March 22, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF R.S.M., S.R.M., S.O.M. AND S.E.M. A/K/A B.B.L., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, FG-11-76-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 9, 2010
Before Judges Grall, Messano and LeWinn.
Defendant is the mother of eight children. She appeals from the December 24, 2008 judgment of the Family Part terminating her parental rights to her four youngest children: R.S.M., born in June 2002; S.R.M., born in September 2003; S.O.M., born in December 2004; and S.E.M., born in June 2007; the judgment further awarded guardianship of these four children to the New Jersey Division of Youth and Family Services (DYFS).*fn1
The four older children are not the subject of these proceedings.
Sometime in August 2005, DYFS investigated a report that all of defendant's children were neglected. Two DYFS workers responded and learned that six of the children were not enrolled in school, that defendant was on medication for depression, and that she had a history of domestic violence with A.M., her paramour and the biological father of six of the children. Defendant advised the workers that she was $4800 behind in her rent and over $1000 behind in utility payments. Further, none of the children had been seen by a pediatrician for two years.
DYFS immediately obtained a psychological evaluation of defendant by Dr. Stefan C. Dombrowski, who opined that defendant's "personality [was] fairly unstable, and stressful events may tend to set off an aggressive (verbal or otherwise) episode." The doctor concluded that defendant exhibited symptoms consistent with bipolar disorder, antisocial personality disorder and schizophrenia. Dr. Dombrowski recommended that defendant undergo substance abuse monitoring, because she had previously tested positive for methamphetamine at the birth of one of her children. He also recommended compliance with psychotropic medication and raised the possibility of removal of the children because of their educational neglect, as well as episodes of domestic violence and defendant's serious mental health history, to which the children had been exposed.
In October 2005, defendant agreed to enter a psychiatric screening center, Crisis Center, after purportedly telling the judge during a hearing, "I rather God take my children than [DYFS] . . . have my children[,]" and hitting a court officer. Defendant was discharged from Crisis Center on November 7, 2005; her record noted that she had become progressively "cooperative and compliant" during her time there.
Also in October 2005, defendant's children were all placed in various group and foster homes. R.S.M., S.R.M. and S.O.M. were placed together in the same foster home. At the time of the children's removal, the house in which they resided was described by a DYFS worker as essentially being in a state of disrepair. Cockroaches were observed in the living room and in the kitchen. The house had a foul odor and there were six bags of garbage in the kitchen. Upstairs, the bathroom had a broken sink and toilet, and the bathtub "had a brown substance in it."
When defendant was released from Crisis Center in November, she contacted DYFS seeking custody of her children. DYFS thereupon implemented various services for defendant and arranged for sibling visitation among the children. DYFS enrolled defendant in an out-patient program called "Miles Stones" for two to four weeks; however, defendant did not attend. DYFS then worked with defendant to secure her admission to the Bermingham Clinic for treatment of her psychological issues; defendant expressed a preference for that program because she had been treated there in the past.
DYFS caseworker Tashana Dashiell testified that the program was voluntary and that defendant's attendance was sporadic.
DYFS also attempted to enroll defendant in an "intensive service program" through the Children's Home Society. However, that organization declined to provide services until defendant "was in treatment for her mental health issues."
DYFS arranged visitation between defendant and the children, starting in November 2005; visitation was scheduled for the first and third Friday of every month. Caseworker Dashiell, however, testified that defendant was noncompliant, particularly at the beginning, and that she would frequently miss visits or show up late; defendant also failed to abide by the policy of confirming her visitation twenty-four hours prior to the scheduled time. As part of DYFS's visitation arrangements, Mercer Street Friends provided defendant with parent education sessions to observe her visitation and provide her with feedback to develop appropriate behavior and to identify behaviors that were "inappropriate or troublesome to the children."
When Dashiell attempted to speak with defendant about her non-compliance with visitation policies, defendant got "very upset and . . . lashed out at" her. Defendant was heard to "ma[k]e some derogatory, irrelevant statements" to Dashiell and to threaten to sue DYFS for keeping her children from her.
