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New Jersey Division of Youth and Family Services v. A.M. and K.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 11, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.M. AND K.M., DEFENDANTS-APPELLANTS,
IN THE MATTER OF THE GUARDIANSHIP OF M.M., MINOR

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-178-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2010 - Decided Before Judges Yannotti and Espinosa.

This case presents the consolidated appeals of A.M. and K.M. from an order that terminated their parental rights to M.M., the third of their seven children. We affirm the order terminating defendants' parental rights substantially for the reasons stated by Judge Davis in her oral decision of November 24, 2009.

A.M. presents the following issues for our consideration:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1 WERE MET, AS WILL BE DETAILED IN THE ARGUMENTS BELOW POINT I(A)

THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT M.M.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG, WHERE DEFENDANT WAS NOT AT HOME WHEN THE ACCIDENT THAT CAUSED THE CHILD'S INJURIES OCCURRED, HE WAS IN NO WAY DIRECTLY RESPONSIBLE FOR HER BURNS, AND THE PRIMARY CARETAKER, THE MOTHER, AND NOT THE DEFENDANT, FAILED TO PROPERLY SUPERVISE THE CHILD POINT I(B)

THERE WAS INSUFFICIENT EVIDENCE UNDER THE SECOND PRONG TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.M. WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING M.M., OR IS UNABLE OR UNWILLING TO PROVIDE A SAFE AND STABLE HOME FOR HER, AND THE DELAY OF PERMANENT PLACEMENT WILL ADD TO THE HARM, WHERE THE DEFENDANT PREVIOUSLY HAD A VERY GOOD RELATIONSHIP WITH THE CHILD, THE DEFENDANT SUCCESSFULLY COMPLETED THE PROGRAMS AFFORDED TO HIM, AND HE DEMONSTRATED A CLEAR ABILITY AND INTENT ON PROTECTING THE CHILD FROM FURTHER HARM POINT I(C)

D.Y.F.S. FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP A.M. CORRECT THE CIRCUMSTANCES THAT LED TO THE CHILD'S PLACEMENT WITH FOSTER PARENTS, BUT ON THE CONTRARY CONDUCTED THEMSELVES IN A MANNER THAT INFRINGED UPON DEFENDANT'S VISITATION AND CREATED AN ATMOSPHERE THAT WAS COUNTERPRODUCTIVE AND FOSTERED FEAR ON THE PART OF THE CHILD POINT I(D)

THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF A.M.'S PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER THE FOURTH PRONG, WHERE D.Y.F.S.'S ACTIONS ARE WHAT LED TO THE DETERIORATION OF WHAT WAS PREVIOUSLY AN EXCELLENT PARENT-CHILD RELATIONSHIP K.M. presents the following issues for our consideration:

POINT I

THE TRIAL COURT'S TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF THE EVIDENCE AND TESTIMONY

A. THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT DYFS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO THE MOTHER TO CORRECT THE CIRCUMSTANCES THAT LED TO MYA'S PLACEMENT OUTSIDE OF THE HOME After carefully reviewing the record and arguments of counsel, we conclude that these arguments lack merit.

A trial court decision to terminate parental rights is subject to limited appellate review, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007), and will not be disturbed "when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). See also Cesare v. Cesare, 154 N.J. 394, 413 (1998)("Because of the family courts' special . . . expertise in family matters, appellate courts should accord deference to family court factfinding").

N.J.S.A. 30:4C-15.1(a) authorizes the Division of Youth and Family Services (DYFS) to petition for the termination of parental rights in the "best interests of the child" if the following standards are met:

(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.

After presiding over the trial, Judge Elaine L. Davis carefully considered each of these prongs and cited adequate, substantial evidence in the record to support her conclusion that each of the prongs had been proven by clear and convincing evidence. The evidence is described in detail in Judge Davis's oral opinion and need not be recounted at length here. We note the following salient facts.

The family first came to the attention of DYFS in 2004. There were several investigations for allegations of neglect based upon the conditions in the home, which were not substantiated. Defendants' home was described as in continuous squalor, with dirt, garbage and clothes strewn everywhere. Neither parent exercised control over the children, who ran about, threw things at each other, and were generally wild. As Judge Davis observed, M.M.'s biological mother, K.M., "was overwhelmed due to the number of small children that she had in her care at one time."

