October 28, 2010
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.B., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FG-15-03-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 13, 2010
Before Judges Wefing, Baxter and Koblitz.
Defendant L.B. appeals from a June 30, 2009 Family Part order that granted the request of the Division of Youth and Family Services (DYFS or the Division) for termination of L.B.'s parental rights to her daughter, A.B., born on August 28, 2004. We conclude the proofs presented by the Division amply support the judge's conclusion that despite a wide array of services offered by the Division for several years, L.B. continues to suffer from a chronic mental illness that has caused her to drift from one unsuitable residence to another, thereby denying A.B. the safety and security to which she is entitled. We affirm.
L.B., who was forty-six years old at the time of trial, is the mother of six other children, born between 1990 and 2003, as a result of her relationships with five different men. To provide context for our discussion of the Division's efforts to terminate L.B.'s parental rights to A.B., we briefly describe the Division's involvement with L.B. starting in 1990. In February 1990, DYFS received a referral that L.B. was on the verge of causing harm to her infant daughter because she could not tolerate the baby's crying, with L.B. saying to the child's father "either you get this baby out of here or I'm going to hurt her." L.B. also told him to take the baby to welfare and "give her away." When the father brought the baby to his cousin's home, DYFS closed its file.
In the latter part of 1996, DFYS received a referral from the apartment manager of the public housing complex in which L.B. and her three children were residing, who reported that even though L.B. had been terminated from the transitional housing program, she continued to live there and would shortly be evicted. The apartment manager reported that L.B.'s three children were "unattended and in the care of a young girl" and her apartment was "in disarray." DYFS investigated, and although the agency concluded the children were not being properly supervised, DYFS closed its investigation without taking further action.
On December 10, 1996, L.B.'s son went to school with a "black and purple swollen cheek area near his eye." L.B. admitted she slapped her son, who was four years old, because he "had gotten on her nerves." Notably, L.B. had been on medication for an impulse control disorder, but the medication was apparently ineffective.
On April 23, 2003, the Division received a referral that one of L.B.'s sons had been staying with his godmother since birth because L.B. was suffering from post-partum depression and could not care for him. Shortly after the child was returned to L.B., she contacted DYFS requesting temporary foster care for the child, who was then nine months old. She reported that she was suffering from bipolar disorder, obsessive compulsive disorder and depression but had not seen a psychiatrist or taken medication for her mental illness in more than a year. After learning of L.B.'s inability to care for the child, DYFS returned him to the godmother's care.
During L.B.'s pregnancy with A.B., the Division attempted to provide in-home counseling for the family through Family Nurturing Service (FNS). L.B. was extremely uncooperative with the FNS program, often canceling when FNS staff arrived in the parking lot and were approaching her door. On the rare occasions that L.B. did permit the worker to enter her home, she participated only superficially because, according to a DYFS caseworker, L.B. "didn't feel she needed the services." When DYFS attempted to enroll L.B. in a step-down program, which is a program offering less intensive services, L.B. was terminated due to non-compliance.
In August 2004, when L.B. was nine months pregnant with A.B., the Division sent a worker to L.B.'s home to evaluate the steps L.B. had taken to provide for the impending birth of her child. DYFS learned that other than a car seat, a bouncy seat and some diapers, L.B. had nothing prepared for the arrival of the baby. In particular, she had no crib, no bedding, no formula or baby bottles and no clothing for the baby. L.B. admitted to the worker she had no plan for the baby's care if she slipped into post-partum depression again, but insisted she would "find someone to care for the child." The worker advised L.B. that she would contact her again in a week to see whether L.B. had made adequate preparations for the child.
Eight days later, when L.B.'s planning for the baby was no better than it had been earlier, DYFS conducted a court-approved emergency removal of A.B. because of L.B.'s lack of planning for the child and her failure to comply with the psychological and in-home services offered by the Division. The removal was accomplished when A.B. was three days old. DYFS placed A.B. in foster care, where she has remained ever since. The other children remained in L.B.'s custody because a judge determined that removal of the older children was unwarranted.
