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New Jersey Division of Youth and Family Services v. L.F.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 25, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
L.F., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: A.F., T.F., AND S.F.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, No. FG-21-103-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 16, 2010

Before Judges Wefing, Payne and Koblitz.

L.F. is the mother of three children--Ann, now seventeen years old; Tom, now sixteen; and Susan, now twelve.*fn1 She appeals from a trial court judgment terminating her parental rights with respect to these children. The children's father, P.F., died in a motor vehicle accident prior to the filing by the New Jersey Division of Youth and Family Services ("DYFS") of its guardianship complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The first referrals to DYFS with respect to these children occurred in May 1997, alleging that L.F. often left the children unsupervised, hit Ann and Tom with a belt and pulled their hair and ears. L.F. attributed the referrals to neighbors with whom she was having trouble, and DYFS was unable to find any substantiation. L.F.'s next contact with DYFS was five years later, in May 2002, when it received a referral that L.F. left the children alone each day for twenty minutes when she drove her husband to work. L.F. refused to admit the caseworker to the house; eventually, she permitted the children to speak to the worker outside. Tom, who was then seven, admitted that he would care for three-year-old Susan when his parents were gone. Susan suffered from "global developmental delays," and thus caring for her entailed more than might otherwise be involved. She has been diagnosed as profoundly retarded, could not speak and needed help eating. The caseworker tried to speak to defendant to give her guidelines for supervising children; defendant replied that she did not need them because she got her "guidelines from Jesus."

Defendant's next involvement with DYFS was in 2005; DYFS received a series of referrals alleging abuse of the children, including beatings; that Ann was demonstrating sexualized behavior with other children; and that L.F. would lock the children out of the house and refuse them food unless they begged God for forgiveness. L.F. repeatedly refused to permit a DYFS caseworker to enter the home. When a DYFS worker interviewed Ann and Tom at school, L.F. screamed at the DYFS worker for doing so.

In October 2005, DYFS filed a complaint under Title 9. The trial court ordered the parents to permit DYFS to have access to the home and to cooperate with DYFS in its investigation. In November, Tom threatened to kill the school principal; when L.F. learned of this threat, she responded by going to the school and threatening to get a gun to shoot her neighbors. L.F. had to be taken in handcuffs to a crisis center for evaluation. The school refused to permit Tom to return until he received a psychological evaluation. L.F. refused to comply with this request and withdrew both children from school and home-schooled them for several months.

In January 2006, the police went to L.F.'s home, having received a report that Ann was out of control. Defendant was holding her to restrain her physically and told the officers that Ann's doctor had told her to give Ann one of defendant's Xanax tablets so she gave the girl two. Ann was taken to the hospital where her blood tested positive for Xanax. Ann's doctor denied speaking to defendant or telling her to give the child Xanax. Both L.F. and her husband were arrested in connection with this incident, and L.F. was charged with endangering the welfare of a child, distribution of a controlled dangerous substance and child abuse and neglect. She eventually entered a negotiated plea of guilty to the latter offense, a fourth-degree crime, and was placed on probation for three years.

L.F. remained in custody for almost two months after her arrest, and DYFS obtained an order granting it temporary custody of the children. The children were placed in foster homes, Ann and Tom in one home, Susan in another. When the DYFS caseworker went to the home to retrieve the children for placement, she found it in a filthy condition, with animal feces on the stairs. The children's condition was similarly deplorable.

Defendant underwent psychiatric evaluations in May and August 2006. She was diagnosed with adjustment disorder with anxious and depressed mood and personality disorder with paranoid and obsessive features. Both Ann and Tom received psychological evaluations in June 2006; Ann was thirteen, Tom eleven. Both were diagnosed with adjustment disorder with mixed anxiety and depressed mood and began to receive individual counseling.

DYFS's goal at this time was to reunify the family, and Susan was returned to L.F.'s care in September 2006. Defendant was provided with assistance through Family Preservation Services to help with the care of Susan. Initially, her care was appropriate. Ann and Tom returned home in February 2007. A week after their return, their pediatrician called DYFS to say that L.F. was overwhelmed. She refused to follow through with the counseling schedule that had been set up for the family; DYFS adjusted the schedule in an attempt to meet her complaints about the time constraints the original schedule imposed. As time went on, however, she continued to reduce the counseling sessions and did not follow up on DYFS's instruction to obtain individual therapy for Tom.

