February 9, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
M.R., DEFENDANT-APPELLANT, AND J.H., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF M.H., B.H., K.H., AND J.N.H., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, Docket No. FG-17-12-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Stern, Sabatino, and J. N. Harris.
After a four-day Title 30 guardianship trial, the Family Part terminated the parental rights of defendant-appellant M.R. and co-defendant J.H. to the three youngest of their four minor children. M.R., the mother of the children, now appeals the Family Part's decision. J.H. has not appealed. We affirm.
This case stems from ongoing involvement by the Division of Youth and Family Services ("the Division" or "DYFS") that intensified when defendant was pregnant with her first child in 1999, at the age of fifteen. At that time, defendant was living with her nineteen-year-old boyfriend, J.H., at the residence of J.H.'s mother.
Prior to defendant's first pregnancy, the Division had been involved with defendant's own mother, I.R., for a substantial part of defendant's childhood. In particular, the Division had investigated allegations--made by defendant herself--that I.R. was using cocaine, physically abusing her, and not providing her with food. The Division was unable, however, to substantiate these initial allegations about I.R., who continued to have custody of defendant throughout her pregnancy.
Defendant's first child, Mary,*fn1 was born in February 2000, when defendant was only fifteen years old. A year later, in February 2001, the Division filed a verified complaint against I.R. in the Family Part under Docket No. FN-17-45-01, seeking custody, care, and supervision of defendant and of Mary on the grounds of alleged abuse and neglect by I.R. The FN complaint stemmed from a referral to the Division reporting that defendant and Mary were living by themselves, without I.R., at a motel in Carney's Point.
One month later, the Division's complaint was amended to reflect ensuing events of March 21, 2001. On that date, defendant was detained by the police for fighting with another minor. At the time, defendant was four months pregnant with her second child. She was living with a female adult friend and with Mary at a different motel.
As a result of the amended FN complaint, Mary was placed in foster care by the Family Part on March 30, 2001. A week later, defendant was admitted to the Capable Adolescent Mothers Program, sponsored by Crossroads Programs, Inc. ("Crossroads"), in Mount Holly. This residential program provided her with a GED educational program and prenatal care. The program also offered defendant substance abuse treatment, after the staff there had discovered her smoking marijuana on the premises.
In May 2001, J.H. was arrested and incarcerated in Salem County. The following month, June 2001, defendant gave birth to Beth, her second child by J.H. Beth was initially allowed to reside with defendant at Crossroads. A month later, defendant secured full-time employment. Defendant and Beth continued to live at Crossroads and have occasional visits from Mary, who was then nearly two years old. J.H. remained incarcerated.
In January 2002, defendant and both of her daughters moved to the Union Industrial Home for Children ("Union Industrial") in Trenton, a facility that had been recommended by the Division. In March 2002, staff members at the home received complaints from other residents that defendant had struck both Mary and Beth as a method of discipline. Thereafter, in April 2002, staff at the home observed defendant yelling at Mary and threatening to hit her. When the staff members intervened, defendant reportedly told them that "she did not need [s]taff to tell her how to treat her child."
In July 2002, the Division received a call from Union Industrial notifying them that Mary "had bruises on her face." Defendant denied any knowledge of the origins of these bruises and the Division was never able to determine their source.
Defendant reached the age of majority in October 2002. Consequently, at a scheduled compliance review in the original FN docket on December 18, 2002, the Family Part terminated the Division's custody, care, and supervision of defendant, because she was no longer a minor. A new case was simultaneously opened under the same FN docket number, in which the court granted the Division custody, care, and supervision of Mary and Beth. Defendant remained housed, along with her two daughters, at Union Industrial.
Throughout her residence at Union Industrial, defendant attended school at New Jersey Youth Corps, seeking to attain a GED. For a portion of her residency there, defendant worked full-time, and she received positive performance ratings at her job.
In June 2003, the staff at Union Industrial wrote to the Division and reported deficiencies in defendant's parenting abilities. In that letter, the staff expressed concern "about the safety of [Mary] and [Beth] if left solely in [defendant's] care," and recommended that defendant "continue to receive support services upon discharge[.]" In particular, the letter noted that, in June 2003, staff had heard defendant yell, "[w]hen I get out of here [Union Industrial] I will be able to beat [Mary's] a** because you all won't be around to say anything." Additionally, the letter alluded to several instances when defendant had left both daughters awake and unsupervised in her room while she remained downstairs. Defendant also had disappeared along with her friends for nearly an hour while attending her school's prom. When she returned, defendant exhibited signs of intoxication and the staff at Union Industrial suspected that she had been using drugs.
On July 1, 2003, defendant and her daughters left Union Industrial and moved into independent housing. At some point prior to this relocation, J.H. was released from prison and he began again to visit with defendant and the daughters.
An order from the Family Part dated August 27, 2003 transferred custody of both Mary and Beth to defendant. Pursuant to that order, defendant was required to undergo in-home parenting skills training and daycare provided by the Division. Defendant thereafter participated in and completed the Parent Education Program from December 2003 through February 2004, during which time she was pregnant with her third child.
During a January 15, 2004 visit with defendant and the children, a Division caseworker learned that J.H. was then in drug rehabilitation. The rehabilitation had been ordered by the Criminal Part as a result of J.H. having violated his probation. J.H. also failed to appear at a court-ordered psychological examination and parenting assessment that had been scheduled in February 2004.
Meanwhile, defendant continued working, with Mary and Beth being cared for during the workday at First Step Daycare. Throughout this period, defendant was employed at a hotel in Pennsville, but she was usually home with her children by 4:00 p.m.
In March 2004, defendant gave birth to Kelly, her third child with J.H. Consequently, Kelly was added to the FN litigation. The court granted custody of the three children to defendant, while care and supervision of them remained with the Division.
In April 2004, the staff of First Step Daycare called the Division to complain about the girls' recent absence from the program. Another telephone call two weeks later alerted the Division that Mary's and Beth's participation in the program was at risk of termination because of their lack of attendance. The Division then received a letter from the New Jersey "Cares for Kids" Child Care Certificate Program, notifying the Division that Mary's and Beth's participation in the program had indeed terminated as of May 31, 2004.
