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Division of Youth and Family Services v. C.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 22, 2010

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

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-194-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 4, 2010

Before Judges Fuentes and Simonelli.

S.J. (mother) and C.S. (father) are the biological parents of A.C.S., a little girl born in June 2006. They now appeal from the order of the Family Part terminating their parental rights to their daughter. We affirm. We are satisfied that the record developed before the trial court amply supports the termination of the parental rights of both biological parents.

I. Early Intervention by DYFS

The Division of Youth and Family Services (DYFS or Division) first became involved with A.C.S. shortly after her birth. DYFS responded to a referral from a hospital social worker initiated because the child had tested positive for ethanol at the time of her birth. When questioned about her pregnancy, S.J. admitted to having had limited prenatal care and to smoking marijuana on at least one occasion while pregnant. Additionally, immediately after giving birth, S.J. tested positive for tobacco and alcohol. Based both on this information and on the Division's prior involvement with S.J.,*fn1 DYFS assumed temporary legal custody of A.C.S., thereby preventing S.J. from taking the child with her after S.J. was discharged from the hospital.*fn2

On June 14, 2006, the Division retained Dr. Andrew P. Brown of Neurobehavior Consultants, Inc. to determine whether C.S. was psychologically and emotionally capable of carrying out his obligations and responsibilities as A.C.S.'s father. Dr. Brown opined that C.S. had "a significant history of anti-social activity" and "anti-social tendencies as evidenced by [his] dishonesty during the clinical interview." He further noted that C.S. "engages in excessive use of denial" and has "poor insight." With respect to his parenting skills, C.S. appeared "rather rigid in his conceptualization of parenting" which, in Dr. Brown's opinion, would make him "likely authoritative" and could lead him to "experience a distant bond with his children as they mature."

Although C.S. did not present an immediate threat to his daughter, Dr. Brown opined that he needed parenting education, in-home parenting assistance, and continued monitoring by the Division in order to ensure that A.C.S. had a secure and safe home environment. Subject to these conditions, DYFS released A.C.S. to her father's custody on June 14, 2006.

C.S. failed to adhere to these conditions as he did not attend any of the parenting classes scheduled for him by the Family Life Education Center. During this time, a Division worker continued to visit both father and child, attempted to arrange parenting classes for C.S., and provided him with an in-home parent aide. Despite these efforts, at some point during the summer of 2006, DYFS could not locate C.S. or his infant daughter. Concurrently, on July 12, 2006, S.J. tested positive for marijuana during a court-ordered urine screening.

On October 12, 2006, C.S. contacted the Division to report that he had moved to a new residence in Newark. He also provided DYFS with a cell phone number that the caseworker could use to contact him. According to C.S., he had not contacted DYFS earlier because he thought the case was closed. DYFS arranged a visit with the family on October 18, 2006; at this visit, the caseworker noted that A.C.S. appeared "healthy and well taken care of."

The day after the caseworker visited with the family, DYFS became aware that C.S. had outstanding warrants for domestic violence assault, possession of a weapon, and possession of illicit drugs. The Division caseworker who responded to C.S.'s residence that same day found only an uninvolved woman present at the home. She reported that S.J. had recently left the residence with A.C.S. Despite further investigation, DYFS was unable to locate C.S., S.J., or the child.

On October 27, 2006, a caseworker at the Office of Children's Services reported that New York Law Enforcement and the New Jersey Police planned to arrest C.S. due to his outstanding warrants. Thus, A.C.S., the minor child in his custody, would need emergency placement services. C.S. was arrested the following day; DYFS assumed legal custody of A.C.S., and she was placed in foster care, where she still resides.

Division Services to S.J.

From January 2007 until September 2008, the Division scheduled visitation between S.J. and A.C.S. every other week. Although S.J. attended most of these supervised contacts with A.C.S., she occasionally missed appointments without prior notice or explanation. During those times that S.J. met with her daughter, the Division caseworker reported that the interactions between them were mostly positive. After S.J. tested negative for illicit substances, the Division approved mental health services and parenting-skills classes for her at Johnson & Associates Counseling and Consultation Group.

Diagnostic tests performed on A.C.S. on February 5, 2007, to determine her emotional and intellectual development, showed that she was functioning at an "age appropriate" level. With respect to her physical development, although not fully current on her immunization vaccines, A.C.S. was otherwise in good physical health.

On March 12 and 19, 2007, the Division sent non-compliance notices to S.J. regarding her failure to attend parenting skills classes and mental health therapy sessions at Johnson & Associates. On March 21, 2007, S.J. enrolled in Integrity House, an inpatient substance abuse facility in Newark. While in treatment at Integrity House, S.J. was admitted to Beth Israel Hospital in Newark for approximately three days after an altercation she had with another resident. Physicians at Beth Israel diagnosed S.J. as suffering from bipolar disorder. Since she was not homicidal or suicidal, S.J. was given one dose of Depakote, a medication used for treating this mood disorder, and then released.