As part of its permanency planning for A.B., DYFS asked Dr. Alan J. Lee, Psy. D., to conduct a psychological evaluation of L.B. to evaluate her prospects for becoming a suitable caregiver for A.B. As a result of his November 12, 2004 evaluation, Dr. Lee reported that L.B. was "angry and irritable" during the evaluation, seemed to "lapse into moments of psychotic-like thinking" and displayed marked difficulty in "comprehending [the] conversation." He also noted that L.B. had reported a significant history of depression, which included bipolar disorder, with significant mood swings, periods of depression and pronounced irritability when faced with stressful situations. He opined that she was "generally immature and psychologically underdeveloped," and recommended that DYFS not return A.B. to L.B.'s care. In fact, Dr. Lee recommended that DYFS consider removing L.B.'s older children from her care, or, at a minimum, instituting "constant in-home supervision" to ensure that the children were not left alone with her.
Dr. Lee also recommended in his November 2004 report that DYFS provide an array of services, which included intensive outpatient treatment, medication monitoring, parenting classes and substance abuse treatment. DYFS provided all of those services, although L.B.'s participation was spotty. In particular, Shoreline Behavioral Health Center in Toms River terminated L.B. from its intensive outpatient program because of her irregular attendance.
In May 2005, L.B. was arrested on outstanding warrants.
L.B. called the Division because she was unable to post bail and her children were home alone. When the caseworker suggested a fifteen-day placement with a foster family, L.B. became irate and began cursing and screaming over the telephone. Eventually, L.B. provided her father's name and phone number, and the Division conducted an emergency removal of the children and placed them with their maternal grandfather, where they remained for several years. A.B., however, did not go to live with her maternal grandfather but remained in foster care.
From October 2005 until May 2007, DYFS provided L.B. with supervised visitation; however, the judge terminated the visitation in May 2007 upon being notified by DYFS that A.B. was routinely upset and crying on the way to the visits and that this behavior continued during the time she spent with her mother. In particular, A.B.'s daycare center reported that as the time approached for A.B. to leave the daycare center for her visits with her mother, she would begin to cry "uncontrollably." In fact, A.B. would cry even when she was handed her coat for outside recess, thinking she was about to be taken on a visit to her mother. The daycare center also reported that it took a "long time" for A.B. to return to a "happy, calm, normal . . . mood" after returning from the visits and she routinely threw away whatever toys or food L.B. had given to her.
During the time period L.B. was seeing A.B. for supervised visitation, the Division sent L.B. back to Dr. Lee for updated evaluations. His reports of August 29, 2005, May 15, 2006 and November 27, 2007 diagnosed a chronic mental illness, with a continued diagnosis of bipolar disorder and affective mood disorder, with some psychotic features. As he had done in his initial evaluation in November 2004, Dr. Lee recommended in each of the subsequent reports that the Division not return A.B. to the custody of L.B. because L.B. was psychologically unfit to rear a young child.
In his November 27, 2007 report, Dr. Lee pointedly noted L.B.'s account of losing her housing since the last evaluation and living in what he described as a "temporary and transient situation." He opined that L.B. was "very unclear and ambiguous" about finding a permanent residence and still "appear[ed] to be rather tenuous in her psychological organization and functioning."
In 2006, DYFS returned some of L.B.'s older children to her custody because they did not require the same level of supervision as A.B. By July 2007, L.B. was living in a condominium owned by her father, but the condominium association removed L.B. and her children because of the noise and condition of the condominium. The five children went to live with their grandfather, who was financially supporting L.B. and the five children. If A.B. were to be returned to L.B., her father said he would no longer financially support her or her children.
After leaving the condominium, L.B. frequently moved, living with friends and then at motels for the next two years. In particular, in July 2008, L.B. and one of her older children, J.B., were living at the Americana Motel. During a visit by a caseworker, DYFS observed that the conditions were "deplorable," there were no sheets on the mattresses and the room was cluttered. Shortly thereafter, L.B. was evicted from the motel based on non-payment of rent, at which time J.B. was placed with his maternal grandfather. In the latter part of July 2008, DYFS learned that L.B., who had resumed outpatient therapy at Shoreline Behavioral Health Center, had again been terminated from its treatment program due to her irregular attendance.
