On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-14-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 1, 2010 - Decided: Before Judges Axelrad, R. B. Coleman and Lihotz.
N.C.S., the mother, appeals from a Family Part judgment of June 30, 2009, terminating her parental rights and awarding guardianship of her then almost twelve-year-old son, N.S.W., Jr. (Junior) to the Division of Youth and Family Services (DYFS) following a contested trial. On appeal, N.C.S. argues DYFS did not prove by clear and convincing evidence the third and fourth statutory prongs to establish that the best interests of her son required severance of her parental ties, i.e., DYFS failed to make reasonable efforts to provide N.C.S. with appropriate services and failed to prove that termination of parental rights would not do more harm than good. We note the Law Guardian initially challenged the court's legal analysis as to the fourth prong, specifically contending there was a paucity of evidence presented that DYFS would be able to find an adoptive home for the pre-teen, but appears to have altered its position as a result of the post-termination placement of Junior in an adoptive home, to be discussed in greater detail later in this opinion.
After considering the record and briefs in light of the applicable law, including the Law Guardian's initial challenge, we are satisfied the trial judge's findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). We affirm.
We need not describe in detail the many facts the trial court considered, particularly with regard to the first two statutory factors not challenged by N.C.S. We instead provide a brief summary of the cogent facts we considered in concluding that the judge's findings were well-supported by the evidence.
The following testimony and evidence were presented at the multi-day trial in June 2009, concluding with Judge David Katz's June 30, 2009 oral opinion and supplemented by his July 15, 2009 written opinion. DYFS presented the expert testimony of Mark Singer, Ed. D., who performed a psychological evaluation of N.C.S. and a bonding evaluation of N.C.S. and Junior. It also provided the factual testimony of two employees in its adoption unit, Howard Frazier, the CPR coordinator for the Adoption Office, and Eloise McDonald, a Family Service Specialist in the Adoption Unit. N.C.S. testified, and also presented the testimony of her then twenty-four-year-old daughter, A.S., regarding the limited issue of her attempt to obtain visitation with her sibling.*fn1 The court also conducted an in camera interview of Junior, who was entering seventh grade that September.
DYFS initially became involved with the family in 1990 with regard to substantiated claims of N.C.S.' abuse and neglect of A.S. Junior was born on July 29, 1997. On September 19, 2002, DYFS filed an order to show cause against N.C.S. and N.W.*fn2 in response to N.C.S.' twelve-hour delay in bringing her son to the emergency room after he became unresponsive as a result of ingesting an unknown illegal substance. DYFS was granted the care, custody and supervision of Junior, then five-years old. By order of November 8, 2002, custody of Junior was returned to "his parents," and DYFS retained "care and supervision only" of the child. At various times before and after this date, N.C.S. was hospitalized for anxiety, depression, schizophrenia, bipolar disorder, and auditory hallucinations.
On October 28, 2004, DYFS retained custody of Junior after N.W. tested positive for drugs. However, six weeks later, a court order returned the child to N.W.'s custody while DYFS retained care and supervision, with a condition that N.W. not allow N.C.S. unsupervised contact with Junior. In July 2005, Junior was removed from N.W.'s custody because N.W. failed to take a court-ordered drug screen, and was placed for about three months with N.W.'s sister. However, on October 28, 2005, Junior was placed with another foster family after DYFS determined the paternal aunt was allowing N.W. unsupervised visitation with the child.
Several court orders were issued in 2006 and 2007, finding DYFS' plan of long-term specialized care for Junior to be appropriate and acceptable. On May 28, 2008, the court issued a permanency order finding DYFS' plan for the termination of N.C.S.' and N.W.'s parental rights, followed by adoption, to be appropriate. On July 10, 2008, DYFS filed a complaint against N.C.S. and N.W. for guardianship of Junior.*fn3
Psychological testing of N.C.S. in January 2003 revealed that she functioned in the "retarded range of general ability with potential that is low to average"; however, she had "sufficient ability to learn parenting." The psychologist also found N.C.S. had a verified, substantial substance abuse history, remaining untreated for at least the past decade. His primary diagnosis was Adjustment Disorder with Anxiety (including Alcohol and Cocaine Abuse). In 2007, N.C.S. was diagnosed with "Panic Disorder with Agoraphobia Alcohol Dependency and Cocaine Abuse, Depressive Disorder, and Post-Traumatic Stress Disorder."
Dr. Singer related in his testimony and report that during his evaluation of N.C.S. on September 25, 2007, she reported having an extensive history of substance abuse without treatment, was arrested on five occasions, and was previously diagnosed with schizophrenia. N.C.S. further reported that for about fourteen years through April 2007, she heard voices telling her to hurt someone.
The compliance review order of December 12, 2007 reflects N.C.S. acknowledged that, if she took a drug test that day, she would test positive for cocaine. N.C.S. was incarcerated on drug charges in October 2007.
During Dr. Singer's April 3, 2009 evaluation of N.C.S., two months before trial, N.C.S. admitted having heard voices a few weeks prior, resulting in treatment at a psychiatric ward of a hospital. N.C.S. claimed the voices came and went, and music made them go away. She also acknowledged she was bi-polar and suffered from depression and anxiety. N.C.S. conceded she had been incarcerated from November 2008 to February 2009, and had been sentenced to one year of probation following her arrest for stabbing someone, which she claimed was a "reflex" action.
That same day, Dr. Singer performed a bonding evaluation between N.C.S. and Junior. The clinical psychologist testified that his observations of the interaction between N.C.S. and her son during the bonding evaluation revealed "[t]he session was void of any verbal, physical intimacy . . . [or] eye contact." Furthermore, "the totality of the behavior did not suggest that . . . [Junior] had come to see mom as a consistent figure, but also equally of concern, unfortunately [N.C.S.] seemed to distance herself from her child." Accordingly, Dr. Singer concluded N.C.S. was not capable of parenting the eleven year old at that time nor, "considering the totality of the data, including the length of time [N.C.S.] has had to make significant, longstanding changes in her life," and failed to do so, she was not likely to become capable of parenting Junior in the foreseeable future.
Dr. Singer further explained that, although Junior "intellectually" knew N.C.S. was his mother, the data did not suggest he saw his mother as "a consistent, nurturing parental figure in his life." The expert concluded Junior was not "firmly bonded" to his mother. Although he anticipated Junior would have "an adverse reaction" should his relationship with his mother be severed, the expert did not "anticipate that the reaction would be significant and . . . enduring in degree," because "the relationship ha[d] already been distanced." Dr. ...