Between mid-2006 and the time of trial in December 2008, defendant participated in various services including: (1) therapy sessions at the Bermingham Clinic; (2) parenting classes at Mercer Street Friends; and (3) anger management classes at Catholic Charities.
Douglas Deane, a licensed social worker with whom defendant had therapy sessions at the Bermingham Clinic, reported in April 2008 that defendant "continues to focus in her individual therapy on her emotional stability, strengthening her coping skills that she practices to maintain balance, as evidenced in sound decision making. . . . She continues to learn and practice new skills in managing family relationships as they arise in current situations." Deane further reported that defendant had attained her high school diploma in February 2008 and was studying to be a medical assistant. Deane noted that defendant tended to call the DYFS hotline frequently, and he identified this as "a reflection of her love and concern for her children and her commitment to their well-being."
Also in April 2008, Cheryl Miller, a social worker with Mercer Street Friends, reported that defendant "has continued to be willing to discuss new parenting skills and to practice the strategies during her visits with the children." Miller noted, however, that "[a]lthough . . . [defendant] seems somewhat more able to regain her composure if/when she arrives or becomes upset during visits with her children, the issue of being emotionally volatile remains a concern in terms of consistent and healthy parent child interaction." The report concluded that, "[i]f reunification should occur, the Team would . . . strongly recommend intensive monitoring . . . during the period of adjustment focused upon [defendant's] emotional health and ability to consistently implement healthy parenting skills."
Catholic Charities reported, in April 2008, that defendant had "attended and participated in all scheduled sessions[,]" and that she was "respectful of the group process." This report, however, also expressed concern that defendant's religious beliefs, while "respected," impeded her ability to engage in the treatment program's "emotional regulation concept that involves recognition, responsibility, regulation and reparation[, and] . . . coming to terms with harmful emotions and perceptions." A July 2008 report from Catholic Charities noted that defendant had successfully completed the anger management program and had become "more reflective in both recognizing and understanding that she is ultimately responsible for her decisions, words, and actions."
In September 2008, defendant was arrested following a domestic violence incident with A.M. The police were called and noted that A.M. had a temporary restraining order against defendant who, nonetheless, had come to his home yelling to him that she loved him. The police advised defendant that she was in violation of the restraining order and arrested her for contempt of court.
Defendant also underwent several evaluations during this period. In a September 14, 2006 report, a psychiatrist, Dr. Vivian Shnaidman, noted that defendant had "a long history of mental illness, most likely Schizoffective Disorder." The doctor opined that although defendant clearly loved her children, "because of her persistent paranoia and her mental disorganization, she is unable to effectively care for her children[,]" and that despite treatment and medication, "she remains psychotic."
In an August 14, 2006 report, a psychologist, Dr. Jamie Gordon-Karp, opined that defendant was "a self-involved individual who has difficulty taking responsibility for the difficulties she has created for herself." In June 2007, Dr. Gordon-Karp conducted another evaluation of defendant as well as a bonding evaluation with the children. The doctor noted that "[a]ll of [defendant's] children ha[d] expressed a desire to be with [defendant] and not [A.M.] their father." The doctor also found that defendant's paranoid delusions were "notably absent[,]" and she attempted to present herself favorably.
Dr. Gordon-Karp concluded that there was "a close and mutually satisfying bond" between defendant and her children and that R.S.M., S.R.M. and S.O.M. were "visibly excited to see her[,] yet they did not react with grief when they were separated from her."
Defendant was pregnant with S.E.M. at that time, and Dr. Gordon-Karp recommended that defendant "be given the opportunity to care for" that child; however, the doctor recommended that R.S.M., S.R.M. and S.O.M. not be returned to defendant's custody because those children resided together in a "nurturing foster home." Dr. Gordon-Karp opined that reunifying the three young children with defendant would be overwhelming to her because she "has a lot on her plate."