In anticipation of trial, the Division asked Dr. Lee to conduct a fifth psychological evaluation of L.B. on October 14, 2008. Diagnosing L.B. with an "affective [mood] disorder such as bipolar disorder" with "psychotic features," Dr. Lee opined that although L.B. had improved slightly since his last evaluation, she continues to be very easily disorganized, confused, and seemingly anxious and labile.
She continues to struggle with issues such as unstable residence, and in the current evaluation refused to disclose her current residence. . . . Her employment situation still also seems to be a bit tenuous and unstable. . . . She continues to have rather limited personal insight and awareness as to her issues and problems.
Despite the passage of time and various involvement and services, there remain compelling concerns against [L.B.] functioning as an independent caregiver to the minor child. . . . As such, [L.B.] is not supported as an independent caregiver to the minor child [A.B.] at this time or within the foreseeable future.
The trial began in January 2009 and, after an interruption, concluded in June 2009. Dr. Lee's testimony repeated his recommendation, which had remained unchanged through five psychological evaluations, that A.B. should not be returned to L.B.'s custody because of L.B.'s chronic mental illness and protracted inability to provide a secure and nurturing environment for A.B.
Dr. Lee also described in considerable detail the bonding evaluation he had conducted in October 2008 concerning L.B. and A.B., who was by then five years old. The bonding evaluation consisted of three components, a psychological interview of L.B., a conversation with A.B. and a one-hour observation by Dr. Lee through a one-way mirror of L.B. interacting with A.B. Dr. Lee reported that when L.B. entered the room, A.B. had a "blank look on her face" and the child did not physically approach her mother. Moreover, when L.B. entered the room, rather than choosing a seat next to her daughter, L.B. sat on the couch on the far side of the room, and she "did not physically approach the child or ask for a hug, [or] initiate any kind of hug or kiss." When L.B. tried to play the game Candy Land with A.B., she was confused about how to play, and became "increasingly loud, animated and disorganized in terms of . . . her speech and thinking." The two then began to crayon together, but soon lost interest, with L.B. sitting on the floor by the couch and A.B. sitting on the recliner by herself. When Dr. Lee asked L.B. to exit the room so he could observe A.B.'s reaction to her mother's departure, according to Dr. Lee, A.B. "did not show any kind of acute distress" when her mother left the room.
Dr. Lee also described his interview with L.B., in which she conceded that her living arrangements had been transient and unstable for the past several years. Dr. Lee opined, as a result of his bonding evaluation of L.B. and A.B., that there was not a significant and positive psychological bond between the two, and that if L.B.'s parental rights were terminated, there was a "relatively low risk" for the child "suffering severe, enduring or irreparable psychological harm."
Dr. Lee's bonding evaluation also included an assessment of A.B.'s relationship with the foster parents,*fn1 in whose care she "thrive[d] and flourish[ed]." Dr. Lee opined there was a significant and positive psychological bond between A.B. and the foster parents, and if that bond were to be broken, it would cause "severe, enduring and irreparable psychological harm to [A.B.]."
L.B. testified, explaining that her income was approximately $2,500 per month from Social Security and child support. She also derived sporadic income from working at a flea market selling used clothing. When asked to describe her housing situation, L.B. testified she has been on the waiting list for subsidized housing for over five years. She had considered a mobile home at a retirement community but the community was aged-restricted and she could not let "anybody in the neighborhood know that [her] kids are in there." She also explained that even though DYFS had offered to pay half of her security deposit, she had been unable to find a place to live. She admitted that, although she was on a waiting list for a two-bedroom apartment, she had not told the landlord that one of her sons visited on weekends, nor did she mention the possibility of A.B. coming to live with her. At the time of trial, L.B. was essentially living on borrowed time at the 88 Motel in Brick because the owner of the motel had already ordered her to leave because she was unable to pay the increased rent that the landlord was demanding for a summer rental at the shore.