On June 9, 2004, a Division caseworker visiting defendant's apartment found J.H. and his mother there, looking after the three children. J.H. informed the caseworker that "he was the one watching the children during the day."
By July 1, 2004, defendant had been discharged from her job at the Hampton Inn. On the same day, the Division caseworker visited the home, only to find five adults and a number of children at the apartment, none of whom were defendant or her own children. Later that day, the caseworker caught up with defendant and reminded her that J.H. was not permitted to watch the children unless he was supervised.
A visit by the caseworker a month later found defendant living in the apartment with all three children. According to defendant, her brother and J.H.'s sister were assisting her with the childcare. At the time, defendant was still unemployed and looking for work. At some point in July 2004, defendant obtained temporary employment at a motel in Hammonton, but she only worked there until mid-August 2004.
In August and September 2004, the Division attempted three times to schedule substance abuse evaluations for J.H, but he failed to attend for any of them. Additionally, the Division scheduled psychological evaluations for both defendant and J.H. in October 2004.
More problems arose in the latter part of 2004. Beginning on August 23, 2004, defendant rescheduled or failed to attend the Division caseworker's visits to her home on four separate occasions. In early September 2004, all three children were readmitted to First Steps Daycare. The Division's caseworker visited the daycare center on September 9, 2004, attempting to speak with defendant about rescheduling her visit to defendant's home, but defendant had already left after dropping off the children. The caseworker instead spoke with Mary and Beth, now four and three years old, respectively. The girls informed the caseworker that J.H. had been frequently present in the home and that their mother was pregnant again.
On September 15, 2004, the Division's caseworker finally succeeded in visiting defendant at her residence. Defendant falsely denied that she was pregnant. She told the caseworker that her job search was going well, and that she believed that she would be employed soon. The caseworker observed J.H.'s sister and brother in the home during the visit and noticed J.H. picking up his sister from the home at the end of the visit. The caseworker again warned defendant that leaving the children with unapproved adults could result in their removal.
On September 20, 2004, the Division received information that defendant had left the children alone with J.H., despite repeated warnings from the court and the Division not to do so. The Division also received reports of arrests and disorderly conduct on the part of both J.H. and defendant.
As a result of these events, the Division filed an amended complaint in the FN matter, this time naming M.R. in place of I.R. as the defendant. Upon considering the complaint, the court granted the Division custody of the children. All three children were removed from defendant's residence and placed by the Division in foster homes on September 21, 2004. Mary and Beth were placed in one home, while Kelly was placed in a different home. At the time of this removal, Mary was four years old, Beth was three years old, and Kelly was twenty-five weeks old.
On October 5, 2004, Roger T. Barr, Ed.D., a licensed psychologist, performed a court-ordered psychological examination of defendant. Dr. Barr found that defendant exhibited "a pattern of personality functioning characterized [by the] need for excitement, involvement in short-term and immediate endeavors[,] and an over-exaggerated sense of self-worth." Dr. Barr also noted that "since [defendant] places her needs in priority to others, and does not adequately understand the implications of her conduct, the emotional and physical safety of the children become[s] compromised." He recommended that defendant undergo structured therapy and interventions from Family Preservation Services. In sum, Dr. Barr concluded that "the results of this [p]sychological [e]valuation do not support reunification [of defendant] with her children at this time. Return of the children is predicated upon her changes in therapy."
Over the next two months, defendant had semi-weekly visits arranged with her three children. Several times defendant failed to appear at the scheduled visitation hours, despite the caseworker being present at the Division's office with the children ready to see their mother. On October 7, 2004, the Division caseworker called the apartment manager at defendant's residence, who informed her that the defendant "has been partying non-stop since Thursday [September 30, 2004]." The manager indicated that he was considering "eviction or taking legal action for disturbing [the] rest of the neighbors."
On December 7, 2004, defendant attended a substance abuse assessment. During that assessment, defendant claimed to have only once drank a beer at the age of eighteen and to have smoked marijuana only twice, when she was fifteen. Although the assessment did not find that defendant met the criteria for substance abuse or dependence based on her self-reporting, it did find that she had "been less than truthful in her reporting as indicated by collateral information from caseworker and police reports." The assessment noted that defendant, despite her contrary protestation, "has a history of substance abuse" and had been arrested on at least one occasion for disorderly conduct and defiant trespassing. The report also indicated that defendant, who was below the legal drinking age at the time of the assessment, had been seen at a local bar, at which she had an encounter with a law enforcement officer.
Consequently, the substance abuse assessment recommended that defendant participate in "Level I outpatient treatment, along with AA/NA meetings." Defendant was thereafter scheduled to attend the daytime substance abuse treatment program at Maryville in Salem County for one-hour weekly group sessions.
The day after the substance abuse assessment, the Division caseworker called defendant's apartment manager again and inquired about her status. The apartment manager asserted that there had been no change since October, and that the "[s]ame crew of about twelve people comes b[y] each weekend."
A week later, on December 15, 2004, the Family Part held a fact-finding hearing in the FN litigation. Neither defendant nor J.H. appeared.*fn2 At that hearing, based on the testimony of a Division supervisor, the court found, by a preponderance of evidence, that: on September 20, 2004, the Division received information that both [defendant] and [J.H.] were arrested in June of 2004 and September 6, 2004 for trespassing and disorderly conduct involving disagreements between the parties and or behavior by [defendant] interfering with the arrest of [J.H.] and the arrests were made in the vicinity of the complex in which [defendant] resided with the children, [and] the children expressed familiarity with the arrests[.]
The trial court found that defendant had permitted J.H. unsupervised contact with the children on numerous occasions in violation of court orders. The court determined that "such behavior would place the physical, mental[,] and emotional condition of the children to be in imminent danger of being impaired as a result of the parent or guardian failing to exercise a minimum degree of care as to both the mother and father."