L.F.'s behavior continued to deteriorate. She made unsupported allegations against the children's paternal grandparents, contending they were using a global positioning system to make her computer crash. Family Preservation Services terminated defendant due to her refusal to participate in the program. The worker assigned to L.F. described her as becoming "increasingly paranoid and vengeful toward service providers and DYFS."

The care she provided to Susan also deteriorated. In May 2007, workers at Susan's school reported that she often arrived in a dirty and disheveled condition, and often with a sippy cup containing spoiled milk.

Defendant's failure to comply with DYFS's recommendations was a violation of the terms of her probation, and she was again incarcerated. In May 2007, DYFS obtained another order permitting it to again remove the children from her custody. The DYFS worker who went to L.F.'s home to collect the children's belongings again found it in deplorable condition, smelling of cat urine and with mold growing in the kitchen. Clothes were strewn throughout the house, and there were no sheets on Tom's bed.

All three children went to the same foster home in which Ann and Tom had lived previously. Tom told his foster mother that L.F. would often come home very late at night, intoxicated, and that she would leave Susan in Ann's care on weekends, when she went out to meet men. Ann was fourteen at the time and had a boyfriend who was eighteen. L.F. raised no objections and permitted him to sleep over.

Initially, after the removal of May 2007, DYFS arranged for L.F. to visit with the children, but this visitation was eventually terminated at their insistence. A visit in September had to be stopped when it degenerated into fighting. A visit was scheduled the following week, and the children told the caseworker they did not want any more visits. That visit, already scheduled, proceeded but came to an abrupt end; the DYFS caseworker wanted to see a piece of paper that L.F. was demanding the children sign. Defendant picked up a chair and threw it down the hall and yelled at Ann, "Ok-I'm not your mother. I don't want to visit with you anyway. I'll visit with [Susan.]" Ann ran from the room and had to be restrained. L.F. denied this incident ever occurred.

L.F. did, during this time frame, participate in several parenting classes and attended eleven sessions of individual therapy. She told the therapist, however, that she did not believe she needed therapy and that her only problem was justified anger. The therapist recommended terminating the sessions, believing it would be of no benefit to L.F. in such a context.

L.F. knew the location of the foster home in which the children were living and how to contact the family. In January 2008, she called the foster mother's adult son and told him she was going to kill herself that night and go to heaven and report to the children's father how they had treated her. The foster mother told DYFS that L.F. would repeatedly drive past her home, beeping the horn. The trial court ordered her to have no contact with the children. Despite that order, she sent the following e-mail to Ann:

DON'T BE A HATER? WHAT R U HATE ME YOU'RE A USER, HAVE FUN BEING SOMEONE ELSES DAUGHTER, I REALLY DID LOVE YOU, I WOULD OF DONE ANYTHING FOR, I'M THROWING YOURS AND [TOM'S] STUFF OUT AND SELLING THE REST, SO I HAVE A PLACE TO LIVE, LOVE YOUR PILLOW THAT YOU SLEEP ON, GOOD BYE FOREVER, HATE IS A STRONG WORD, I HOPE YOUR KIDS REALLY SHOW YOU HATE, SO YOU KNOW I HAVE NOTHING TO LIVE FOR ANYMORE, I AM GOING TO KILL MY SELF TONIGHT, SO TELL EVERYONE NO NEED FOR THURSDAYS VISIT, I LOST YOUR DAD AND NOW EVERYONE IS GONE, SORRY NO MONEY I AM LEAVING IT TO SOMEONE WHO CARES NOT YOU KIDS. GOOD BYE FOREVER.

A few days later, she sent a second e-mail that said, "You say you love my husband your father . . . what kind of daughter are you, you think hes proud of you i don't[.]"