L.B. admitted at trial that after the condominium association forced her to vacate her father's condominium unit in July 2007, she had lived in seven different places. She explained:
I lived in Toms River with my girlfriend. I lived at the Americana. I lived at the Shor[e] Hills Motel, 88 Motel. I lived a little bit at Point Pleasant Beach. . . . I lived with another girlfriend in Lakewood.
I lived with another friend and her mom in Eatontown who are Section 8 which I couldn't say where I was living because they're on Section 8.
When asked where she intended to move once she left the motel, L.B. admitted she had no plan:
Q: And you have no idea, as we sit here today where you're going to move with the children.
A: Well, I wanted to go -- I want to go to the trailer.
Q: I understand that you want to do a lot of things. We all want to do a lot of things. My question is, as we sit here today, you really don't have a plan to move with these children, do you?
A: I don't have a place, no.
In a comprehensive oral opinion, Judge Hoffman made detailed findings of fact to support his conclusion that the Division had satisfied all four prongs of N.J.S.A. 30:4C-15.1(a), the statute which establishes the standards for termination of parental rights. As to the first prong, which requires DYFS to establish that "the child's safety, health or development has been or will continue to be endangered by the parental relationship," the judge pointed to L.B.'s lack of emotional stability and her prolonged inability to provide stable housing for her children. The judge observed that for a protracted period of time, L.B. had "no real employment history, no financial stability, no emotional stability" and there was no realistic possibility, according to the judge, that her chaotic lifestyle would improve in the reasonably foreseeable future.
Describing L.B.'s current living arrangements at the Route
88 Motel, the judge pointedly observed that in one motel room, with two double beds, L.B. was living with two sons, ages ten and thirteen, a daughter who was fifteen, and another son, who was six years old, who typically visited on weekends. Thus, "mom and three-and-a-half children of varying ages, different sex[es], [are] residing in this small unit and sleeping in beds together." The judge also found that L.B. had "no appropriate housing . . . in spite of the Division's efforts," which had included referrals to numerous apartments and offering to assist L.B. with a security deposit. L.B., according to the judge, "has not taken advantage of that . . . and [had been] evicted from subsidized housing, evicted from the condo, evicted from the Americana Motel, [and] about to be evicted, if not already evicted, from the Route 88 Motel."
The judge turned to prong two, which requires the Division to establish that the parent is unwilling or unable to eliminate the harm facing the child and the delay of permanent placement will add to the harm. Judge Hoffman found that despite years of mental health treatment, the chronicity of L.B.'s deep-seated psychological problems made it highly unlikely she would ever become sufficiently stable to provide a secure and supportive home for A.B. The judge also found that delaying permanent placement would only add to that harm, in light of A.B.'s lack of attachment to L.B. and her strong bond with her foster parents.
Addressing the third prong of N.J.S.A. 30:4C-15.1(a), which requires DYFS to establish that the Division has made reasonable efforts to provide services to help the parent correct the circumstances that led to the removal of the child, Judge Hoffman observed that DYFS satisfied the third prong, because it had provided an array of services over an extended period of time, including psychiatric evaluations, psychological evaluations, supervised visitation, in-home parenting services, therapeutic supervised visitation, intensive outpatient mental health counseling, medication monitoring and referrals for apartments.
Turning to the fourth prong, which requires DYFS to establish that termination of parental rights will not do more harm than good, the judge relied upon Dr. Lee's description of the lack of affection and the physical distance between mother and daughter during the bonding evaluation as support for his conclusion that termination of L.B.'s parental rights would cause no harm to A.B. and that removal of A.B. from her foster parents, with whom she has developed a secure and loving relationship, would have a devastating impact. Consequently, the judge concluded that DYFS had proven all four prongs of the statutory test by clear and convincing evidence.
