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New Jersey Division of Youth and Family Services v. S.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 8, 2010

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
S.B., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF J.B., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-0032-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2010

Before Judges Fuentes, Gilroy and Simonelli.

S.M.B-G. (S.B.) the biological mother of Jason (a fictitious name), born June 2007, appeals from the June 18, 2009 order that terminated her parental rights to her son.*fn1 We affirm.

S.B., now twenty-seven years of age, has suffered from mental health issues since childhood. In 1993, S.B. was hospitalized at the Eastern Pennsylvania Psychiatric Institute. Because of continued emotional difficulties, S.B. was placed later that year by the Philadelphia Department of Human Services into the Crestwood Residential Treatment Program in Langhorne, Pennsylvania. S.B. continued in that program for several years. In October 1997, S.B. was diagnosed with psychotic disorder, N.O.S., oppositional defiant disorder and mild retardation.

Following her placement at Crestwood, S.B. continued receiving mental health services through various community programs. In August 2001, she was admitted to Ancora Psychiatric Hospital and released in November 2004; admitted again in August 2005 and released in January 2006; admitted a third time in January 2006 and released in August 2006. On August 5, 2007, S.B. was admitted again to Ancora Psychiatric Hospital after having been incarcerated for assaulting two behavioral health specialists. While in jail, S.B. had attempted to hang herself with a blanket. Upon admission to Ancora, S.B. was diagnosed with schizoaffective disorder, borderline personality disorder and mild retardation. S.B. was discharged from the hospital on September 4, 2007, on a conditional release. S.B. returned to the hospital on November 16, 2007, having been arrested and charged with aggravated assault by attempting to injure her husband with a kitchen knife. S.B. was discharged from Ancora on December 10, 2007, after the hospital created an aftercare program for her.

The New Jersey Division of Youth and Family Services (DYFS or the Division) first became involved with S.B. on January 30, 2007, on a referral from the University of Medicine and Dentistry Hospital of New Jersey (UMDNJ) in Newark when it informed DYFS that S.B. was a patient in its psychiatric unit, was twenty weeks pregnant, had failed to obtain prenatal care, and had told a hospital psychiatrist that "when she gives birth to the baby she will put it in a bag." In June 2007, S.B. gave birth to Jason. Because of concern of S.B.'s mental health, her possible inability to properly care for Jason, and a history of domestic violence between S.B. and J.G., her then paramour who also suffers from mental health issues, DYFS completed an emergency removal of Jason the day of his birth. On removal, DYFS placed Jason with a resource family where he has remained since.

On July 3, 2007, DYFS filed a complaint seeking custody of Jason. That same day, the court entered an order granting DYFS's request, determining that "the removal of the child was required due to imminent danger of the child's life, safety or health," as S.B. suffers from "schizophrenia, [bipolar] disorder, explosive disorder, mild to moderate, and is not able to care for the child." Because of S.B.'s mental health issues, the court appointed a guardian ad litem to represent her in the action.

On April 15, 2008, having ascertained that S.B. and J.G. had married on January 7, 2008, DYFS filed an amended complaint adding J.G. as a defendant. During the proceedings, DYFS provided various services to S.B., including psychological and psychiatric evaluations. DYFS also offered S.B. counseling services, but she did not attend. DYFS provided parenting classes to S.B. and J.G.; however, on August 12, 2008, the parenting class provider ended its involvement with S.B. and J.G. because of S.B.'s lack of cooperation. It was the instructor's opinion that S.B. was "not... capable of caring for her child, keeping him safe or parenting effectively. She is far too easily distracted to be responsible for a toddler. I am also concerned about the way [S.B.] deals with stress and anger at this time."

On September 23, 2008, the court entered an order approving the Division's plan for termination of parental rights followed by adoption. On November 18, 2008, DYFS filed its guardianship complaint against S.B., and later amended the complaint adding J.G. as a defendant on December 12, 2008. On January 29, 2009, after J.G. was excluded as Jason's biological father, the court dismissed him from the action.

The matter was tried on May 7, 13, 21, and June 18, 2009. Testifying at the guardianship proceeding were Joanne Thorton, a DYFS adoption specialist; S.B.; and Dr. Joanne M. Schroeder, a clinical psychologist who performed a psychological evaluation of S.B. on March 4 and 18, 2009, and a psychological evaluation of J.G. on April 13 and 17, 2009. The doctor also performed a bonding evaluation between Jason and G.G., his foster mother; and between Jason and S.B. and J.G. on March 6, and April 13, 2009, respectively.