On May 23, 2007, S.J. was discharged from Integrity House in Newark due to her refusal to abide by that facility's rules and regulations. Integrity House recommended her to Urban Renewal in Newark for continued psychological and drug abuse treatment.

The day following her discharge from the Integrity House in Newark, S.J. enrolled in another Integrity House facility located in Secaucus. While at the Secaucus facility, S.J. received medical treatment at Beth Israel Hospital, attended Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings, submitted to urine screenings on a regular basis, performed general household cleaning, attended G.E.D. classes, and participated in individual and group therapy sessions.

On August 10, 2007, the Secaucus Integrity House reported that S.J. had not tested positive for drugs while in treatment and did not appear to have any medical problems. S.J. continued to attend NA and AA meetings consistently, completed her household responsibilities, and attend behavior and coping skills therapy sessions. Despite this progress, S.J. had "difficulty adjusting to the program," displayed "negative attitude and behaviors of lashing out," and preferred "to isolate" herself from her peers.

S.J. was discharged from the Secaucus Integrity House on November 13, 2007; she reportedly dropped out of the program. According to Integrity House, S.J. left the program after becoming involved in a sexual relationship with another resident in violation of the program's rules; she was also disrespectful to the staff and refused to modify her behavior.

Dr. Mark Singer of the West Essex Psychology Center evaluated S.J. on December 20, 2007, pursuant to a DYFS referral. During the interview, S.J. admitted that she attempted to kill her older daughter's father in 2004 and that she also attempted suicide on two previous occasions. Although she did not report any homicidal or suicidal thoughts at that time, she stated that she felt depressed. S.J. admitted that she used alcohol every day from the age of twelve until nine months prior to this interview, that she used marijuana everyday between the age of twelve and November 2006, and that she used ecstasy occasionally from the age of eighteen until March 2007.

S.J. reported being prescribed Depakote and Seroquel for her bipolar disorder; however, she discontinued taking these medications without first notifying the physician who prescribed them to her. She had been incarcerated "on at least [five] occasions" for various assault and drug charges. S.J. also had a troubled childhood; between the ages of five and twelve, S.J. experienced physical abuse as a form of discipline and was sexually abused by her maternal grandfather.

Based on these revelations, Dr. Singer opined that S.J. "has internalized feelings of self-hatred and is dissatisfied with her life" and that she has "[f]eelings of depression." He believed that S.J. "has a poor self-image and focuses excessively on painful experiences... [S.J. has] feelings of hopelessness and may exploit others in order to meet her own needs." Dr. Singer diagnosed S.J. with substance dependency and depression, he considered the latter "a significant mental disorder." He also viewed her as at significant risk for substance abuse relapse.

Dr. Singer was particularly concerned that S.J. was not in a drug treatment program, had not completed parenting skills or anger management classes, was not receiving mental health services, and was not medication compliant. In this light, Dr. Singer opined that S.J. lacks the emotional and physical resources needed to care for any child at this time.

In addition, her level of non-compliance, considering her prolonged involvement with DYFS, raises significant concerns regarding her ability to muster the emotional resources to care for herself, prior to being able to care for any child.

To address these problems and create a path toward S.J.'s potential reunification with her daughter, Dr. Singer recommended that S.J. should: (1) continue to have supervised visitation with A.C.S.; (2) obtain employment; (3) secure stable and affordable housing; (4) complete anger management classes; (5) attend mental health and substance abuse therapy sessions; and (6) participate in a parenting skills training program.

S.J. received substance abuse treatment at REAL House, Inc. However, against the advice of the staff, she left the program on April 7, 2008. According to a representative from REAL House:

[S.J.] is making no effort to improve her life. She continues to display behaviors that are basically rude and unacceptable. [S.J.] has been offered an opportunity to change her life and she has refused to change her negative associat[ions] that appear to contribute to her poor decision making.

Newark Beth Israel Medical Center terminated S.J.'s care on April 7, 2008, based on her unexcused absences from the program during the preceding two months. Despite being provided with a voucher to cover the cost of transportation, S.J. failed to keep an appointment with a mental health service provider arranged by DYFS and missed a bonding evaluation with A.C.S. scheduled for April 18, 2008.