M.M. was born July 23, 2001. On March 23, 2005, when M.M. was three years old, she was severely injured while in the care of K.M. Both parents knew that the stove in the kitchen was freestanding and not secured to the wall. Nonetheless, M.M. was permitted to wander into the kitchen, unsupervised, where she opened the door to the stove and climbed on top. The stove wobbled, causing a pot of boiling stew to fall onto M.M., who suffered second and third degree burns on forty per cent of her body. She was rushed to the hospital in critical condition and remained hospitalized for approximately five months. When the accident occurred, A.M. was at work and K.M. was watching her own children and three neighborhood children.

The matter was referred to DYFS. Following an investigation, DYFS concluded that the injury was the result of an accident but substantiated neglect against K.M. through lack of supervision. M.M. was classified as a medically fragile child who required a meticulous daily regimen for the foreseeable future to care for her needs. In June 2005, while she was still hospitalized, DYFS filed for custody of M.M.

Based upon the family's history and the "grievous injury" suffered by M.M., Judge Davis concluded that there was substantial and credible evidence to support the conclusion that M.M.'s health, safety and development were harmed by her relationship with defendants:

It is clear to the Court that the harm to the child was a direct result of [K.M.'s] failure to supervise and both parents['] failure to secure a dangerous element in a home with small children who are characterized as wild, undisciplined, hitting and kicking each other, throwing things at each other and that general roughhouse behavior apparently condoned by both parents.

The evidence was plainly sufficient to satisfy the first prong of N.J.S.A. 30:4C-15.1(a), that M.M.'s safety, health or development both was and will continue to be endangered by defendants' failure to provide adequate supervision and care.

The second prong requires clear and convincing evidence that 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." N.J.S.A. 30:4C-15.1(a)(2).

Immediately upon M.M.'s release from the hospital, she was placed with her foster parents and has lived continuously with them since August 2005. Her foster mother is a specialized home service provider who has been trained to care for children with special medical needs.

Initially, DYFS's goal was to reunite M.M. with her biological parents. Based upon the circumstances of this referral and prior referrals that had not resulted in substantiations of abuse or neglect, DYFS identified the issues that defendants had to address for reunification to go forward. First and foremost, defendants had to be trained to attend to M.M.'s special needs as a medically fragile child. There were also basic issues concerning the stability and safety of defendants' home. Inspections of defendants' homes since the accident have revealed a continuing pattern of unsafe and unsanitary conditions. Reports of DYFS visits to the home also stated that defendants' other children were unruly, aggressive and undisciplined by either parent. Accordingly, DYFS identified the following goals to be met to permit reunification: Defendants had to learn to maintain a safe, clean home; find a stable source of income to provide for the family's food and shelter needs; and address mental illness issues. In addition, A.M. required counseling for anger management and domestic violence.

The record shows that DYFS provided assistance, services, and resources designed to help defendants meet these goals. These included purchasing beds for the children, who had been sleeping on mattresses on the floor; parenting classes; daycare, homemaker and housekeeping classes. Judge Davis explicitly measured DYFS's actions against the criteria for "reasonable efforts" set forth in N.J.S.A. 30:4C-15.1 and found that defendants thwarted DYFS's substantial efforts. K.M. did not seem to benefit from the services. As for A.M., Judge Davis stated that, although he cooperated in some of the services, he began to constantly fight against the balance of those services. He became violent with the Division. He had to be removed from the Division office, the police had to be called on one or two occasions.

He personally threatened Division workers.

So the efforts that the Division made were constantly being thwarted by an inability to accept services, a violent hatred towards the Division, a threatening attitude towards the Division and an inability to come to grips with what was going to be necessary for him to even attempt to get his child back in his custody.

His reluctance to cooperate is a constant reaffirmation of his inability to grasp the seriousness of the situation. And also, an indication in the numerous reports of his inability to accept any blame for the consequences of his actions.

Judge Davis also noted the futility of the efforts to teach defendants to maintain safe and sanitary conditions in their home:

There seemed to be no help that could be provided that would abate the situation. If the homemaker went in and insisted on cleaning the house which was then done, the next time they visited it was in the exact same situation again.

It just kept happening again and again. With no recognition or no ability to understand that such a chaotic household that at one point had mice on the floor eating the food that had been dropped by the children, the children having no table to eat on and actually ate their meals on a mattress, the children having dirty clothes to the extent where one of the children was sent home from school and was told that they could not wear their uniform to school anymore because it was so dirty that it was disruptive to the class.

Judge Davis concluded that there had been "little or no change in [defendants'] ability to deal with the situation" that caused DYFS to intervene, and that, in fact, some of the conditions worsened.