Dr. Schroeder testified that when S.B. appeared at the Division's office for her psychological evaluation, she presented herself as "dirty," "smell[ing] of urine" and acting in a bizarre manner. "At one point, she removed all of her upper garments, revealing a bathing suit. And then she flipped the straps off of her shoulders and pointed out her skin to me. She put her hands in her pants, both the front and the back." The doctor opined that her actions disclosed "disorganization,*fn2 lack of contact with reality, [and] confusion." During the interview, S.B. left the office to use a restroom. After S.B. failed to return, the doctor went to check on her twenty-four minutes later and found her "in the bathroom with wet hair, again down to her bathing suit, and retying her head scarf and telling me it was pulling on her brain cells." The doctor stated that this was more evidence of S.B.'s "delusional ideas."

The doctor opined that it would be very difficult for S.B. to properly parent her son because she has "an active psychosis." "[I]t's very difficult to parent because you can't understand the difference between reality and what's going on in your own brain. Furthermore, the concerns about the potential for physical child abuse raised on the Child Abuse Potential Scale [are] highly concerning." When asked whether S.B. would be able to correct those problems in the near future, the doctor responded in the negative.

As to J.G., she testified that J.G. informed her that he had been hospitalized at Greystone Park Psychiatric Hospital for two and one-half years, and another time he had been hospitalized at UMDNJ and given a diagnosis of schizophrenia. When asked whether she believed J.G. was competent to parent, she said no "because he doesn't understand" [S.B.'s cognitive limitations.] It was the doctor's opinion that S.B. and J.G. could not safely parent Jason.

Concerning her bonding evaluations between Jason, S.B., and J.G., and between Jason and G.G., the doctor testified that it did not appear that Jason considered S.B. or J.G. as his biological parents. When asked whether termination of parental rights would cause serious and enduring harm to Jason, the doctor opined:

Well, the conclusion of the evaluation was that they definitely have a relationship so it could even involve an attachment.

So to the extent that there is an attachment there, then I would say it could cause him some harm.

....

Well, in conjunction with the foster parent bonding evaluation, there was strong evidence of a secure attachment and the fact that the foster parent has been his primary caregiver since infancy.

She's his primary attachment figure so while termination of the relationship may cause him some distress[, it] would not rise to the level of serious and enduring harm because he has an attachment relationship elsewhere.

On the last day of trial, Judge Mendez entered an order supported by a fifty-six page written decision terminating S.B.'s parental rights to Jason.

On appeal, S.B. argues:

POINT I.

THE STATE FAILED TO ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT IT IS NECESSARY TO TERMINATE THE MOTHER'S PARENTAL RIGHTS IN ORDER TO PROTECT THE CHILD'S BEST INTERESTS.

A. THE STATE FAILED TO PRODUCE EVIDENCE OF HARM TO THE CHILD AS A RESULT OF THE PARENTAL RELATIONSHIP BETWEEN THE MOTHER AND CHILD.

B. THE STATE FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE MOTHER IS UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.

C. DYFS FAILED TO PROVIDE ANY SERVICES AND THE TRIAL COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION.

1. DYFS FAILED TO PROVIDE SUFFICIENT SERVICES.

2. FAILURE TO PURSUE THE DIVISION OF DEVELOPMENT DISABILITIES OR DIVISION OF VOCATIONAL REHABILITATION PLACEMENT OF PARENT AND CHILD VIOLATED THE ALTERNATIVES TO TERMINATION REQUIREMENT, THE REASONABLE EFFORTS REQUIREMENT, AND THE MOTHER'S RIGHTS AS A DEVELOPMENTALLY DISABLED PERSON.

3. THE TRIAL COURT FAILED TO SUFFICIENTLY PUSUE ALTERNATIVES TO TERMINATION.

D. THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.

Contrary to appellant, the Law Guardian supports the decision of the trial court.

Termination of parental rights is authorized when found to be in the best interests of the child. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 434 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Such actions require proof by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. L.C., 346 N.J. Super. 435, 439 (App. Div. 2002). Termination actions brought under N.J.S.A. 30:4C-15.1a are decided under a four-part "best interests of the child" standard, first enunciated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-61 (1986) and now codified in N.J.S.A. 30:4C-15.1a. Under that standard, parental rights may be terminated only when:

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

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

(3) The [D]ivision 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.]

The four prongs of the best interests test "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). The considerations are fact sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007).

Our review of the trial judge's fact-finding is limited. Id. at 278. "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). Such deference "is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Id. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Moreover, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth and Family Servs. v. H.B., 375 N.J. Super. 148, 172 (App. Div. 2005) (quoting Cesare, supra, 154 N.J. at 413). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We have considered appellant's arguments in light of the record and applicable law. None of the arguments are of sufficient merit to warrant a discussion in a written opinion.

R. 2:11-3(e)(1)(E). The judgment of the trial court terminating appellant's parental rights is supported by sufficient, credible evidence in the record. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons expressed by Judge Mendez in his thoughtful, written opinion of June 18, 2009.

Affirmed.


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