food in February 2006. Thereafter, regular visitations were supervised elsewhere. The reports of those visitations demonstrate no improvement.

In May 2006, Dr. LeVere concluded that L.A. suffered from problems "beyond [her] scope of treatment." The doctor noted that over the course of treatment L.A. had become "more unreasonable, irrational, explosive, blame shifting, complaining, excuse making, unreasonable, critical and paranoid." Reports of the various individual and group sessions L.A. attended describe behavior and statements that provide the foundation for Dr. LeVere's opinion.

Psychological and psychiatric evaluations of L.A. conducted between Fall 2004 and Spring 2008 also reflect deterioration in L.A.'s condition. Bonding evaluations completed between 2005 and 2008 demonstrate the impact of L.A.'s condition upon her relationship with the children.

Dr. Jamie Gordon-Karp, who evaluated L.A. in July 2005, detected a strong and foul body odor and noted that L.A. seemed unaware that her blouse was open so as to expose her chest and stomach. In the doctor's opinion, L.A. had no insight into her role in her present difficulties. During a bonding evaluation that was conducted by Dr. Gordon-Karp in March 2006 and involved L.A., the children and the foster parents, the doctor found that the minimal progress L.A. had made was not sufficient to permit the return of her children. In Dr. Gordon-Karp's opinion, the children did not want to be in L.A.'s care and were in need of the permanency that was available to them in their separate foster homes where their needs were being met.

In April 2006, the Division held a meeting with the children's foster parents. L.A.'s mother agreed to become R.M.'s kinship legal guardian. The foster parents all said they would adopt the child in their care.

Other psychologists who evaluated L.A. agreed that she was not capable of caring for her children independently. Dr. Amy Becker-Mattes reached that conclusion after conducting an evaluation in July 2006. And, after evaluating L.A. and assessing the children's bonds with her and their respective foster parents in November 2006 and February 2008, Dr. Natalie M. Barone recommended termination of L.A.'s parental rights. The following are among the facts Dr. Barone found to militate in favor of termination. L.A. was disheveled and expressionless, her thought process was tangential and illogical, and her judgment and insight poor. At times, the doctor was concerned that L.A. would become flagrantly psychotic. During the first bonding evaluation, L.A. lapsed into a dissociative state and stared into space for about ten minutes despite the fact that the children were trying to get her attention. During the second evaluation, L.A. again slipped into a state in which she seemed wholly unaware of her surroundings and sat eating the french fries she had brought for her children. Dr. Barone reported that by 2008, the children largely ignored L.A. and there was "utter chaos" when they were in the room with her. The children's behavior was markedly different, however, when they were with their respective foster parents.

In Dr. Barone's opinion, each child had developed a healthy attachment with his or her foster parents, but none of the children had a strong bond with L.A. She concluded that each child would suffer serious and enduring harm if removed from the care of the foster parents with whom they had a positive bond. The harm Dr. Barone deemed likely to follow reunification with L.A. and separation from the foster homes was impairment of the children's personality structures, regression and life-long difficulty in trusting and forming attachments with others.

By May 2008, Dr. Iofin, the psychiatrist who first evaluated L.A. in November 2004, was of the opinion that L.A. would "not be capable to be a minimally adequate parent for her three children in question [then] or in the foreseeable future."

Dr. Iofin's report is based upon his interviews with L.A. over the years and informed by a critical and comprehensive review of the Division's records, L.A.'s evaluations, test results and treatment notes, including statements reportedly made by L.A. to the various professionals and caseworkers. His report, which accounts for information available from the early 1990s forward, includes his opinion of the etiology and nature of L.A.'s complex and deteriorating condition and her prospects for achieving parental competency.

Because A.A. was deported from the United States to Egypt on July 17, 2005, the Division did not offer him services. L.A. continually anticipated his return, but that process was apparently complicated by questions about the status of his prior marriage in Egypt that raised additional questions about the validity of his marriage to L.A.

In June 2006, a Division case manager reached A.A. in Egypt. Although A.A. advised that his visa had been approved and he intended to return, he could not provide a date of anticipated return. A.A. had relatives in the United States but could not offer any as potential caregivers for his children. He suggested the children move to Egypt. Following up on that suggestion, the Division contacted International Social Services (ISS). ISS provided a brief report indicating nothing beyond A.A.'s age, that he was employed and had an apartment but planned to return to the United States. In July 2008, ISS agreed to provide a more comprehensive report, but that had not been done by the end of the trial on November 13, 2008.

A.A. testified at the trial via computer link between Egypt and the courtroom. He acknowledged that he had not initiated any contact with the Division or his children since his deportation. He had seen his children only when L.A. took them to the detention center before his deportation and spoke to them by phone only when she called during visitation.

A.A. knew nothing about his children's condition or their progress in school. He explained that L.A. took care of that. While he denied any awareness of L.A.'s mental health problems, he also said he was afraid to ask about his family out of fear he would learn something he did not want to hear. When asked about assuming custody in Egypt, A.A. explained he wanted to be with his family and expected L.A. to come with the children. He did not say he was willing to assume that responsibility without L.A.