In its order of December 15, 2004, the Family Part continued legal custody, care, and supervision of all three children with the Division, and physical custody with their respective foster parents. The court further directed random urine screenings for both parents, as well as substance abuse treatment. Finally, the court ordered weekly supervised visitation for defendant and J.H. with their children, to be held at the Division's offices.
In April 2005, defendant began attending the weekly substance abuse treatment program at Maryville. As of June 9, 2005, she had attended that program regularly and had an initial anticipated discharge date in August 2005. However, on July 29, 2005, defendant's counselor at Maryville sent a letter informing the Division that defendant was not yet ready for discharge. She was due to finish treatment on September 23, 2005 if she were to regularly attend group meetings until then. Progress reports for July, August, September, and October 2005 from Maryville indicated that defendant's attendance at substance abuse sessions was sporadic. The reports indicated that she "feels that she has no problem. DYFS [according to defendant] is the problem." On October 28, 2005, defendant was administratively discharged from Maryville's program for lack of attendance.
Meanwhile, in July 2005, defendant gave birth to John, her fourth child. Once again, J.H. was the father. John had previously been added to the FN litigation, but the Division was not notified of his actual birth until six days later, when the caseworker made a field visit to defendant's home to speak to her about her non-attendance at Maryville.
When the caseworker arrived at the residence, she found defendant, J.H., and a program staff member who was there to facilitate defendant's weekly visits with the children. Also present were all three daughters and the newborn infant, John. The caseworker informed defendant and J.H. that John could be removed from their custody because neither parent had complied with their assigned substance abuse treatments. J.H. then became agitated and began to yell at the caseworker. The caseworker retreated from the home and called her supervisor. Her supervisor advised the caseworker to notify the Human Services Police, instructing that "the newborn baby must be removed due to non-compliance with services and the Division's suspicions that [J.H.] resides in the home."
That same day, John was removed from defendant's custody. He was initially placed in a different foster home than those in which his sisters had been placed.*fn3 Two days later, the Family Part entered an order to show cause for protective services with DYFS custody for John, establishing an August 3, 2005 return date for a hearing to determine his continuing custody, care, and supervision. On that return date, custody, care, and supervision of all four children was continued with the Division, with weekly supervised visitation permitted for both defendant and J.H. Additionally, defendant was ordered to undergo individual sessions with Cheryl C. Pride, LCSW, a professional counselor. A permanency hearing in the FN litigation was scheduled.
Following the ensuing permanency hearing, the Family Part entered an order on September 30, 2005. The order stated that "[i]t is not and will not be safe to return the child[ren] home in the foreseeable future because [J.H.] and [defendant] have not completed services offered to correct the problem that warranted removal." Additionally, the court found that "[t]ermination of [p]arental [r]ights followed by [a]doption is an appropriate plan because [of a] lack of [defendant's] court appearances and completion of services. [J.H.] has not completed any services. These children have been in placement for most of their lives."
The court further ordered that defendant "shall not allow any contact between [J.H.] and the children. Until [J.H.] participates [in] services, he cannot have contact with the children unless provided by the Division or Division provider." Additionally, the court ordered that Mary and Beth "be placed in a pre-adoptive . . . foster home according to the Division's regulations. The Division [shall] make every effort to keep the children together and will not separate them without a court order."
The Division filed its initial guardianship complaint in the present "FG" litigation on November 15, 2005. The complaint alleged that defendant had "failed to support or make a permanent plan for [Mary], [Beth,] and [Kelly] since [the time] they were placed in foster care on September 21, 2004." It also alleged that defendant had "failed to support or make a permanent plan for [John] since he was placed in foster care on July 12, 2005" and that "[defendant] has failed to complete drug and alcohol treatment."
J.H. was scheduled for substance abuse assessments in November and December 2005, but he failed to appear. On January 25, 2006, defendant herself underwent a second substance abuse assessment. The assessment noted that defendant had been working full-time for eight months at that point. Minimizing her prior drug and alcohol usage, as she had done at her first assessment, defendant reported that she had only had "one sip" of beer at the age of eighteen and had smoked marijuana only "once" when she was fifteen.
The report noted that defendant had been referred to and had completed the SODAT Adolescent [Drug Treatment] Program when she was eighteen years old. The report also stated that "[defendant] denies the use of any other substances past or present. [Defendant] was referred to Maryville outpatient treatment in 2005 but did not complete the program." The counselor recommended that defendant be referred "to SODAT for evening Level I outpatient treatment (which is two times per week). This will enable her to continue to work and depend on bus transportation."
At a status hearing two weeks later, the court ordered defendant to attend a psychological and bonding evaluation by Linda R. Jeffrey, Ph.D., an expert retained by the Division. The court further ordered defendant to participate in the recommended substance abuse treatment program. The same order again referred defendant to individual counseling with Cheryl Pride. The court also entered default against J.H.
At the next case management hearing on April 3, 2006, J.H. was present and had the default vacated against him. The court ordered defendant to comply with the SODAT treatment program and the recommendations from Pride. In its order issued that day, the court indicated that if defendant "complies with services[, then] the issue of increased visitation may be addressed at a later date[.]" The court warned both parents that if they did not appear in court that default would be entered against them and that their parental rights could be terminated. Finally, the court ordered Mary, the oldest child, to undergo individual counseling.
In addition to Dr. Jeffrey's forthcoming psychological evaluations of defendant and J.H, the court also ordered both parents to undergo a bonding evaluation with Dr. Jeffrey. The court further ordered psychological and bonding evaluations by a defense expert, as well as bonding evaluations with the children and their foster patents.
Defendant began treatment at SODAT in April 2006. She completed the program on September 20, 2006. Throughout that program, defendant presented clean monthly urine screens.
On May 17, 2005, defendant presented for a psychological evaluation by Dr. Jeffrey. The evaluation consumed four and a half hours. During the evaluation, defendant noted that she recently had been employed full-time at Wawa for an entire year, her longest continuous period of employment to date. As to her drug history, defendant told Dr. Jeffrey that she had never abused alcohol or drugs. She said she was attending SODAT because "D[YF]S wanted me to do it just to say I completed one so my kids can come back home."