When S.E.M. was born on June 9, 2007, DYFS obtained custody of the child because it had determined that "there was no valid evidence that [defendant was] capable of providing a safe and stable environment for . . . a newborn."
In July 2007, DYFS sent Dr. Gordon-Karp "updated information . . . to assist [her] in assessing the parental abilities of [defendant] . . . ." This information included numerous DYFS contact sheets from August 2005 to June 2007, as well as medical records and psychological evaluations. DYFS also forwarded information about a domestic violence incident in April 2007, in which defendant "became very irate and began to kick" A.M. and then hit him with a screwdriver.
Based upon this new information, Dr. Gordon-Karp conducted another evaluation on August 1, 2007, in which she concluded that "placing the children in [defendant's] care is not in their best interest." The doctor summarized the additional information, noting that it provides detailed information about how time and again [defendant] failed to confirm visits and showed up late for visits expecting that she would be accommodated by having the visit extended. When [defendant's] demands were not met she became enraged. Her outbursts were done in front of the children with little thought into how her behavior would affect her children and their well-being.
Dr. Gordon-Karp opined that "[u]nder extreme stress, [defendant] had difficulty managing her emotions[,]" and "based on the documents received, concerns exist that [defendant] has not internalized what she had learned in therapy enough to demonstrate that she has made significant progress." Dr. Gordon-Karp concluded, within "a reasonable degree of psychological certainty":
Given the difficulties [the] children have in their own behavior, this [p]sychologist has concerns about [defendant's] ability to recognize the need for help and seek the help with an open mind while following through on the recommendations. . . .
Based on the information presented . . . placing these children in their birth parents['] care is not in their best interest and will cause severe and enduring harm . . . . While terminating parental rights will cause grief reactions, the risk that [DYFS] would face by returning the children to their birth parents['] care would cause much greater harm. Based on the events that have taken place it appears that the children would be privy to domestic violence and a mother who has a great deal of difficulty controlling her anger. . . .
All of these children need permanency in their li[ves]. Perhaps with permanency will come a sense of calm which will enable . . . the children to flourish knowing that their life is no longer in chaos but stable and consistent with caregivers who have the skills and ability to provide the children with stability, nurturance, guidance and structure.
In October 2007, a Court Appointed Special Advocate (CASA) provided an update on the placement of R.S.M., S.R.M. and S.O.M. with their foster mother, H.C. The children called H.C. "mom" and the relationship was described as "warm and affectionate." The report recommended that the children "should remain with their current caretakers until there is a more definite plan for permanency." A CASA update in August 2008 noted that H.C. had expressed her willingness to adopt the three children.
Dr. Shnaidman conducted an updated evaluation of defendant in February 2008, noting that she "presents as much less psychotic and more appropriate than in the past." Although Dr. Shnaidman recommended the possibility of reunification for defendant's older children, conditioned upon more extensive psychiatric evaluations of those children and of A.M., the doctor cautioned against reunification with the younger children out of "fear for their safety, should [defendant] psychiatrically decompensate." Dr. Shnaidman concluded that defendant was "too emotionally fragile and her psychiatric stability is too recent to recommend that she be reunified with all eight children."
Dr. Gordon-Karp conducted a third evaluation in February 2008, in which she noted that R.S.M. had described to H.C. an incident when defendant burned S.O.M. with a cigarette; defendant had admitted the incident, stating that it was an accident. Dr. Gordon-Karp summarized what she regarded as defendant's aggressive history, including outbursts in court, a death threat to a DYFS caseworker, physical aggression against A.M. and making numerous calls to the DYFS hotline late at night to complain about the children's foster care placement. The doctor noted that "history indicates that under stress [defendant's] behavior deteriorates[,]" and concluded that, notwithstanding defendant's love for her children, "given the fragile state of the children as well as concerns with regard to [defendant's] ability to demonstrate long term stability" she could not support reunification.
