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New Jersey Division of Youth and Family Services v. J.R.


March 16, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-120-09.

Per curiam.



Submitted February 24, 2010

Before Judges Graves, Sabatino, and J. N. Harris.

This Title 30*fn1 guardianship action involves Judith and her two young children, Susan and Joanne.*fn2 Over the past several years, Judith has been in and out of several inpatient programs, was enrolled in classes to improve her parenting skills, and participated in alcohol and drug rehabilitation therapy. Limited progress has been made towards rehabilitation, but the major dependency and depression issues that plagued defendant for a majority of her life still appear to trouble her.

Despite the intensive efforts of the New Jersey Division of Youth and Family Services (DYFS or the Division) to reunite Judith with her children, she continued to have substantial difficulty parenting and failed to make any meaningful progress towards reunification, as her extensive history of substance abuse, depression, and other cognitive defects effectively acted as a barrier towards that ultimate goal.

A multi-day trial was conducted, at which Judith testified. Additionally, DYFS representatives and expert testimony were presented regarding defendant's ability to parent. After a review of the evidence, the Family Part terminated Judith's parental rights as to Susan and Joanne. Defendant now appeals that decision, arguing, among other things, that her parental rights were erroneously terminated because DYFS failed to prove by clear and convincing evidence that the children were better off without their biological mother, pursuant to the requirements of N.J.S.A. 30:4C-15.1. We disagree and affirm.


Defendant and her children first became involved with DYFS on December 29, 2004, when a family doctor called the Division with concerns about Judith's ability to parent the minor children, Susan and Joanne. When the Division investigated and found that defendant had a significant history of drug use, together with issues linked to bipolar disorder and depression, it began providing services to the family. These services included substance abuse counseling, outpatient substance abuse treatment, and supervised visitation.

Despite its ongoing provision of opportunities to assist defendant and her children, the Division received additional referrals regarding the family. On May 20, 2005, after defendant left the children at home unsupervised, DYFS substantiated its first claim of neglect against Judith. There was a second substantiation of neglect shortly thereafter, when defendant left the children alone with their severely intoxicated maternal grandmother, which impelled DYFS to remove the children from defendant's care on an emergency basis.

On February 10, 2006, after being moved between various foster homes, the children were placed with the Garcia-Lugo family,*fn3 with whom they have primarily resided throughout the guardianship trial and current appeal. This family has expressed on numerous occasions that they are committed to adopting both Susan and Joanne, should defendant's parental rights be permanently terminated at the conclusion of this case.

During its involvement with Judith and her daughters, the Division explored numerous other placement options by considering several of defendant's relatives. All were ruled out as potential placements due to poor accommodations in the home, lack of interest, or other personal family issues that prevented the individuals from adequately caring for the children at that time.

In its continued effort to provide services to Judith in order to help her effectively parent and ultimately regain custody, DYFS arranged for her to be enrolled in the MatriArk inpatient residential program at the Seabrook House, which treats drug dependent women along with their children. From the time she entered the facility on March 22, 2006, the defendant received more of the Division's services, including drug rehabilitation, individual and group therapy, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings, educational and life skills classes, along with parenting sessions and psychological therapy.

During her first few months at Seabrook House, Judith was separately evaluated by two psychiatrists: Dr. David M. Friel, M.D., and Dr. James J. Feretti, M.D.; some time later, she was also seen by Dr. Thomas Galski, Ph.D., all in order to assess defendant's "levels of intellectual and personality functioning and to examine the presence of learning and memory problems affecting her ability to participate fully in her treatment program." The three mental health evaluations all reached a similar conclusion: Judith had a substance abuse disorder, along with depression, and that she would need continued monitoring by mental health professionals.

While at Seabrook House, Judith was permitted to have supervised visitation with the children between May 2006 and November 2006, which increased from two-hour visits each week to overnight weekend visitation. Because these visits appeared to be going well according to the Seabrook House staff, in November 2006, it was recommended that the Division permit defendant to live with the children at the inpatient home, and the court subsequently transferred physical custody of the children to Judith.