In her ensuing written report, Dr. Jeffrey concluded that the children would likely be placed in harm's way if defendant were granted custody of them. Specifically, Dr. Jeffrey found:
[Defendant] generally minimized her problems and discounted the possible impact on her children of her own immature judgment and behavior. Significant concern is raised that she lacks [the] insight and understanding of her own limitations and lacks attunement to the needs of her children. For example, asked if any of her children has special physical or emotional problems, she indicated not that she knows of. [Mary], however, displays moderate to severe delays in receptive language development, and was recommended for audiological evaluation, learning evaluation[,] and speech therapy. Concerns were raised about basic care of the children, including immunization. [Defendant's] general over-confidence in her [parenting] ability is not supported by her history of poor judgment, relationship instability[,] and exposure of her children to instability.
The results of this evaluation raise grave concern about the maturity, stability[,] and judgment of [defendant]. It is quite unclear to this evaluator that [defendant] would have the understanding, insight[,] and parenting capacity to care for the individual needs of her four children. It is highly likely that they would be placed at risk for harm in her care. This evaluator cannot recommend the placement of the children in [defendant's] care.
On the same day, Dr. Jeffrey conducted a psychological evaluation of J.H. During that examination, J.H. revealed that he had two children with two other women, in addition to the four children that he had fathered with defendant. J.H. reported that he had been incarcerated numerous times in 2002, 2003, and 2004 for, among other offenses, aggravated assault on a police officer, conspiracy involving the robbery of a college student at a motel, and violation of parole. At the time of the evaluation, J.H. was also in arrears for his child support.
Dr. Jeffrey noted that she had been provided with documentation reflecting that J.H. had fought an ongoing battle with substance abuse over the previous six years, despite his contrary assertions. As a result of her interview, Dr. Jeffrey determined that J.H., "is poorly prepared to provide a minimum level of safe parenting for his children. He has serious personality deficits that seriously decrease his parenting capacity. His children are at high risk for harm in his care."
A week later, Dr. Jeffrey conducted a bonding evaluation of both biological parents with three of the children, Mary, Beth, and John, who were then residing in the same foster home. During that evaluation, the three children had the opportunity to interact with both parents together and also with each parent separately. This sequence was followed because Dr. Jeffrey noted that "[J.H.] and [defendant] reportedly do not intend to live together since [J.H.] is living with another woman who is the mother of his son."
At the conclusion of the bonding evaluation, Dr. Jeffrey reported that:
[Mary] and [Beth] are insecurely attached to [defendant] and [J.H.] Severance of their relationships with their parents is likely to cause some harm. [John] appeared familiar with [defendant] and [J.H.] and related to them as friendly visitors. He did display a parental attachment to them. It is highly unlikely that severance of their relationship would cause him more than minor harm. This evaluator does not recommend the placement of the children with [defendant] and/or [J.H.]
A month later, on June 15, 2006, Dr. Jeffrey performed a bonding evaluation of defendant and J.H. with their other child, Kelly. In her report of that session, Dr. Jeffrey observed that, "[Kelly] appeared to be insecurely attached to [J.H.] and [defendant]. It is likely that there would be some harm if their parental rights were terminated. Concern is raised by their lack of parenting skill. This evaluator does not recommend the placement of [Kelly] with [J.H.] or [defendant]." (Emphasis added).
Five days after that parental bonding evaluation, Dr. Jeffrey performed a bonding evaluation with Kelly and her foster mother. After this session, Dr. Jeffrey concluded that:
[Kelly] is securely attached to her foster mother. Severance of their bond is highly likely to cause serious and enduring harm. Her foster mother is her psychological mother. If the Court were to decide to remove [Kelly] from her foster mother, it would be very important that she be placed with attuned, insightful, knowledgeable caretakers who would be able to help her deal with the distress she would be highly likely to experience if separated from the foster mother. This evaluator recommends that [Kelly] remain in the care of the foster mother.
Lastly, in August 2006, Dr. Jeffrey performed a bonding evaluation of Mary, Beth, and John with their own foster mother. After that evaluation, Dr. Jeffrey concluded that:
[John] is securely attached to the foster mother who serves as his psychological mother and his secure base. Separation from the foster mother is likely to cause serious and enduring harm. [Mary] and [Beth] have lived with the foster mother for about four months and have made a positive adjustment. Both girls called their foster mother, "Mom," indicated they liked living with her[,] and wanted to stay with her. [Mary] indicated she felt safer with the foster mother. Both girls also indicated their love for their birthparents.
The foster mother noted the importance of counseling in helping the children adjust emotionally and behaviorally. The Speech and Language Evaluation of [Mary] indicated her need for speech therapy. All three children need permanency and stability.
This evaluator recommends that [Mary], [Beth], and [John] remain with this foster mother. [(Emphasis added).]
That same month, Pride, the social worker with whom defendant had been ordered to attend counseling, reported to the Division that defendant's "attendance at the scheduled therapy sessions has improved recently." Pride further stated that:
[defendant] has wasted a great deal of time, before considering making a commitment to comply with services. She understands that her parental status is at risk. She is attempting to make changes, but this is not an easy pattern for her to change, and the children have been away from her for two years already.
On September 18, 2006, the first day of the originally-scheduled guardianship trial, the Family Part entered a permanency order and a case management order. The permanency order approved a plan for all four children to be reunited eventually with defendant. Recognizing at the time that "[defendant] needs more time to complete services," the court granted her six months to "complete counseling, in home parenting classes[,] and Family Ties and [Family Preservation Services]."
The case management order required defendant to attend additional psychological and bonding evaluations with Dr. Jeffrey. The court further directed that the current visitation schedule not change until defendant engaged in counseling, and that defendant "comply with Family Ties and Family Preservation Services." Defendant was also specifically ordered to have no further contact with J.H. Finally, the order dismissed the Division's guardianship complaint without prejudice and reopened FN-17-45-01.
