On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-184-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Lihotz and Ashrafi.
K.H. appeals from a June 4, 2008 Family Part judgment terminating her parental rights to M.H., her twelve-year-old autistic child, and awarding guardianship of M.H. to the Division of Youth and Family Services (DYFS or Division) for the purpose of securing the child's adoption. The Law Guardian supports termination of K.H.'s parental rights.
On appeal, K.H. presents these issues for our review:
I. K.H.'s PARENTAL RIGHTS SHOULD NOT HAVE BEEN TERMINATED BECAUSE DYFS FAILED TO ESTABLISH, BY CLEAR AND CONVINCING EVIDENCE, EACH OF THE FOUR PRONGS OF THE TERMINATION OF PARENTAL RIGHTS STATUTORY TEST.
A. BECAUSE HARM TO THE CHILD'S HEALTH WAS NOT SHOWN, DYFS FAILED TO ESTABLISH THAT PRONG ONE OF THE TEST WAS MET (NOT RAISED BELOW)
B. THE STATE DID NOT PROVE PRONG TWO OF THE STATUTE BECAUSE THE STATE DID NOT ESTABLISH THAT MOTHER WAS UNABLE TO REMEDY HER MENTAL ILLNESS OR THAT DELAY OF PERMANENT PLACEMENT WOULD ADD TO THE CHILD'S HARM.
C. THE STATE FAILED TO PROVIDE MOTHER WITH ANY SERVICES. THEREFORE, THE STATE FAILED TO SATISFY PRONG THREE OF THE STATUTE.
D. DYFS CANNOT SATISFY THE FOURTH PRONG OF THE STATUTE SINCE THEIR OWN MISCONDUCT UNFAIRLY IMPACTED THE BEST INTERESTS ANALYSIS (NOT RAISED BELOW).
After considering the record and briefs in light of the applicable law, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., Division of Youth and Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, 179 N.J. 264 (2004).
DYFS became involved with the family on January 16, 2006, when it received a referral after Newark Police Officer Zaghloul observed a fire in a seemingly abandoned building where K.H. and M.H. were living. K.H. had set fire to cloth to warm the apartment. Officer Zaghloul found M.H. covered by blankets lying in the bath tub, and described K.H. as "bipolar and incoherent." Defendant and M.H. were brought to the University of Medicine and Dentistry of New Jersey (UMDNJ) for examination, and DYFS was contacted.
K.H., who had a history of bi-polar disorder and schizophrenia, was admitted to UMDNJ's psychiatric unit for treatment. K.H. remained in the hospital for more than one week, where she was stabilized. Following examination, M.H. was discharged to DYFS's care. The Division described M.H. as "dirty, smelly and her hair was unke[m]pt." "[D]ue to inadequate shelter of the family and [K.H.'s] inability to parent due to her mental health issues," and because K.H. had no relatives who could care for M.H. while she received psychological care, the Division sought an order granting the emergency removal of the child, along with an order granting the Division care and custody. N.J.S.A. 9:6-8.29 to -8.31.
M.H.'s initial foster placement lasted only one night. The child was then taken to the New Jersey Regional Day School (NJ Regional), where she had been enrolled but absent since January 10, 2006. The familiarity of the school calmed M.H. A second placement attempt also proved unworkable due to M.H.'s behavior and needs. DYFS temporarily placed M.H. at the Woodbridge Child Diagnostics Treatment Center (Woodbridge Diagnostics).
On January 19, 2006, M.H. was taken for a medical check-up, where M.H. "became physically abusive to [hospital staff and the caseworker]," and ran across the street, without looking, into a convenience store where she stole a bag of potato chips. On January 20, 2006, M.H. was rejected by a third foster parent after she exhibited similar erratic behavior. DYFS returned M.H. to Woodbridge Diagnostics, where she spent the weekend. M.H. became aggressive, tried to push staff, and acted "as though she was going to bite them."
On January 23, 2006, M.H. was placed with R.F., an experienced caregiver for autistic children who was also serving as a foster parent for another autistic child. Aided by health care providers, she assisted in the children's daily living needs. M.H. remains in R.F.'s care, and R.F. has expressed a desire to adopt the child.
On January 26, 2006, K.H. attended a treatment planning meeting with DYFS. She was "lucid and coherent and spoke rationally of her concern for and separation from [M.H.]" and her desire "to be reunited" with her child. The Division's report noted, K.H. "should call [M.H.] as soon as she is able and . . . visiting [the child] should wait until after being discharged from the hospital and taking the necessary steps to assure that [K.H.'s] basic needs are met." K.H. was discharged in February 2006, and placed in a boarding house, where she remained throughout the litigation. K.H. attended a daily treatment program at UMDNJ from 9 a.m. to 3 p.m.
On February 7, 2006, Ronald Wei, M.D., evaluated K.H. K.H. first suffered a "breakdown" in 1989, resulting in hospitalization after jumping out a window. Dr. Wei learned K.H.'s mental illness had been controlled by medication for years. Unfortunately, K.H.'s treating psychiatrist moved around August 2005, and K.H. ceased her medication. Dr. Wei also noted K.H.'s symptoms of "paranoia, bizarre ideation, [and] feelings of persecution" worsened.
As of August 29, 2006, K.H. had not visited with M.H. because DYFS "ha[d] not been able to ascertain the full extent of [K.H.'s] psychiatric problems" and was "unable to determine the appropriate setting to [e]nsure a safe and secure location for visitation to occur between mother and child."
A review hearing was held on November 15, 2006. M.H. was progressing favorably, and the Division reported "there ha[s] been an overall improvement in  appearance and behavior." R.F. told DYFS "this is the best year [M.H.] has had since being at the school." The Division reported its goal for M.H. was "Long Term Specialized Care." K.H. requested visitation, which was granted upon receipt of "a favorable report from [K.H.'s] treating psychiatrist."
On January 30, 2007, Samiris Sostre, M.D., a psychiatrist, evaluated K.H. Dr. Sostre noted K.H. was alert and oriented to person, place and time, and her remote and recall memory were good, as was her concentration. However, K.H.'s insight into her current problems was reported as "only fair." With regard to K.H.'s mental health, Dr. Sostre concluded:
[K.H.] has a flat affect, concrete thinking, poor insight and difficulty picking up social clues. Her ability to relate to others is also limited. These are symptoms that are . . . unlikely to improve with time or more treatment. [K.H.] does not represent a danger to herself or others.
With regard to custody and visitation, Dr. Sostre concluded K.H. would not "be able to handle the demands a disabled child presents in terms of continuous care taking" but should be able to visit the child "with no problem." Supervised visitation between K.H. and M.H. commenced on May 23, 2007, and continued bi-weekly thereafter. With the exception of two unexplained absences, K.H. attended all visits.
Dr. Sostre reevaluated K.H. in September 2007. His findings with respect to K.H.'s mental health had not changed. Dr. Sostre noted K.H. "appear[ed] more informed . . . about [M.H.'s] disability and limitations[;]" nevertheless, Dr. Sostre ...