On April 28, 2008, S.J. tested positive for marijuana and methamphetamine during a court-ordered urine screening. On July 25, 2008, she enrolled in New Directions Behavioral Health Center for substance abuse treatment. While at New Directions, S.J. attended treatment three days per week for three hours each day, submitted to random drug testing, and attended individual therapy sessions. Again, despite these efforts, S.J. tested positive for marijuana on several occasions, was "resistant to treatment," and was sporadic in her attendance at therapy. She was discharged from the program in October of 2008. On October 21, 2008, DYFS provided S.J. with a detailed list of recommended detoxification and drug rehabilitation programs. On November 7, 2008, S.J. enrolled in a recovery program at People About Change, Inc., in Philadelphia, Pennsylvania, an outpatient facility that provides a twelve-step program and weekly group therapy.

Dr. Singer evaluated S.J. again on January 20, 2009. During this examination, S.J. stated that she was currently enrolled in psychotherapy, a mental health program, and was attending parenting skills classes. Dr. Singer found that S.J. exhibited a "Narcissistic Personality Disorder with histrionic and obsessive-compulsive personality features." In his opinion, S.J. needs excessive attention and approval, engages in overly dramatic behavior, and has an inflated sense of self-worth. Dr. Singer also reaffirmed his earlier diagnosis of substance dependency. Despite her self-reports of not using drugs since November 2008, Dr. Singer believed that S.J. remained at a high risk of relapsing due to her chronic dependency.

In Dr. Singer's opinion, S.J. is likely to have difficulty placing the needs a child ahead of her own needs and "continues to lack the resources needed to parent any child at this time." Due to her consistent inability to make meaningful, corrective changes in her life, Dr. Singer opined, "within a reasonable degree of psychological certainty, [that S.J.] is not likely to acquire the skills and resources needed to parent within the foreseeable future." He recommended termination of S.J.'s parental rights and the pursuit of a permanency plan for A.C.S.

Bonding

Dr. Mark Singer performed a bonding evaluation between A.C.S. and S.J. on August 12, 2008. In the course of this assessment, Dr. Singer noted that "[A.C.S.] would not enter the observation room with [her biological] mother." Once A.C.S. was coaxed into the observation room, the child did not respond to S.J. and would not engage with her. S.J. made several attempts to interact with A.C.S. to no avail. At one point, S.J. asked A.C.S. if she loved her to which the child responded "No." A.C.S. then asked for her foster mother and began to cry. S.J. was unable to comfort the child, who continued to cry until Dr. Singer terminated the session.

Based on these findings and observations, Dr. Singer opined that A.C.S. does not view S.J. as a parental figure. Consequently, severing ties between the two would not cause the child any significant emotional trauma.

Dr. Singer performed a bonding evaluation between A.C.S. and her foster mother on August 19, 2008. He observed the child and her foster mother play together, sing songs, and engage in "a lot of verbal contact initiated by both individuals." A.C.S. brought toys to her foster mother to play with, responded to her foster mother's requests, and "was easily engaged in play." In contrast to his assessment of S.J., Dr. Singer opined that A.C.S. viewed her foster mother as her psychological parent; the child had formed such a significant parental attachment to her foster mother that terminating their relationship would cause an adverse and enduring loss to A.C.S.

DYFS Services to C.S.

On November 19, 2008, Dr. Singer performed a psychological evaluation of C.S. at the Middlesex County Jail. C.S. reported that he had not seen his daughter since his arrest in October of 2006.*fn3 C.S. conceded that he had a history of domestic violence with S.J. By his own admission, he has been arrested at least fifteen times, with his first arrest occurring at the age of twelve.

C.S. pled guilty on July 1, 1993, to two drug-related offenses and was placed on probation for two years. In January of 1995, the court issued a bench warrant for his arrest for a violation of probation. On April 6, 1995, he pled guilty to aggravated assault, receiving stolen property, and criminal mischief and was sentenced to a term of four years imprisonment. In December 1998, C.S. pled guilty to possession of illicit drugs with intent to distribute and was sentenced to a term of three years incarceration to run concurrent with a New York sentence. When his parental rights termination case came before the trial court, C.S. was incarcerated in the Middlesex County Jail on drugs and weapons possession charges and was facing approximately five to fifteen years in prison.

With respect to his emotional and psychiatric health, although C.S. experiences bouts of depression, he did not report any suicidal or homicidal ideations. With respect to substance abuse, C.S. claimed to have used alcohol before his arrest and smoked marijuana between the ages of twelve and twenty. According to Dr. Singer, C.S. appeared to be "a religious individual who has come to view fathers as being providers."

Dr. Singer described C.S. as having low self-esteem, conflict in his relationships with women, and feelings of anger.