Alan S. Gordon, Ed.D., testified on behalf of DYFS at the guardianship trial. He had evaluated L.F. in August 2007 and again in May 2008. He diagnosed her as having histrionic personality disorder, narcissistic personality disorder with obsessive and compulsive traits, and paranoid personality functioning. His test results "indicate[d] an individual who tend[ed] to be narcisstic, paranoid, [had] difficulty trusting others, and constantly [felt] that people [were] trying to do her harm." He testified that these traits interfered with her ability to parent because they prevented her from looking at the children's needs, as opposed to her own.

Dr. Gordon conducted another evaluation with the children present. Before Susan arrived, L.F. told him that Susan would run to her because she missed L.F. so much. However, he testified that when Susan did arrive, the child became hysterical upon seeing her mother, and when L.F. tried to pick her up, Susan tried to get away. When Ann and Tom arrived, he described the scene as "yelling, screaming [and] hysteria." After two minutes, Ann walked out and vomited.

Dr. Gordon talked to Ann and Tom outside of L.F.'s presence, and he was unable to get them to agree to meet with her again. He testified that he had been doing bonding evaluations for thirty-eight years and that in that entire time, he had never encountered such a situation. He concluded that there was no bond between the children and L.F. and that L.F. would be unable to make the changes that would be necessary to permit her to parent them. In view of his conclusion that no bond existed, he found that the children would not experience any harm from the termination of L.F.'s parental rights.

Dr. Gordon also conducted a bonding evaluation of Ann and Tom with their foster mother and her fiancee. He described the situation as "180 degrees different" than what he had encountered with L.F. He said the children were "warm," they laughed and they interacted. Ann referred to the foster mother as "my real mother." Dr. Gordon testified that a real bond existed between Ann, Tom and the foster mother and that they would experience "grave harm" if that bond were to be broken. Both children were adamant that if there were an attempt to remove them from the foster home, they would run away.

The children's Law Guardian arranged for another series of psychological evaluations to be conducted by Peter DeNigris, Psy.D. Dr. DeNigris was unable to perform a bonding evaluation of L.F. with Ann and Tom because the children would not participate in one. He did interview L.F. and gave her a variety of tests. He concluded that L.F. was not able to parent the children because of her difficulty in interacting with others, her difficulty in accepting viewpoints other than her own, and her self-defeating practices. In his judgment, Ann and Tom would experience harm if they were returned to L.F.'s care and custody and would not suffer any harm from the termination of L.F.'s parental rights. DeNigris conducted a bonding evaluation of the children with their foster mother and found a healthy, secure bond.

The trial court interviewed both Ann and Tom in chambers. Ann told the court her mother had beaten her and had thrown things at her. Both children were emphatic with respect to their desire to remain with their foster mother and not return to L.F. Their foster mother wished to adopt them, and they wished the adoption to proceed.

The foster mother found herself unable to meet all of Susan's needs in light of the extent of her developmental problems.

In October 2008, Susan was placed in a "mentor" home. Ann and Tom's foster mother indicated that she planned to continue the contact of the older two children with their younger, disabled sister.

At the conclusion of the trial, the trial court issued a written opinion, setting forth its findings of fact and conclusions of law in support of its determination that L.F.'s parental rights should be terminated. This appeal followed.

On appeal, L.F. raises the following contentions for our consideration:

POINT I THE ELEMENTS OF N.J.S.A. 30:4C-15.1 WERE NOT PROVEN BY CLEAR AND CONVINCING EVIDENCE

(A)

THE HARM EXPERIENCED BY THE CHILD IN THIS CASE WAS LIMITED TO ONE ADMINISTRATION OF A PRESCRIPTION MEDICATION TO ONE OF THE CHILDREN

(B) L.F. COMPLETED NUMEROUS SERVICE PROGRAMS PROVIDED BY THE DIVISION, DEMONSTRATING HER ABILITY AND WILLINGNESS TO RESUME PARENTING HER CHILDREN

(C)

THE LEGAL CONCLUSION THAT THE DIVISION MADE "REASONABLE EFFORTS" TO PROVIDE SERVICES TO

L.F. WAS ERRONEOUS

(D)

TERMINATION OF L.F.'S PARENTAL RIGHTS WILL CAUSE MORE HARM THAN GOOD POINT II THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE STATEMENTS OF THE CHILDREN WITHOUT CORROBORATION AND AN UNAUTHENTICATED E-MAIL PURPORTEDLY FROM L.F.