Immediately prior to the entry of this order, Mary was removed from the foster home that she was then sharing with her sister Beth and their brother John. She was admitted to the "Mentor New Jersey" program and placed with a mentor family in Mount Laurel. The stated purpose of the mentor program was to eventually reunify Mary, then six years old, with defendant. Specifically, the program intake form noted that "[Mary's] Clinical Coordinator and [m]entor parent will assist with [this purpose] by providing [Mary] with therapy, structure, and support so that she is able to meet her treatment goals." Although she received favorable progress reports from her mentor parent, Mary continued in this program up through the time of the ensuing guardianship trial, and she did not cohabitate with defendant.
Over the next five months, visitation between defendant and her children took place without any reported adverse incidents. In January 2007, the Division's caseworker noted that Mary's new foster parent had observed that Mary would cry after returning from visits with her family. Mary appeared to be upset that she was not home with her mother. Observations of the other three children, however, did not reveal any similar reactions.
On February 6, 2007, while in court at a compliance hearing, defendant was arrested by the sheriff on a warrant for failure to pay child support. At that time, the Family Part requested a report from Dr. Jeffrey as to her psychological evaluation of defendant.
Defendant spent four days in jail from the child support warrant. She acknowledged that she knew that she was required to send $100 a week to the Division to pay for the care of her children. Beginning on February 28, 2007, defendant continued her visits with her children, facilitated by the Robins Nest Family Ties program. She participated in the full course of visitation sessions through August 24, 2007.
In the interim, Dr. Jeffrey performed a second psychological examination on defendant on March 5, 2007. In this second examination, Dr. Jeffrey noted defendant's limited level of academic achievement and her troublesome scores on personality tests. Dr. Jeffrey concluded that "[defendant] has continuing emotional and personality problems that significantly decrease her parenting capacity. This evaluator does not recommend the placement of the children with [defendant]. They are likely to be at a high risk for harm in her care."
At the same session, Dr. Jeffrey conducted an updated bonding evaluation between defendant and all of her children. In that bonding evaluation, Dr. Jeffrey observed that "[defendant] failed to display basic skill in child management that would be expected even of a teen-aged babysitter." She concluded that "[Mary] and [Beth] displayed insecure attachment to [defendant]. [John] and [Kelly] interacted with [defendant] as a familiar visitor." In sum, Dr. Jeffrey did not recommend the placement of the children in defendant's care. She opined that defendant "is not prepared to provide a minimum level of safe care for the children."
The next day, Dr. Jeffrey conducted an updated bonding evaluation with Beth and John, along with their foster mother. After that evaluation, Dr. Jeffrey concluded that:
[John] is securely attached to the foster mother. Severance of their secure bond is likely to cause him serious and enduring harm. If he is removed from the foster mother, it is important that he be placed with an individual who is emotionally mature and psychologically attuned and skillful with children. [Beth] displayed attachment to her foster mother, but by the report of the foster mother is having ambivalent feelings about where she would like to live. She appears to be torn between staying in her foster home and returning to live with [defendant]. She is significantly in need of ongoing counseling to deal with her emotional issues. This evaluator recommends that both children remain with the foster mother.
A month later, Dr. Jeffrey conducted a similar updated bonding evaluation between Kelly and her foster mother. After that evaluation, Dr. Jeffrey concluded that, "[Kelly] is securely attached to the foster mother. Severance of their relationship is likely to cause [Kelly] serious and enduring harm. The foster mother is her psychological mother."
Meanwhile, defendant continued to participate in her court-ordered counseling sessions with Pride. From January through June of 2007, the reports from Pride noted improvement in defendant's motivation and development of her parenting skills.
Both Mary and Kelly underwent psychological evaluations in May and June 2007, respectively. Mary's evaluation was conducted by Jennifer Kelly, Ph.D. Dr. Kelly perceived that Mary's "numerous failed [foster] placements" were "due to her aggressive behaviors." Dr. Kelly noted, in particular, that Mary had "poor control of her anger and depression" and had reportedly inappropriately touched the "private areas" of others at her therapeutic home. However, Dr. Kelly also noted that staff at the home had described Mary as "loving and frequently seeking physical contact, connection, and reassurance."
The concurrent psychological evaluation by Ronald S. Gruen, Ed.D., described the parties' third child, Kelly, as "charming and sweet" and "basically a normal three-year-old, developmentally and intellectually." Dr. Gruen attributed Kelly's aberrant behavior in "acting out" as "a manifestation of extreme anxiety and an effort to control her environment." He opined that Kelly, who had lived in the same foster home since she was five-and-one-half months old, is "psychologically bonded" to her foster mother, and that "it is highly unlikely that she can be reunited with her birth mother." Dr. Gruen recommended that the Division consider terminating defendant's parental rights. He anticipated that Kelly's acting-out episodes "will rapidly extinguish once [her] visits with the birth mother are curtailed."
The Family Part entered a permanency order on August 7, 2007, finding that "the parents have been unable to correct the circumstances which led to the removal of the children at this time. The court therefore approved the Division's plan for "concurrent planning of reunification and termination of parental rights," and ordered the Division to file a guardianship complaint within sixty days.
Subsequently, Division caseworker Lisa Puhala, an adoption specialist, was assigned to defendant's case. Three weeks later, the Division filed its second guardianship complaint, this time under Docket No. FG-17-12-08.
The court set the guardianship matter down for trial in August 2008 and ordered new evaluations. In the meantime, Beth was removed from the foster home that she had been sharing with her brother, John. The removal occurred at the request of her foster mother because of claims that Beth had disrupted the household. Consequently, Beth was returned to the foster home that she had lived in from October 2005 through April 2006.
These same foster parents expressed a desire to adopt both Beth and Mary, the latter of whom was not in their custody.*fn4
They also expressed some interest in adopting Kelly, who also was not in their custody. However, they did not request to adopt John, whose current foster parents had already expressed a desire to adopt him. Subsequently, Kelly's own foster parents expressed a desire to adopt her.
The guardianship trial commenced on August 4, 2008. Due to scheduling conflicts, the defense expert, Dr. David Bogacki, Ph.D., testified first. His expert qualifications were stipulated to by both the Division's counsel and the children's Law Guardian.