Despite the supervision by the Seabrook House staff, Judith was unable effectively to manage the children. She routinely left them unsupervised; often overslept, causing them to be late for school; used abusive language by calling them names and cursing at them; and was even observed slapping Joanne's hand. These problems compounded themselves on March 18, 2007, when defendant was observed kicking Susan in the leg; the incident was reported to DYFS and an investigation was conducted where it was learned that defendant had been physically abusing the children for much of their stay at Seabrook House.

On March 26, 2007, because of this investigation, the Division again substantiated abuse against defendant, and implemented a second emergency removal of the children from her care at the Seabrook House. On March 28, 2007, the Division was granted the custody, care, and supervision of the children.

Shortly thereafter, defendant was released from the Seabrook House after completion of the inpatient program, and was transferred to a halfway house. She was unable to comply with the house rules, forcing her to move between motels and shelters, as she was essentially homeless. Concerned about her mental status, defendant was referred to another psychologist for an evaluation. On June 26, 2007, Dr. Cara Nicolini Hilton, Psy.D. evaluated defendant and determined that she met the criteria for depression and bipolar disorder, concluding that Judith's cognitive limitations, poor decision-making skills, and psychiatric problems would inhibit her from meeting the goal of reunification without intensive ongoing therapy and support.

Between July 17, 2007 and January 17, 2008, defendant was temporarily placed in several women's shelters and inpatient hospital programs to help overcome her difficulties, but Judith was barely compliant and unable to obtain permanent housing or gainful employment. On January 18, 2008, after being hospitalized for a week due to "severe depression exacerbated by inability to sleep," defendant was informed by the Division of its intent to change the goal of the case from reunification to termination of her parental rights.

Between January 2008 and September 2008, defendant participated in two bonding evaluations with her children, conducted by Dr. Alice S. Nadelman, Ph.D., who determined that there was positive family interaction and some emotional attachment between defendant and the minors. However, Dr. Nadelman concluded that due to the depression and cognitive defects suffered by defendant, she does "not have the capacity to provide safe or appropriate parental care for her two daughters at the present time or in the foreseeable future."

Dr. Nadelman also conducted a bonding evaluation between the children and the foster parents, finding a positive attachment and bond in which the children thrived, looking to the foster parents for guidance and protection. Dr. Nadelman found that Joanne's primary attachment is to the Garcia-Lugo family, and that Susan showed a meaningful attachment to the foster parents as well. During the evaluative process with the foster parents, it was learned that the foster father recently left the home, but expectations were that the Garcia-Lugo couple would soon reconcile; Mrs. Garcia-Lugo was committed to adopting the children despite any uncertainty about her marriage.

The guardianship trial was conducted on April 28, April 30, and May 1, 2009, at which a DYFS caseworker, Dr. Nadelman, and defendant testified. No expert testimony was presented in support of defendant.

Dr. Nadelman summarized her findings at trial, explaining that defendant suffered from severe depression, and that her prognosis for reunification remained poor, as Judith failed to learn how to effectively parent even with the help of the inpatient program at the Seabrook House. The results of the bonding evaluations were also presented to the court. Dr. Nadelman explained that the Garcia-Lugo foster parents were Susan and Joanne's psychological parents, and that while the home was temporarily in turmoil when Mr. Garcia-Lugo left, the past marital problems of the foster parents did not affect the potential for permanency on behalf of the children. The conclusion presented to the court was that the children would in fact suffer enduring harm if their relationship were severed from the Garcia-Lugo family, and it would substantially interfere with the minors' physical, psychological, and emotional development.

At the conclusion of trial, the court endorsed the Division's plan of termination of parental rights, to be followed by an adoption of Susan and Joanne by the Garcia-Lugo family. In her written opinion, Judge Santiago found that the Division fulfilled its burden of proving the four elements of N.J.S.A. 30:4C-15.1 by clear and convincing evidence.

Defendant raises four issues on appeal: (1) that the Division failed to prove, by clear and convincing evidence, that it was in the best interests of the children for Judith's parental rights to be terminated; (2) that the Law Guardian overstepped its bounds by not advocating the children's wishes for reunification; (3) that the court erred in denying Judith unsupervised visitation, and (4) that it was erroneous to deny Judith's application for a stay and visitation pending appeal. We are unable to agree with defendant that Judge Santiago's decision was faulty; indeed, we affirm substantially for the reasons stated in her twenty-five page written opinion dated June 5, 2009. However, we add the following comments.