TO HER CHILDREN.

The law governing our analysis of these contentions is well-known. Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). However, the constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).

Under N.J.S.A. 30:4C-15.1(a), DYFS can initiate a petition to terminate parental rights on the grounds of 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.

"The four criteria enumerated in the best interests standard 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.

Termination of parental rights permanently cuts off the relationship between children and their biological parents. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). When the biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. Ibid. The 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. Ibid. (citations omitted).

The scope of an appellate court's review of a trial court's fact-finding in a termination case is a limited one.

"Trial court findings are ordinarily not disturbed unless 'they are so wholly unsupportable as to result in a denial of justice,' and are upheld whenever they are 'supported by adequate substantial and credible evidence.'" Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988), quoting Rova Farms Resort & Investors Ins. Co., 65 N.J. 474, 483-84 (1974). An appellate court "may make new and independent findings of fact in cases tried without a jury, [citations omitted] but . . . 'when the result of the contest must turn on the truthfulness of the witnesses, the superior advantage of the trial judge in seeing and hearing and appraising the disputants must ordinarily be regarded as the fulcrum on which the issue should be resolved.'" Rubel & Jensen Corp. v. Rubel, 85 N.J. Super. 27, 39-40 (App. Div. 1964), quoting Abeles v. Adams Engineering Co., Inc., 35 N.J. 411, 423-24 (1961). [N.J. Div. of Youth & Family Servs. v. V.K., 236 N.J. Super. 243, 255 (App. Div. 1989), certif. denied, 121 N.J. 614, cert. denied, 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990).]

Defendant's contention that DYFS failed to establish the first prong of this test rests, in essence, on her view that she did no more than mistakenly give a prescription medication on one occasion to Ann. In our judgment, to articulate defendant's argument is to demonstrate that she fails to comprehend the impact her conduct has had upon her children. That a parent has not physically abused or neglected a child does not automatically entitle that person to retain his or her parental rights. A parent who withdraws solicitude, nurture and care from a child for an extended time may harm a child as much, if not more, than a parent who has physically injured the child. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). The "relevant inquiry focuses on the cumulative effect, over time, of harms arising from the home life provided by the parent."

N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 289 (2007). Here, the proof is overwhelming that Ann, Tom and Susan have all suffered serious harm as a consequence of defendant's psychological and emotional limitations. She simply lacks the ability to provide the care and stability these children need and deserve.

Similarly, we consider the proof presented with respect to the second prong, whether L.F. has cured or overcome the initial harm she caused to her children and is now able to parent them safely, to be equally overwhelming. Although she did attend some therapy sessions for herself, the therapist terminated them because of L.F.'s attitude. And she persistently refused to obtain needed counseling and therapy for the children, despite recurrent court orders that she do so.

We also reject defendant's argument with respect to the third prong. DYFS made continued and persistent efforts at first to reunite defendant with her children. That those efforts failed does not demonstrate their inadequacy.

Finally, it also is abundantly clear that these children would not suffer harm from the termination of L.F.'s parental rights. The greater risk would lie in uprooting these children yet again and returning them to L.F.'s care and custody.

With respect to L.F.'s second contention, challenging certain of the trial court's evidentiary rulings, we are satisfied that her arguments provide no basis to reverse this judgment. Dr. Gordon referred to and relied upon the e-mails that Ann received in forming his opinions in this matter, and he was properly permitted to testify about them. While L.F. objected to their admission at trial, she provided no evidence with respect to their authenticity. The proof in this case in support of termination of L.F.'s parental rights was overwhelming. The admission of these e-mails did not lead the court to a result it otherwise would not have reached.

L.F. also contends the trial court erred in conducting its in-camera interview of Ann and Tom. We consider the trial court's actions in connection with this interview proper in every respect.

The judgment under review is affirmed, substantially for the reasons stated in the trial court's written opinion of June 30, 2009.

Affirmed.


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