Based on this interview and other data available, Dr. Singer opined that it was unlikely that C.S. and A.C.S. had any secure parent-child bond. Indeed, C.S. had not seen his daughter for over two years. Dr. Singer further noted that, due to his incarceration, C.S. will not be physically able to parent A.C.S. for a significant period of time. After his release, Dr. Singer opined that C.S. would need "significant time to create stability in his own life" and "would not likely be able to create a sense of stability in the life of a child in the foreseeable future."

Dr. Singer concluded that in addition to the practical problems and impediments created by his incarceration, C.S. lacks "the emotional resources needed to independently parent and to provide [A.C.S.] with a safe and stable environment" and "would not likely be able to acquire the skills and resources needed to parent within the foreseeable future." Thus, Dr. Singer recommended that C.S. not be considered a parenting option for A.C.S. because "within a reasonable degree of psychological certainty, he cannot, nor will not be able to provide this child with the permanency and consistency she needs to continue to grow."

II.

Both the United States and New Jersey Supreme Courts have held that a "parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999); In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). This constitutional right must be balanced against "the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). In termination proceedings, the court's focus is the best interests of the child. Ibid.

N.J.S.A. 30:4C-15.1 codifies the best interests of the child standard as applied to termination of parental rights cases. Under that framework, DYFS may terminate an individual's parental rights 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 would cause serious and enduring emotional or psychological harm to the child;

(3)The division 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 criteria are not discreet and separate, but overlap with one another and provide a comprehensive standard for identifying what is in a child's best interests. K.H.O., supra, 161 N.J. at 348. The burden rests with the Division to prove each statutory prong by clear and convincing evidence. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Given the record developed before the trial court, we are satisfied that DYFS met its burden of proving each of the four statutory prongs, warranting the termination of the parental rights of both biological parents.

"The 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 specifically, "[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. As such, upon review an appellate court 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." N.J. Div. of Youth and Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.), certif. denied, 192 N.J. 68 (2007).

We incorporate by reference the trial court's detailed findings and conclusions of law with respect to C.S. We add only the following comments. The evidence before the trial court established that A.C.S.'s continued relationship and association with C.S. posed a palpable and readily identifiable threat to the child's emotional and psychological development. As to C.S., the court correctly found that DYFS met its burden of proof as to prong one of N.J.S.A. 30:4C-15.1a.

In addition to his conspicuous long-lasting absence from his daughter's life due to his persistent criminal behavior, C.S. had a chronic substance abuse problem, which was compounded by psychiatric and emotional issues that have exacerbated his dysfunctional lifestyle. He has not had stable housing, nor maintained gainful employment, mostly due to his criminal activities and resulting incarcerations. Under these circumstances, his continued association with A.C.S. represents a serious threat to her development. As Dr. Singer opined, termination of C.S.'s parental rights to A.C.S. is clearly in the child's best interests.

With respect to S.J., we are compelled to acknowledge that the trial court did not articulate any factual findings or conclusions of law relating to S.J. under the first statutory prong. A trial judge must articulate findings of fact and state conclusions of law for all decisions. R. 1:7-4(a). However, it is well-settled that "appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion." Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). Thus, despite this failure, we affirm because the record is replete with overwhelming evidence concerning the substantial risk of harm to A.C.S. posed by her biological mother.

S.J. has a significant history of mental health issues, including depression and two attempted suicides. Dr. Singer diagnosed S.J. with a serious mental disorder and substantial substance dependency. In his opinion, S.J. is unable to provide a stable and secure environment for her daughter and does not possess the skills and resources necessary to parent A.C.S. In addition to her extensive history of alcohol and drug abuse commencing at age twelve, S.J. admitted that she used marijuana during her pregnancy with A.C.S. and failed to obtain prenatal care. Although she did not test positive for any illicit drugs at the time of the child's birth, hospital staff detected alcohol in both her system, and in the baby's system, at the time of A.C.S.'s birth. S.J. has been unable to provide a stable environment for herself, let alone a suitable environment for her daughter. She entered and left multiple drug rehabilitation and mental health facilities during the two-anda-half years after A.C.S.'s birth. At the time of trial, S.J. was not employed nor did she have stable housing. While S.J. maintained a period of sobriety prior to trial, her history and conduct demonstrated that she posed a substantial risk of harm to A.C.S. There is thus substantial credible evidence in the record showing that the Division satisfied prong one as to S.J.

Finally, we note that although no bonding evaluation was done between A.C.S. and C.S., the circumstances of this case make this omission harmless. By the time this case came to trial, C.S. had been incarcerated for nearly three years. He had lost contact with A.C.S. months before his incarceration. Given the age of the child, and C.S.'s long absence from her life, the lack of bonding between them is self-evident.

We reject the remaining arguments raised by defendants and affirm substantially for the reasons expressed by the trial court in its oral opinion delivered from the bench on March 11, 2009.

Affirmed.


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