It is firmly held that "[t]he scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). More importantly, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413.

Moreover, our review of a trial court's decision to terminate parental rights is limited. We "must decide whether the findings made by the trial court could reasonably have been reached on substantial credible evidence present in the record when considering the proofs as a whole, giving due regard to the opportunity of the trial judge to determine credibility." New Jersey Div. of Youth and Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.), certif. denied, 192 N.J. 68 (2007).

It is well established that when seeking the termination of a parent's rights pursuant to N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing, by clear and convincing evidence, the following four prongs of the "best interest" determination:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child;

(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a). See also N.J. Div. of Youth and Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling "best interests" standards later codified in Title 30).]

The initial prong of the best interests standard is found in N.J.S.A. 30:4C-15.1(a)(1), which states that the first consideration in the termination of parental rights is whether "[t]he child's health and development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). Here, "[t]he harm shown... must be one that threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999).

After considering the evidence presented by the Division at trial, Judge Santiago was correct in finding that DYFS had sustained its burden that defendant put the health and development of her children in jeopardy, and would continue to do so if the parental relationship was to continue. The in-depth record indicates multiple instances of neglect when defendant left the children home alone or in the care of someone who was intoxicated. Additionally, the expert's opinions highlighted defendant's substance abuse history and cognitive impairments, including depression, bipolar disorder, and suicidal ideation, all factors that put the children at risk.

At trial, Dr. Nadelman testified that Judith concealed her drug use from the treatment program, and because she lacked support at home, and failed to use the resources available to her, there were clear concerns about her ability to cope with drug issues in the future. Additionally, defendant suffers from chronic illnesses for which constant vigilance and medication are required. As we review the Division's presentation at trial, we find that Judge Santiago was provided with more than enough clear and convincing evidence of defendant's inability to provide a safe or stable home for either of the children, and that "there had been no change in her overall capacity to provide safe and stable care."

The second prong of the "best interests" standard states that termination is appropriate if "[t]he 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 foster parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). Under this prong of the statute, a trial court is to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" the children at issue. A.W., supra, 103 N.J. at 607.

While defendant recently had become more compliant with the Division's services in the few months leading up to trial, the overwhelming evidence suggested that Judith's many health problems and cognitive instability made it likely that she "could not provide safe, stable and appropriate parenting for [Susan] and [Joanne] and that they would be at risk of harm if they were placed in her custody." Based on the testimony and evidence presented, we concur with Dr. Nadelman that defendant "wants to be a good parent, and that she loves her children. But that her overwhelming problems render her unable to do that." We find no error by the trial court in concluding that the defendant was unable to provide a safe home to the children, or to prevent potential harm caused to the children in the future, should the parental relationship continue. The Division satisfied its burden under N.J.S.A. 30:4C-15.1(a)(2).

Under the third part of the statute, termination is appropriate, in part, when "[t]he division has made diligent 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." N.J.S.A. 30:4C-15.1(a)(3). Pursuant to N.J.S.A. 30:4C-15.1(a)(3), and before termination of parental rights, DYFS must first make reasonable efforts to provide services to the defendant parent in an attempt to help her correct the issues in the family home that may warrant a termination of parental rights.

We conclude that DYFS provided more than adequate services to defendant, including ongoing supervised visitation, drug assessment, drug and alcohol support groups, parenting and life skills classes, along with individual and group psychological therapy both on an inpatient and outpatient basis. Sadly, these efforts were not enough, but the success or failure of a defendant's ability to parent after being provided such services does not automatically render such services reasonable or unreasonable. In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999). Instead, the diligence of the Division's "efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." Ibid. We find that the trial court was correct in concluding that despite the Division's consistent efforts to maintain a relationship between Judith and the children, there was only so much it could do before it became appropriate to change its goal from a reunification of the family to the termination of Judith's parental rights.