Prior to trial, Dr. Bogacki had performed a psychological evaluation of defendant, as well as bonding evaluation of defendant with her children in June 2008. The personal history upon which he based most of his opinions was provided in an interview with defendant. During that interview, Dr. Bogacki advised defendant that he had no method of checking the accuracy of her statements. Dr. Bogacki acknowledged during his testimony that he had not read the reports of Dr. Jeffrey, nor of defendant's counselor, Pride.
Based on his psychological testing, Dr. Bogacki diagnosed defendant with "histrionic personality disorder with compulsive traits" and also with "learning disorder." Dr. Bogacki opined that such a diagnosis should not prevent defendant from regaining custody of her children, characterizing the disorders as not "severe." Dr. Bogacki's bonding evaluation did not reveal problematic behaviors or tendencies in defendant's interactions with her children. He opined that the two older children, Mary and Beth, have "a secure emotional attachment" with defendant, and that the two younger children, Kelly and John, had lesser attachments to her. He acknowledged that, two years before trial, defendant had not been competent to parent the children, but he felt that she had progressed sufficiently to now be regarded as competent.
The Division's own expert at trial, Joanne Schroeder, Ph.D., a clinical psychologist, presented a contrasting perspective. Dr. Schroeder, whose expert qualifications were also stipulated by the parties, conducted a psychological review of defendant in February 2008. She also performed a bonding evaluation of defendant with all four children in April 2008. In addition, Dr. Schroeder performed individual bonding evaluations of Beth, Kelly, and John with their respective foster parents.
Prior to her evaluations, Dr. Schroeder extensively reviewed documentation and reports relating to defendant. Based on that review, her own direct observations of defendant interacting with her children, and her interview with defendant, Dr. Schroeder reached the following pertinent conclusions. The conclusions were markedly more pessimistic than those of Dr. Bogacki:
In summary, [defendant] would be a weak parent. She is enthusiastic and affectionate towards her children, but her judgment towards her children has continued to show problems (missing visits, using ineffective discipline during the bonding evaluation, suggesting her mother as parenting support). She showed a lack of attention towards her children's individual emotional needs during the bonding evaluation. If she is reunited with the children and continues her job, she would need parenting support (backup care, baby-sitting), but she suggests using her mother (who has a history of DYFS involvement herself) as a support in that case. [Defendant] is willing to help mitigate the harm that would likely ensue from disrupting the three younger children's attachments to their foster parents, but does not demonstrate the emotional empathy to help them do so. She proposes counseling to help her deal with the breaking of the child's attachments to their current caregivers, but has problems attending counseling herself. These problems are unlikely to be corrected with an additional six months of services, even if [defendant] were maximally involved. [(Emphasis added).]
Dr. Schroeder testified that defendant had "responded defensively" during her psychological testing, to a point that she was "minimizing problems." Dr. Schroeder found this reaction particularly relevant because "minimization of problems means that you can't grapple with them, that you can't deal with them, because you're underestimating their importance."
As for her bonding evaluations of defendant and the children, Dr. Schroeder testified that none of the children had secure attachments to defendant. According to her testimony, the older daughters "obviously knew who [defendant] was, and that she was someone who they saw as a family member." The expert perceived that Kelly "just didn't appear to have much relationship with [defendant.]" John, meanwhile, "appeared comfortable and happy with her, but there wasn't the indication of the attachment behavior, . . . the approach upon greeting . . ., the give and take of the safety provision relationship."
Conversely, Dr. Schroeder found secure attachments existed between all three of the youngest children and their respective foster parents. She testified that all three children would suffer serious and enduring harm if they were separated from their foster parents.
Dr. Schroeder further testified that her review of Pride's reports reflected defendant's lack of consistency in complying with court-ordered counseling. Dr. Schroeder noted that the reports reflected "a lack of appreciation of the seriousness of her need to engage in this counseling, if she's going to be an effective parent."
Although severing the bonds of the younger three children with defendant could cause some harm, Dr. Schroeder opined that it would not approach the greater harm that would be caused by breaking the children's bonds with their foster families or by leaving the status quo in place. Dr. Schroeder expressed some concern with breaking the bond between Mary and defendant because, without a secure attachment for Mary to a foster family, there might not be any way to mitigate the harm caused by such a separation. Even so, Dr. Schroeder recommended that Mary not be reunited with defendant at the present time, due to her negative view of defendant's "ability to effectively parent."
Puhala, the Division's caseworker for these children as of the time of trial, summarized in her testimony the key items reflected in the Division's case files, including interviews with defendant and various service providers. Puhala noted that defendant was presently living in a one-bedroom apartment in Carney's Point. Puhala expressed concern about defendant's past drug usage and her history with the children's father, J.H. In particular, Puhala noted that defendant had tested positive for phencyclidine ("PCP") in February 2007, and that J.H. also had tested positive for PCP. Puhala acknowledged that defendant had otherwise provided clean drug screens, but she expressed concern that defendant's participations in substance abuse evaluations and counseling had been "sporadic." Puhala noted that J.H. had recently telephoned defendant in violation of "no-contact" orders of the court. She conceded, however, that there was no evidence of any recent face-to-face contact between the two.
Defendant testified on her own behalf. She asserted that she had complied with all services that the Division had required of her. When asked about the termination from her counseling sessions with Pride, defendant stated that the counselor "was doing a lot of call-outs, too, like rescheduling." Defendant blamed missed appointments on Pride's secretary, alleging that the secretary would not relay the rescheduling information to Pride and that the secretary would schedule other patients into the available time slots.
Defendant claimed that she was looking for a house to live in with her children. She contended that she was also in a position at her work place to adjust her hours to allow for her to care for her children. Defendant suggested that her brother's pregnant girlfriend and her own stepfather would be able to assist her in child care while she was working.
Following the parties' filing of written summations, the trial judge, Judge Benjamin Telsey, issued his decision on December 27, 2008. Judge Telsey concluded that the Division had met its burden of proving, by clear and convincing evidence, the four criteria for termination of defendant's parental rights as to her three youngest children (Beth, Kelly, and John). However, the judge ruled that termination was not appropriate as to the oldest child (Mary). The judge did terminate the parental rights of the children's father, J.H., who had defaulted and who did not participate in the trial.
