On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-18-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011 - Decided
Before Judges Graves, Messano and Waugh.
Defendant N.M. appeals from the termination of her parental rights to her son D.M.M. She raises the following points on appeal:
POINT I -- THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE TERMINATION OF PARENTAL RIGHTS BASED ON A "PROPENSITY FOR UNFITNESS" IS IMPROPER WHEN THE DIVISION IS UNABLE TO PROVE THE STATUTORY CRITERIA OF THE BEST INTERESTS TEST.
UNDER N.J.S.A. 30:4C-15.1 CRITERIA, THE DEFENDANT DID NOT HARM D.M.M. AND WAS NOT PARENTALLY UNFIT.
AS A RESULT OF THE INSTITUTIONAL BIAS AND UNSUPPORTED HEARSAY THAT APPEARS IN THE RECORDS OF ITS SERVICE PROVIDERS, THE DIVISION WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.
THE ABSENCE OF UP-TO-DATE BONDING EVALUATIONS FATALLY UNDERMINED THE TRIAL COURT'S FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD. POINT II -- THE JUDGMENT OF GUARDIANSHIP TERMINATING THE DEFENDANT'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S FINDINGS WERE BASED ON THE UNTRUSTWORTHY AND UNAUTHENTICATED RECORDS OF THE DIVISION'S SERVICE PROVIDERS.
POINT III -- THE DEFENDANT'S RIGHT TO A FAIRLY CONDUCTED GUARDIANSHIP TRIAL WAS PREJUDICED BY THE DEPUTY ATTORNEY GENERAL'S USE OF A SPECIOUS HYPOTHETICAL QUESTION BECAUSE IT PERMITTED DR. LOVING TO RENDER AN INADMISSIBLE "NET OPINION" BOLSTERING THE DIVISION'S THEORY OF THE CASE (NOT RAISED BELOW).
We have considered these arguments in light of the record and applicable legal standards. We affirm.
N.M. has had four children with M.A.M. The couple's parental rights to their two oldest children -- M.A.M., Jr., who was born on March 31, 2004, and M.H.M., who was born on January 31, 2005 -- were terminated in North Carolina in November 2005. The couple's fourth child, A.M., was born while this litigation was pending, and defendant and M.A.M. executed a voluntary surrender of their parental rights. A.M. remains in the custody of M.A.M.'s grandmother, D.M., and he is not a subject of this appeal.
D.M.M. was born in Woodbury, New Jersey, on August 11, 2006. He was diagnosed at birth with congenital tracheoesophageal fistula and esophageal atresia/stenosis.*fn1 On
August 12, he was transferred to Children's Hospital of Pennsylvania (CHOP) where he underwent surgery to correct the atresia. D.M.M. also suffers from Feingold Syndrome, a rare genetic disorder referred to as "old man's disease," which causes esophageal atresia and abnormalities in the fingers and toes and will likely shorten D.M.M.'s life.
On August 15, 2006, the Division of Youth and Family Services (DYFS or the Division) received a call from Paul Wisner of the Department of Human Services in Philadelphia. He had been contacted by a social worker from North Carolina who informed him that defendant's two older children had been removed from her care due to feeding issues, M.A.M.'s aggressive behavior and the possible mental disabilities of both parents. Wisner expressed concern as to the couple's ability to care for D.M.M. upon release from CHOP.
DYFS requested that D.M.M.'s discharge be delayed until a caseworker could interview defendant and M.A.M. The interview took place on August 17. When questioned about the loss of their parental rights to their two sons in North Carolina, the couple explained that one of their sons was removed from their custody because he failed to thrive due to acid reflux. They further claimed that their other son was removed because M.A.M. threw a shirt at defendant that inadvertently landed by the baby. M.A.M. acknowledged that he had been diagnosed with bipolar disorder and had been prescribed a number of psychotropic medicines.
On August 24, 2006, DYFS filed a complaint for care and custody of D.M.M., which was awarded that same day. Defendant and M.A.M. were ordered to complete psychological and psychiatric evaluations and participate in parenting classes.
On September 1, 2006, D.M.M. underwent surgery at CHOP to repair the fistula. He was discharged on September 6, 2006, to a foster parent, D.F., who was designated by DYFS as a special home service provider. D.F. also had custody of three other foster children, the two oldest of whom she was in the process of adopting.
Defendant was psychiatrically evaluated at the Genesis Counseling Center by Teresa Humaran, M.D. Defendant acknowledged that her parental rights to one of her older sons were terminated because he was diagnosed with failure to thrive. She explained that although she believed she was doing the right things, she simply "did not understand certain things such as feeding 'because she was a new mother.'" Humaran recommended further psychological testing to evaluate defendant's intellectual functioning.