On appeal, L.B. does not challenge the judge's conclusions as to the second and third prongs, instead confining her argument to a claim that DYFS failed to satisfy the first and fourth prongs by clear and convincing evidence.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). When we review a trial judge's findings, we are obliged to accord deference to the trial judge's credibility determinations and feel of the case based upon the court's opportunity to see and hear the witnesses. Indeed, a trial court's findings are "binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." K.H.O., supra, 161 N.J. at 346. However, these parental rights are not absolute because the State has a parens patriae responsibility to protect minor children from serious physical or emotional harm. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). When a child's physical or mental health is at stake, "a state is not without constitutional control over parental discretion." In re Adoption of Children by G.P.B., 161 N.J. 396, 414 (1999) (O'Hern, J., concurring) (quoting Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 L.Ed. 2d 101, 119 (1979)). In some cases, in order to protect the child, the severance of the parent-child relationship may be required. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). DYFS must present sufficient evidence to demonstrate that the child's "best interests" will be substantially prejudiced if the parent-child relationship is preserved. A.W., supra, 103 N.J. at 603.
New Jersey courts follow a four-part standard in a termination case, as articulated in A.W. and codified in N.J.S.A. 30:4C-15.1(a). The statute authorizes a court to terminate parental rights if DYFS proves by clear and convincing evidence 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) 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-15.1(a).]
These four statutory criteria 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." K.H.O., supra, 161 N.J. at 348.
As to the first prong, we are satisfied that immediately after DYFS removed A.B. from L.B.'s custody when the child was three days old, and continuing up to and including the commencement of the trial more than five years later, the Division provided L.B. with intensive psychological treatment, medication monitoring, supervised visitation and referrals for housing, all of which were designed to address L.B.'s unstable and inappropriate housing arrangements as well as her significant psychiatric problems. None of these interventions proved successful. Thus, despite therapy and despite medication, L.B. continues to suffer from a deep-seated mental illness that has, for an extended period of time, prevented her from establishing a secure and stable home for A.B., thereby "endanger[ing]" A.B.'s safety and health. See N.J.S.A. 30:4C-15.1(a)(1).
We reject L.B.'s contention that the Division failed to satisfy the first prong in light of the fact that she had not caused her daughter any actual harm. Such an argument mischaracterizes the first prong of the statute, which does not require the Division to establish that a parent has inflicted actual harm. Instead, the statute requires the Division to establish that the child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1) (emphasis added). As is evident, the Legislature has not required DYFS to wait until actual harm has occurred. Putting the child at substantial risk of harm suffices to satisfy N.J.S.A. 30:4C-15.1(a)(1). "Courts need not wait until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
We likewise reject L.B.'s argument that the first prong was not satisfied because courts are prohibited from terminating parental rights based only upon the parent's mental illness. Here, as the record demonstrates, the judge did not rely only upon L.B.'s mental illness, but instead based his opinion upon L.B.'s actual behavior, which included moving from one transient and unsuitable residence to another and being repeatedly evicted. Additionally, when the Division provided L.B. with in-home counseling services from FNS during her pregnancy, L.B. was resistant to those services and stated she needed no help. Literally days before A.B. was born, L.B. had no crib, no bedding, and no food for A.B., despite being told by the DYFS caseworker to prepare for the child's birth. As is evident, L.B. is unable, as Dr. Lee stated, to cope with even the "more routine and typical responsibilities of parenting." Thus, we reject L.B.'s contention that the judge improperly penalized her for her mental illness. The record demonstrates otherwise.
L.B. does not challenge the judge's conclusion that DYFS satisfied the second and third prongs. We therefore will not address them. El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 155 n.2 (App. Div. 2005) (holding that an issue not briefed is deemed abandoned).
As to the fourth prong, the uncontroverted testimony of Dr. Lee demonstrates by clear and convincing evidence that L.B. has failed to establish a parent-child relationship with her daughter and therefore termination of her parental rights to A.B. will not do more harm than good. This is especially so in light of the positive, nurturing and supportive relationship the child has developed with her foster parents, the rupturing of which will cause A.B. significant harm.
Judge Hoffman carefully reviewed the evidence presented by the Division, and concluded that DYFS satisfied, by clear and convincing evidence, all of the legal requirements for an order terminating L.B.'s parental rights. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with K.H.O., supra, 161 N.J. 337, and D.M.H., supra, 161 N.J. 365 and is fully-supported by the record.