In his forty-two-page written opinion containing his findings of fact and legal conclusions, Judge Telsey addressed at length each of the four statutory prongs required for termination under N.J.S.A. 30:4C-15.1a. The judge also made critical findings of credibility that supported his analysis.
As to the first prong concerning parental endangerment to the children, the judge substantially accepted the opinions of the Division's expert, Dr. Schroeder. The judge found Dr. Schroeder's testimony more credible than Dr. Bogacki's. The judge noted that "[t]he fact that Dr. Bogacki did not thoroughly and independently review the history of this case and simply relied upon his interview of [defendant] as well as his independent testing, poses great concern to this Court." This less-complete review, in the judge's estimation, created "weaknesses in his [Dr. Bogacki's] overall conclusions, if he did not consider relevant information and documentation." The judge faulted Dr. Bogacki for not reviewing Dr. Barr's initial psychological evaluation of defendant, Dr. Jeffrey's psychological evaluations, the recommendations by the Family Ties program, and Pride's treatment summaries, all of which underscored the defendant's need for additional therapy and treatment. Dr. Bogacki's failure to consider these informational sources led the judge to place "limited weight" on his overall opinions.
By contrast, the judge noted that Dr. Schroeder "reviewed twenty-five separate reports and documents[,] which are specifically enumerated in her report." This extensive review supported the judge's finding that "[defendant] suffers from certain psychological issues that could pose a risk of harm to the children, but that such psychological issues could potentially be alleviated in counseling/therapy." The judge recognized that "[a]t the commencement of her involvement with the Division, [defendant] was a child herself and unfortunately did not appropriately address these matters in a responsible fashion. Perhaps she has the ability to do so now."
The judge specifically found "by clear and convincing evidence that the safety, health[,] and development of [Beth], [Kelly,] and [John] would substantially be negatively affected if they were returned to [defendant] at the successful conclusion of her therapy." The judge determined that the separation from foster parents to which the three younger children had bonded would result in a harm too great to justify the separation.
As to the oldest child, Mary, the judge noted that she is not in a pre-adoptive home and that she has expressed a desire to return to live with defendant. The judge found that "[i]f [defendant] actively engaged in appropriate therapy, it is entirely possible that she could address the issues that could prevent risk to the children's health and development and [Mary] could be returned to her without any risk of breaking a secure attachment with her current caregiver."
The judge also addressed the damage that any relationship with J.H. could have on any of the children. The judge found, by clear and convincing evidence, that the Division had proven that J.H. was a danger to the children. Consequently, a resumed relationship of defendant with J.H. would also pose a danger to the children were all in her care.
Turning to the second prong, the judge focused on defendant's lack of participation in certain services offered by the Division. The judge noted substantial harm that could be caused to the younger children if they were to be separated from their foster parents. The judge acknowledged that defendant had taken steps to address her substance abuse issues. However, the judge noted his "concern as to whether [defendant] has adequately addressed general parenting issues." On this point, the judge alluded to various instances where service providers had expressed concerns about defendant's parenting abilities or had to intervene to assist the children. The judge found that "it is clear that [defendant] still needs additional therapy, and without it, the children remain at risk of harm."
The court again emphasized that the younger three children had securely bonded to their foster parents and that separation from them would cause them serious and enduring harm, which defendant would be unable to cure. In making this finding, the judge relied again more heavily on the expert opinions of Dr. Schroeder, and faulted Dr. Bogacki for the lack of depth of certain aspects of his analysis. Specifically, the judge noted that Dr. Bogacki did not interview the children, did not conduct bonding evaluations of the foster parents, and only reported the positive interactions between defendant and her children. Dr. Shcroeder, on the other hand, conducted interviews with the children, conducted bonding evaluations with both defendant and foster parents, and reported both positive and negative interactions from all of the bonding sessions.
With respect to Mary, however, the judge agreed with Dr. Schroeder that substantial harm would result from her being severed from defendant as a caregiver. In sum, the judge found that the second factor was proven by clear and convincing evidence as to all three of the younger children, but not as to the oldest, Mary.
As to the third statutory prong--the provision of reasonable services to defendant--the judge enumerated various instances where the Division had worked to provide defendant and J.H. with proper services to help them to function as parents. The judge was satisfied that the Division had acted reasonably in this regard and had fulfilled its statutory duties to defendant.*fn5
Finally, addressing the fourth prong of the statute, the judge found that terminating defendant's parental rights will not do more harm than good in regard to the three youngest children. On the other hand, the judge concluded that such termination from her mother would do more harm than good to Mary.
The judge adopted the opinions of Dr. Schroeder as to the youngest children, and their close relationship to their respective foster parents. The judge noted that Dr. Schroeder was the only qualified expert to testify about the children's relationships with the foster parents. She found that the attachment of each of the three younger children to his or her foster parent was a secure one.
Conversely, the judge found that the relationship of the three younger children to defendant was insecure. The judge specifically found Dr. Bogacki's report of a secure attachment between Beth and defendant to be less credible than Dr. Schroeder's competing assessment that the attachment was insecure. The judge further noted that both experts agreed that the attachment of Kelly and John to defendant was insecure at best. In sum, the court found that severing the bond between the three youngest children and defendant would not do more harm than good.
Again, the judge perceived Mary to present a different situation. The judge noted that Mary "is not in a pre-adopt home and accordingly there is no indication that removal from her current placement would cause her any harm." The judge did recognize that defendant was working to make her life more amenable to raising children. In this vein, the judge observed:
[Mary] desperately wants to reunite with her mother, and if [defendant] can re-engage and benefit from therapy[,] this could and should happen. The [c]court is mindful that this case has been going on for years and that [Mary] is entitled to permanency.
However, this [c]court is not satisfied by clear and convincing evidence that termination of the parental rights of [defendant] to [Mary] will not do more harm than good.
In the order accompanying Judge Telsey's opinion, he terminated defendant's parental rights as to Beth, Kelly, and John. The FN docket was reopened to address defendant's prospective compliance with services that might enable her to reunify with Mary.