Douglas Grannan, Esq., A.A.'s immigration attorney, testified that he was still working to have A.A. return to the United States. According to Mr. Grannan, although L.A.'s petition was granted in 2007, despite his numerous inquiries, it had not been forwarded to the National Visa Center by the United States Citizenship and Immigration Services. Mr. Grannan did not expect A.A. to return to this country for at least another five or six more months.

L.A. also testified at trial. She continued to believe she was able to parent all of her children and that it was in their best interest to live together as a family with her. Moreover, she believed she could provide a safe and secure environment for her children even if A.A. could not return to the United States. Although L.A. had obtained an expert evaluation of her own, she did not have that expert testify or seek to introduce the expert's report.

On November 13, 2008, the Honorable Marvin E. Schlosser, J.S.C. rendered an oral decision setting forth his factual findings and stating his reasons for concluding the Division produced clear and convincing evidence establishing that termination of A.A.'s and L.A.'s parental rights is in the best interests of N.A., Z.A. and J.A.

With respect to A.A., Judge Schlosser recognized that A.A. was deported because he voluntarily overstayed his visa, but the judge's decision to terminate A.A.'s parental rights was not based upon the "abandonment" standard set forth in N.J.S.A. 30:4C-15(d) and discussed in In re Guardianship of D.M.H., 161 N.J. 365, 376 (1999) and In re Adoption of Children by L.A.S., 134 N.J. 127, 134-35 (1993). Rather, Judge Schlosser focused on A.A.'s neglect of the children after his deportation. He found that A.A. had not supported his family financially or done what he could to nurture them by maintaining contact with them and keeping apprised of their condition, conduct which the judge found amounted to neglect. He further determined that A.A.'s children had been and would continue to be harmed if A.A.'s rights were not terminated because there was no parent-child relationship between the father and the children. While the judge recognized that the Division had made no real effort to reunite A.A. and his children, he concluded that the Division's efforts were reasonable given that the barrier was an immigration problem beyond the Division's ability or responsibility to correct. Based upon the absence of any actual relationship between A.A. and his children for several years and the strong relationships the children had developed with their respective foster parents during their father's prolonged absence, the judge concluded that termination of A.A.'s parental rights would not do more harm than good.

With respect to L.A., Judge Schlosser concluded that her long-standing mental health issues had placed and would continue to place her children in danger. He further determined that despite the Division's reasonable efforts, which included years of therapeutic services and a variety of visitation arrangements, L.A. remained unable to care for and parent her children. Based upon L.A.'s diagnoses and dim prognosis, the judge concluded that additional delay in permanency would add to the harm they had suffered from the absence of her care and nurturing. In that regard, the judge noted that in the absence of L.A.'s care, the children had developed bonds with their respective foster parents, the severance of which would cause them serious and irreparable harm. Thus, Judge Schlosser determined that termination of L.A.'s parental rights would not do more harm than good.

N.J.S.A. 30:4C-15.1a sets forth, in four prongs, the elements the Division must establish by clear and convincing evidence in order to warrant termination of parental rights. These statutory standards strike a constitutionally permissible balance between the parents' right to have a relationship with their children, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982), and the State's responsibility to protect children from harm, In re Guardianship of J.C., 129 N.J. 1, 10 (1992). In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). The Division must show:

(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-15.1a.]

As the Supreme Court has explained, these statutory standards provide "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." D.M.H., supra, 161 N.J. at 375.

A trial court's determinations on these issues are entitled to deference. N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). When a judge has applied the standards and found them satisfied on the basis of facts that are supported by "adequate, substantial and credible evidence," we must uphold the findings. Id. at 279 (internal quotations omitted). If the record provides the requisite support for the factual findings, intervention by a reviewing court is warranted only if the determinations are based upon a misunderstanding of the law or the implications drawn from the facts found are "so wide of the mark that a mistake must have been made." Ibid. There is nothing that would justify our intervention under those standards in this case. Accordingly, we affirm substantially for the reasons stated by Judge Schlosser. We add only brief comments to address the arguments raised by A.A. and L.A. on appeal.

Both parents' contentions ignore well-established legal principles relevant to parental harm and termination of parental rights. With respect to harm, the inquiry is whether the parent has harmed or will continue to harm the child if the parent-child relationship is allowed to persist. N.J.S.A 30:4C-15.1a(1)-(2); In re Adoption of Children by G.P.B. Jr., 161 N.J. 396, 412 (1999). "Harm" includes "endangerment of the child's health and development resulting from the parental relationship," and "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. "[P]rolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm,'" is sufficient to meet the standard. N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (quoting J.C., supra, 129 N.J. at 18). In short, there is a point when "[k]eeping the child in limbo, hoping for some long term unification plan" that will permit even "morally blameless" parents to become available to care for their children is "a misapplication of the law." New Jersey Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

Judge Schlosser was clearly not wide of the mark in concluding that the end-point for efforts to reunify the family has been reached in this case. However blameless L.A. and A.A. may have been in bringing about the conditions, neither gave their children parental care or attention for a period in excess of four years and, fortunately, each of those children has developed a strong bond with foster parents who are willing and able to offer "the attention and concern of a caring family [that] is the most precious of all resources." D.M.H., supra, 161 N.J. at 379 (internal quotation omitted). Additional arguments to establish error lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

The orders of termination are affirmed.

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