On October 3, Genevieve Chaney, Psy.D., performed a psychological assessment of N.M. Testing revealed defendant's IQ score to be 67, "plac[ing] her overall estimated intellectual abilities at the upper end of the Extremely Low range." Chaney opined that defendant's intellectual limitations called into question defendant's reasoning and judgment, with "[h]er ability to evaluate situations, weigh varying outcomes or actions, and then make sound decisions and respond appropriately . . . likely negatively effected." Chaney concluded that defendant would "function best in a highly structured environment."
While Chaney noted that defendant was aware of D.M.M.'s medical condition and "demonstrated basic awareness of milestones in child development," the termination of defendant's parental rights with respect to her two oldest children "raise[d] concerns about her overall parenting abilities." Defendant's slower learning pace could leave her overwhelmed with respect to caregiving, particularly in light of D.M.M.'s medical problems. Chaney diagnosed defendant with Axis II borderline intellectual functioning and concluded that "with support and preparation" she would have "the ability to serve as a caretaker for her son."
Meanwhile, on September 8, DYFS informed defendant and M.A.M. that based upon its investigation, allegations of child neglect were unfounded. DYFS indicated that it would continue to provide services to the family, and defendant and M.A.M. began parenting classes at FamCare. Although they completed the program by November, FamCare's director of education was "unable to assess their true parenting ability because of their limited participation." She recommended individualized parenting counseling, and DYFS referred the couple to The ARC, where individualized classes commenced in January 2007.
At the time, defendant and M.A.M. were sharing an apartment with D.M. The ARC worker and the Division's caseworker noted in home visits that the apartment "was in disarray, cluttered and dirty." The Division's caseworker described defendant and M.A.M as "limited in their abilities" and unable to "carry over what they learned into daily practice."
Defendant and M.A.M. were permitted weekly medically supervised visitation with D.M.M. in their apartment. The ARC worker believed it was unsafe for defendant to carry D.M.M. around because of the number of items on the floor, and, although she worked with defendant to straighten up the apartment, it would be cluttered again by the next visit.
A nurse who attended D.M.M.'s visits reported concern about defendant's ability to care for D.M.M., referencing one incident during which defendant left the boy on a table unattended and D.M. caught him before he rolled off. It was noted that defendant and her mother, who was suggested as a possible alternate custodian for the child, had "very little interaction with" D.M.M. during his visits.
D.M.M. would be taken to his medical appointments by his foster parent who, on occasion, asked defendant to accompany her. On one visit, D.F. permitted defendant to speak to the doctor alone. When she asked defendant what the doctor had said, defendant "laughed and said that she could not remember." Defendant's ignorance of the seriousness of D.M.M.'s medical condition was also reported in April 2007 by the child's supervising nurse. She claimed that defendant and M.A.M. were "clueless about caring for" the child. The nurse explained that although she instructed defendant how to hold the child, she would nevertheless hold him by his arms in an attempt to make him walk. The nurse heard defendant tell the child that "he need[ed] to hurry up and walk because she [did] not intend to carry him," and she saw defendant try to feed the child a cough drop, something that was not medically advisable, given his condition.
On May 18 and 22, 2007, defendant and M.A.M. underwent a parental capacity evaluation conducted by Janet Cahill, Ph.D., at Rowan University. Cahill initially noted that M.A.M. was not receiving the appropriate treatment for his mental illness --schizoaffective disorder, bipolar type -- and "should not have unsupervised contact with" D.M.M. At the time of the evaluation, defendant was six months pregnant with A.M. She explained that she had not thought about the difficulty involved in parenting two children born so close in time. Defendant was unable to identify D.M.M.'s doctors, medications, and physical conditions, but explained that she could feed the child and D.M. would help with the rest. Cahill determined defendant was unable to "describe normal developmental milestones for children" of D.M.M.'s age.
Defendant told Cahill that she was trying to secure her GED but her plans were on hold because her cell phone ran out of minutes while she was talking to a person from the Department of Education and she was unsure how to reach him again. She expressed some interest in obtaining an office job, although defendant also acknowledged that she did not wish to work.
Observing defendant's interactions with D.M.M., Cahill reported that she "engaged in few verbalizations with him[,] . . . did not look for appropriate toys for him[,] [and] did not inquire about his feeding schedule for the day." Defendant "appeared unusually passive and disinterested." Cahill noted that defendant was initially fairly responsive to [D.M.M.] but became more passive as the observation went on.
She appeared increasing[ly] bored and listless. She later verbalized that [D.M.M.] had wet his diaper. However, she made no effort to change it or to look for ...