Judge Davis's findings on the second prong of the "best interest" test was supported by the evidence provided by the psychologists who were engaged to evaluate defendants.

Rachel Julitz Nelson, a psychologist engaged by the law guardian, reported that K.M.'s emotional issues occasioned six psychiatric hospitalizations early in her adolescence. Although K.M. had been prescribed medication to treat her depression, she had chosen not to fill the prescription, explaining that she did not need the medication.

In her interview with Dr. Nelson, K.M. routinely minimized her responsibility for her own actions, offering convoluted justifications for conduct such as failing to provide any dental care for her children for years. She blamed M.M.'s accident on factors beyond her control and she "did not have the foggiest notion" of the extent of care that M.M. required. Dr. Nelson opined that K.M. was "a depressed and overwhelmed woman with mild psychomotor retardation who has limited capacity for empathy and who does not understand [M.M.'s] emotional or medical needs." She concluded that K.M. would be unable to parent M.M. for the foreseeable future or to follow instructions for her medical care.

The evidence regarding A.M.'s ability to adequately parent M.M. was equally unpromising. He began to physically abuse K.M. within days of their marriage and was jailed for domestic violence. Dr. Nelson opined that A.M. appeared "to regard [M.M.] as a possession that was stolen from him" and was "so pre-occupied with reclaiming what belongs to him" that he failed to understand the need to maintain a healthy relationship with her or to submit to an evaluation. Dr. Frank J. Dyer, was engaged by DYFS to conduct bonding evaluations of M.M. with A.M. and K.M. and psychological evaluations of both defendants. He stated that A.M. lacked any insight into his psychological or parenting problems, and concluded that M.M. would be placed at a significant risk of psychological and possibly physical harm if returned to his custody.

A.M. was plainly resistant to a psychological evaluation by Dr. Nelson, canceling one appointment, rejecting as inconvenient other appointments and finally, failing to show for an appointment scheduled to accommodate his schedule.

Both Dr. Nelson and Dr. Dyer testified that defendants' prognoses for positive change, even with treatment and motivation, were poor.

Dr. Nelson was unable to perform a bonding evaluation between M.M. and defendants because they canceled the first appointment and failed to show for two other appointments. Notably, when M.M. appeared for the appointments, she "expressed great joy" when she learned that defendants would not attend.

M.M. has expressed fear of A.M. and of telling him that she does not want to return to live with him. The bonding evaluation with M.M.'s foster parents revealed a "very lovely, normal interaction of parents with a child" and a very strong bond between M.M. and her foster mother.

Judge Davis concluded that both the evidence and the testimony in this case overwhelmingly displays the birth parent[s'] inability to provide a safe and stable home and placing this medically fragile child back in a home plagued with poor housekeeping, poor sanitation, undisciplined children, a continuous reluctance to abate would place the child in harm's way.

We agree that there was clear and convincing evidence of defendants' unwillingness and/or inability to eliminate the harm facing M.M. and to provide a safe and stable home for her. Further, the evidence of M.M.'s attachment to her foster family and lack of attachment to defendants, even rising to the level of fear of A.M. clearly and convincingly demonstrates that a delay in permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2).

The third prong of N.J.S.A. 30:4C-15.1(a) requires clear and convincing evidence that the Division made reasonable efforts to provide defendants with the resources necessary to correct the circumstances necessitating removal. As noted previously, DYFS made extensive efforts to provide defendants with assistance and resources and the effectiveness of those efforts was continually thwarted by defendants' inability or unwillingness to recognize their needs and benefit from the services offered. We are satisfied that there was ample evidence presented to satisfy this prong.

The last prong of N.J.S.A. 30:4C-15.1(a) requires proof that termination will not do more harm to M.M. than good. As Judge Davis observed, the evidence showed that the bond between M.M. and her mother "is tenuous at best." K.M. did not visit M.M. while she was in the acute care facility and expressed a willingness to surrender her parental rights to M.M. if the foster mother would allow annual visits. M.M. was genuinely fearful of A.M., and repeatedly stated that he had threatened to kidnap her. Indeed, his visits with M.M. were suspended by court order in June 2008. Dr. Nelson opined that returning M.M. to defendants would have a "devastating" effect on her.

In contrast, as Judge Davis noted, M.M.'s foster family provides a safe and secure home where she is "with people that she loves and love her and are ready, willing, and able, to adopt her." M.M. "has told everyone who has asked her that this is her wish." We are satisfied that, as Judge Davis concluded, the evidence clearly and convincingly established the fourth prong.

Affirmed.

20110111

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