In June 2008, Dr. David Bogacki performed a bonding evaluation of defendant and her children, and observed that there was an "insecure attachment of [R.S.M., S.R.M.], and [S.O.M.] to [defendant] and . . . evidence of familiarity but no attachment of [S.E.M] to [defendant]." Dr. Bogacki observed R.S.M., S.R.M., and S.O.M. to be bonded with their foster parent, H.C., concluding that "[t]here is evidence of [a] secure emotional attachment of these three children to their foster parent. . . . [T]his attachment is stronger to the foster parent than the attachment is to [defendant]." The doctor concluded that the children would suffer emotional harm if defendant's parental rights were terminated, but that "more harm will occur to the three children if the bond is severed with the foster parent." Regarding S.E.M., Dr. Bogacki found that the child was "securely emotionally attached to" his foster parents and that he "was very physically affectionate to both the foster mother and foster father."
Finally, Dr. Elayne Weitz evaluated defendant on September 24, 2008, and concluded that she was not "fit to parent any of [her] children." Dr. Weitz opined that defendant did not benefit from her anger management classes as evidenced by the domestic violence incidents with A.M., and noted defendant's tendency to blame others for her children's problems and to act impulsively.
Dr. Weitz also conducted a bonding evaluation with defendant and the children, and observed that the younger children felt anxious in their mother's presence and that defendant did not spend one-on-one time talking or being affectionate with any of the four younger children.
At trial, DYFS presented the testimony of Drs. Shnaidman, Gordon-Karp and Weitz, all of whom testified consistently with their reports. DYFS caseworker Dashiell testified that DYFS attempted to place the children with family members, but that defendant stated she wanted the children returned to her and not placed with any of her relatives. When DYFS contacted defendant's brother as a possible placement, he stated that he did not want to be harassed by defendant.
DYFS caseworker Jacqueline Clark testified that when she replaced Dashiell as case manager in May 2006, defendant and A.M. seemed to be in a stable relationship, living together and visiting the children jointly. Then, in September 2008, defendant was jailed for a domestic violence incident with A.M.; since that incident, defendant has resided at a shelter. Clark also testified that, as of the time of trial, S.E.M. was in a home with foster parents who were committed to adopting him, as were the other three children. Recognizing that defendant had "good compliance" with some of her programs, Clark nonetheless concluded that DYFS still had "concern, based on our expert reports, based on the evidence before us, that [defendant] will be able to provide a nurturing, stable home for her children."
Douglas Deane, defendant's social worker at the Bermingham Clinic, testified on her behalf, stating that she ultimately complied with treatment at the clinic commencing sometime between December 2006 and February 2007, and that she was compliant with taking her medications. Deane further testified that defendant had improved in the year following the April 2007 domestic violence incident by attending anger management classes, and concluded that defendant would be able to parent her children.
The trial judge rendered a decision from the bench on December 24, 2008. The judge extensively reviewed the evidence and found that "each of the three expert witnesses who testified for [DYFS] are very credible, and independently reached consistent [conclusions] . . . that the defendant's parental rights should be terminated for [the children's] own best interest, and . . . for their safety, health and development . . . ." The judge found that Deane's opinion was "more hopeful than assured" regarding whether defendant could handle raising all eight children, noting that Deane had never observed defendant's interactions with any of her children.
The judge concluded that DYFS had met its burden of establishing by clear and convincing evidence the factors in the so-called best interest test codified at N.J.S.A. 30:4C-15.1 (a)(1) to (4). First, the judge found that there "was inappropriate housing, lack of proper medical care . . . [and] even a failure to enroll in school[,]" demonstrating that the children's welfare had been "endangered" by the parental relationship. The judge next found that although defendant was willing to eliminate the harm to the children, she had not been able to do so. The judge noted that defendant "lives in a shelter and has no employment." Moreover, notwithstanding her eventual compliance with some services, defendant was still unable to parent the four younger children effectively. The judge found that DYFS's experts were more persuasive than Deane on this point. The judge also concluded that "to separate [S.E.M.] from his resource home and [S.R.M.], [S.O.M.], and [R.S.M.] from theirs would cause serious and enduring emotional or psychological harm to each of them."