Defendant now appeals the termination of her rights as to Beth, Kelly, and John. The Division has not cross-appealed the trial court's denial of termination as to Mary. The Law Guardian urges, as does the Division, that we sustain the trial court's determinations, and afford the three youngest children the opportunity for adoption and permanency.
In her appeal, defendant contends that the trial judge erred in finding that the Division had proven the first, second, and fourth prongs of the termination statute.*fn6 Defendant claims that the trial judge relied too much in his analysis upon the fourth "best interests" factor. Apart from these substantive arguments, defendant contends that the trial judge's decision is procedurally flawed because (1) she was allegedly denied due process by the omission of fact-finding hearings in the "FN" litigation phase; and (2) the trial judge, the experts, and the testifying caseworker improperly relied on hearsay reports.
The applicable law is well settled. When seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1a, DYFS has the burden of establishing, by clear and convincing proof, that:
(1) The child's safety, health[,] or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;
(3) [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-15.1a. See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
We also fully appreciate that the termination of a parent's right to raise his or her child is a matter of constitutional magnitude. See In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); see also In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992).
The scope of our appellate review in cases of this nature is circumscribed. As the Supreme Court has reaffirmed, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). See also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (noting the need for deference to the factual findings of the trial court because that court had the opportunity to "make first-hand credibility judgments" and it also had a "'feel of the case' that can never be realized by a review of the cold record" (quoting M.M., supra, 189 N.J. at 293)). If there is substantial evidence in the record to support the trial court's findings, we generally should affirm them. See In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002).
Viewing the record as a whole through this limited prism of review, we are satisfied that the Division met its burden at trial respecting defendant's three youngest children. We reach that conclusion substantially for the cogent reasons expressed in Judge Telsey's comprehensive written opinion, which we need not repeat here.
We do wish to comment on defendant's contention that Judge Telsey was unduly swayed in his analysis by the fourth prong of the statutory test, by looking closely at the children's overall best interests. The fourth prong acts, in essence, as a firewall against termination. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). To be sure, we recognize that "showing that a child would be better off with an adoptive parent rather than with the biological parent is not enough" to satisfy the requisite burden of proof. In re Adoption of Children by G.P.B., 161 N.J. 396, 404 (1999).
Even so, the Supreme Court has instructed that "where it is shown that the bond with the foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy the requirement of N.J.S.A. 30:4C-15.1a(4), that termination of parental rights will not do more harm than good to the child." K.H.O., supra, 161 N.J. at 363. Additionally, the Court has observed that: prolonged inattention by natural parents that permits the development of disproportionately stronger ties between a child and foster parents may lead to a bonding relationship the severing of which would cause profound harm--a harm attributable to the natural parents and cognizable under the standards set forth in [the statute] [J.C., supra, 129 N.J. 18-19.]
There is substantial evidence in the present record, including Dr. Schroeder's trial testimony and the multiple expert reports that informed her analysis, to support the judge's findings that defendant has allowed the youngest three children's developmental well-being to be harmed through her years of inaction, inattention, and poor decision-making. There is also substantial evidence that such harm to the youngest children will not likely be eliminated by defendant and in severing attachments that Beth, Kelly, and John have now formed with their respective foster parents. The trial judge also had more than ample justifications, which he catalogued in his written decision, for finding the opinions of the State's trial expert, Dr. Schroeder, more persuasive than defendant's expert, Dr. Bogacki. "A trial court is free to accept or reject the testimony of either side's expert, and need not adopt the opinion of either expert in its entirety." Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002).
The two procedural arguments raised on appeal by defendant were not raised below. Although we do not need to address them, see Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973), we shall do so for sake of completeness.
First, we reject defendant's claims alleging wrongful deprivation of participation in certain fact-finding hearings in the FN litigation. We note that, significantly, defendant sought no appellate review of the determinations made in the FN matter, even on an interlocutory basis. Our courts have long noted that distinctions between "FN" abuse-and-neglect litigation under Title 9 and "FG" guardianship/termination proceedings under Title 30. See N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 562 (1994).
Moreover, we note that although certain interim fact-finding was made by the court in the FN matter in her physical absence, defendant was indisputably in default status at the time of those hearings. She did not move to vacate the default entered against her or seek to set aside the resulting court orders, including the removal of John from her custody. More importantly, what occurred in the FN litigation was not dispositive of the outcome of the FG litigation, which was decided after a full-blown trial at which defendant and her expert testified.
In sum, defendant was not denied due process or treated unfairly by the court. Indeed, the trial court's rejection of the Division's request for complete termination as to all four children and its contrary disposition as to Mary bespeaks a just and sensitive recognition of defendant's interests as a parent.
Defendant's belated hearsay objection is also unavailing. Under Rule 5:12-4(d), the Division "shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal." R. 5:12-4(d). As this court has previously found:
[r]eports of this type, prepared by the qualified personnel of a state agency charged with the responsibility for overseeing the welfare of children in the State, supply a reasonably high degree of reliability as to the accuracy of the facts contained therein. The parent remains free to offer evidence contradicting any statements present in such reports and, of course, the trier of the facts may in his discretion call for live testimony on any point.
[In re Guardianship of Cope, 106 N.J. Super. 336, 344 (App. Div. 1969).]
Here, the Division's reports, although hearsay in nature, were properly entered into evidence under Rule 5:12-4(d). Additionally, the court allowed the Division's testifying caseworker to be cross-examined by defense counsel as to the contents of those records.
Defendant erroneously tries to equate this matter with a criminal case in which the right of confrontation under the Sixth Amendment to the United States Constitution is implicated. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197 n.9 (2004); see also State v. Branch, 182 N.J. 338, 349 (2005). No such violation occurred here in this civil proceeding. At any point, defendant could have requested live testimony from any of the individuals whose reports were submitted into evidence. Instead, defendant stipulated to the admission of the reports into evidence and failed to object to any testimony derived from or relating to the reports. The trial judge's consideration of the contents of those reports, as informed by the opinions of the testifying experts, was entirely proper.
The final judgment of termination as to defendant's three youngest children is hereby affirmed in all respects.