Additionally, pursuant to the requirements of N.J.S.A. 30:4C-15.1(a)(3), is it clear to us that the Division did all it could to find alternative suitable placement for Susan and Joanne. Several family and family friend options were suggested, but all were ruled out, as those individuals were either unable to care for the children or showed no interest in having the minors live with them during the proceedings or after the conclusion of the guardianship trial. Despite the lack of viable family placement options, the evidence demonstrated that Susan and Joanne have an extremely positive relationship with the Garcia-Lugo family. We find it appropriate that Judge Santiago determined, based upon the evidence presented, that it was in the children's best interest to remain with the foster family instead of being placed with a less-suitable family member.

Under the last prong, courts are to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). To satisfy the clear and convincing standard under N.J.S.A. 30:4C-15.1, DYFS must present sufficient testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" and interaction with the both the biological and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). The Division must be able to show that terminating the parental rights of the defendant, allowing the children to remain in their current foster home, will do no more harm than good to the children's development. In re Guardianship of K.L.F., 129 N.J. 32, 44-45 (1992); New Jersey Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-62 (App. Div. 2005); N.J.S.A. 30:4C-15.1(a)(4).

After considering the testimony from Dr. Nadelman regarding the bonding evaluation results, we agree with her that if the children's relationship with the foster family was to be severed, "each would suffer serious and enduring harm." It was anticipated that the young girls would lose the only stability that they had ever known, causing an increase in anxiety, aggression, and overall daily functioning.

While some concern was raised at trial that the foster family was coming apart due to the temporary absence of Mr. Garcia-Lugo, the evidence showed that the foster family was ready to move forward with adoption. Without evidence to the contrary, we find no error in the trial court relying on such evidence when determining the appropriate permanent placement for the children.

In sum, after a thorough consideration of the record and evidence presented to Judge Santiago at the guardianship trial, we find that her conclusions are "supported by adequate, substantial, credible evidence." Cesare, supra, 154 N.J. at 411-12. The court concluded that the Division proved the children's best interests through clear and convincing evidence, and we affirm.

Defendant next argues that the Law Guardian improperly advocated against the placement wishes of her clients, the children, and improperly objected to defendant's trial testimony regarding the children's wishes. We cannot agree.

At trial, Judith testified that her daughters told her that they wanted to remain in her custody, testimony that the Law Guardian promptly objected to, citing hearsay. We find that although this testimony could possibly fit into the state-of-mind exception under the hearsay rules, N.J.R.E. 803(c)(3), and therefore be admissible, the trial court's exclusion of such was inconsequential in light of the totality of the evidence presented against defendant, and does not amount to reversible error.

When we review the position of the Law Guardian in this case, we must keep in mind that "the Law Guardian's position [is] of particular significance because, while she actively represents and speaks for the child, she has to advocate for the best interests of a child too young to speak for himself, and represents neither adversary in the case." New Jersey Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). "Law guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client's desires may best be accomplished, [and] to express any concerns regarding the child's safety or well-being." New Jersey Div. of Youth and Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002).

The Law Guardian did just as she was supposed to do. We find that this advocacy by the Law Guardian on behalf of the children is what was required of any Law Guardian in a termination of parental rights proceeding. The trial court was proper in seriously considering the Law Guardian's recommendations.

Lastly, defendant argues that she was entitled to unsupervised visitation with her children, or at the very least, supervised visits with the children during the pendency of this appeal, and that the trial court erred by denying her these requests. Again, we cannot agree.

Judge Santiago was fully within her bounds when deciding not to expand visitation between Judith and the minor children. She specifically explained her reasons for doing so, and we find no fault in this visitation determination.

Furthermore, because we find that the trial court was justified in terminating Judith's parental rights after considering the overabundance of evidence presented at trial, it was proper to refuse visitation pending the outcome of this appeal. We have routinely held that visitation will not continue between a child and the defendant parent pending appeal, as long as the trial court determined that termination of parental rights was warranted. In re Baby M., 109 N.J. 396, 463-68 (1988); Cf. Matter of Adoption of Child by D.M.H., 135 N.J. 473, 494, cert. denied, Hollinshead v. Hoxworth, 513 U.S. 967, 115 S.Ct. 433, 130 L.Ed. 2d 345 (1994).

For the foregoing reasons, we conclude that the trial judge correctly found that the Division had met its evidentiary burden and established, through ample clear and convincing evidence, all of the criteria pursuant to N.J.S.A. 30:4C-15.1(a) for the termination of Judith's parental rights.


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