The judge next found that DYFS had "provided sufficient services[, but defendant] has not complied with services." The judge further noted that DYFS had sought alternatives to terminating defendant's parental rights to the four younger children "by looking into various family members" with no success.
Finally, the judge found that DYFS had established that "termination of parental rights will not do more harm than good" for S.E.M. because the child has lived in his foster home for his entire life, and "[h]e is doing well. He has no bond with his mother[,]" and to "remove him would cause serious and emotional harm[.]" The judge found that R.S.M., S.R.M. and S.O.M. "are in the same situation in their shared foster home, as is [S.E.M.]. I make the same findings as to them."
On appeal, defendant raises the following contentions for our consideration
THE JUDGMENT FOR GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S PROOFS WERE TAINTED BY INSTITUTIONAL BIAS AGAINST THE POOR AND TERMINATION OF PARENTAL RIGHTS WAS CONTRARY TO N.J.S.A. 30:4C-15.1 CRITERIA
THE "HARM" CITED BY THE DIVISION DID NOT JUSTIFY TERMINATION OF PARENTAL RIGHTS AND THE DEFENDANT WAS NOT PARENTALLY "UNFIT"
THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TOWARDS REUNIFICATION BECAUSE IT MISDIAGNOSED THE DEFENDANT MAKING IT IMPOSSIBLE FOR HER TO COMPLY WITH THE REUNIFICATION PLAN AND BECAUSE THE INSTITUTIONAL BIAS OF THE DIVISION TAINTED THE INTEGRITY OF ITS EXPERTS' PROFESSIONAL INDEPENDENCE
TERMINATION OF PARENTAL RIGHTS BASED ON THE INSTITUTIONALLY BIASED "BETTER INTERESTS" TEST WILL DO MORE HARM THAN GOOD
Having considered these contentions in light of the record and controlling legal principles, we find they "are without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Marvin E. Schlosser in his oral opinion rendered from the bench. R. 2:11-3(e)(1)(A). We add only the following comments.
An appellate court will not disturb the factual findings and legal conclusions of the trial judge unless they are so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quotations omitted). "That the case may be a close one or that the trial court decided all evidence or inference conflicts in favor of one side has no special effect." State v. Johnson, 42 N.J. 146, 162 (1964). This approach is particularly appropriate in family court proceedings. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The scope of our review in an appeal from an order terminating parental rights is strictly limited. N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) "[D]eference will . . . be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)).
The gravamen of defendant's argument is that "improper institutional bias was present in this case[,]" because of "her life circumstances [that] have worked against her." We are satisfied, however, that the trial judge appropriately focused on the conditions under which the children lived while in defendant's custody which led to their lack of education and medical care, exposure to domestic violence and neglect. Other than alluding to the fact that defendant "currently . . . lives in a shelter and has no employment[,]" the judge made no reference to defendant's "poverty" in his findings or conclusions. Rather, as noted, the judge cited the essentially uncontradicted expert evidence regarding defendant's serious psychological and emotional problems which, notwithstanding her efforts to address them, still impacted negatively upon her ability to provide her four young children with a stable, nurturing home in the foreseeable future.
We are satisfied that "adequate, substantial, and credible evidence[,]" G.L., supra, 191 N.J. at 605, supports the trial judge's findings with respect to the four statutory prongs, namely that:
(1) The child[ren]'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[ren] or is unable or unwilling to provide a safe and stable home for the child[ren] and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child[ren] from [their] resource family parents would cause serious and enduring emotional or psychological harm to the child[ren];
(3) [DYFS] has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child[ren]'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)(1) to (4).]
"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In Re Guardianship of K.H.O, 161 N.J. 337, 348 (1999). "[P]arental fitness is the key to determining the best interests of the child. The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (citing In Re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)). We are satisfied that the record clearly supports Judge Schlosser's "fact sensitive" analysis of the "specific circumstances" in this case.