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New Jersey Division of Youth and Family Services v. C.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 23, 2011

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
C.M., DEFENDANT-APPELLANT, AND R.B., DEFENDANT.
IN THE MATTER OF THE GUARDIANSHIP OF: L.B., K.B., C.B., J.B., AND G.B., MINORS.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FG-21-104-08.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 26, 2011

Before Judges Cuff, Sapp-Peterson, and Fasciale.

Defendant C.M. (Cathy) appeals from an order terminating her parental rights to her five children: L.B. (Lori), K.B. (Kate), C.B. (Carol), J.B. (John), and G.B. (Gail).*fn1 Cathy argues that the Division of Youth and Family Services (DYFS) failed to prove by clear and convincing evidence each of the four statutory prongs, N.J.S.A. 30:4C-15.1a, to allow termination of her parental rights. Persistent domestic violence between Cathy and R.B.,*fn2 Cathy's husband and the father of the children, and substance abuse by both parents are the root causes of the disintegration of this family. We remand to the trial court for further development of the record whether termination will not cause more harm than good to Kate and Gail.

In all other respects, the December 28, 2009 order terminating Cathy's parental rights to her five children is affirmed.

Cathy and R.B. are the biological parents of five children. Lori, the oldest, was born on October 2, 1996. Kate was born on January 21, 1998; Carol on January 8, 2001; John on December 11, 2005; and Gail on December 19, 2007. The family first came to the attention of DYFS in March 2003, when it received a referral from Lori's school. Lori, then six years old, appeared at school with a black eye caused when her mother pushed her. Lori later denied this account, as did Cathy. During the investigation of this referral, DYFS learned that Cathy had not taken the children for periodic medical appointments.

In July 2004, DYFS received three referrals concerning Cathy's treatment of Lori, Kate and Carol. The first referral reported that Cathy beat Kate. Cathy admitted hitting Kate with an open hand. The second referral reported that she locked the three girls out of the house for more than an hour. The caller also expressed concerns that Cathy was using cocaine and was being abused by R.B. He was incarcerated at that time due to a domestic violence incident involving Cathy. The third referral involved Lori. She had reported that Cathy punched her in the stomach, grabbed her hair and threw her to the ground. The caller also expressed concerns that Carol, then three years old, had been left unsupervised and that Cathy was using cocaine. During the investigation of this report, Cathy admitted that she endorsed spanking as a form of discipline. A DYFS worker counseled her for the second time about excessive corporal punishment.

A year passed before the next referral. On June 27, 2005, DYFS received a report that the three girls appeared bruised and sometimes seemed hungry when they came to the referrant's house. The referrant also reported the girls were unsupervised by their mother. DYFS never substantiated abuse or neglect but counseled Cathy about corporal punishment and noted "concerns" in various reports. After the June 2005 referral, DYFS decided the family required in-home services.

On October 21, 2005, DYFS received another referral concerning physical abuse of Lori. The caller reported that Cathy had hit Lori across the face with a belt, that domestic violence incidents occurred in the home, and that the children witnessed these incidents. On this occasion, the DYFS worker substantiated physical abuse of Lori by Cathy and neglect by R.B.

On November 27, 2005, DYFS received another referral. On this occasion, the caller reported continued domestic violence between Cathy and R.B., and crack cocaine use by both parents.

The caller also stated that the family had been locked out of their home and the three girls were left unsupervised. Although this incident remained unsubstantiated, a school social worker reported two days later that Kate appeared at school with a bruised face and reported that her mother hit her with an open hand. DYFS substantiated abuse by Cathy.

On December 11, 2005, Cathy gave birth to John. Mother and son tested positive for cocaine. In addition, Cathy had not obtained any prenatal care. Cathy gave conflicting statements whether she knew she was pregnant when she used cocaine. At the time of John's birth, the family had been evicted from their home and lived in a single room over a bar.

Lori, Kate, Carol, and John were removed the following day, on December 12, 2005. Lori's adjustment to foster care was terrible.*fn3 During the first year after removal, she resided in at least three foster homes. The other children adjusted more successfully to their placements. Carol and John were placed with a family, who planned to adopt both children. Kate and Gail were also successfully placed with a family who desired to adopt them.

Following the removal of the children, the extent of the family dysfunction, caused by Cathy's anger, the parents' drug and alcohol use, and domestic violence, emerged. Cathy testified at trial that she began using cocaine when she was nineteen years of age and started to use heroin in her 20s. She used methadone to address her heroin addiction and stopped methadone "cold turkey" in her 20s. On May 21, 2009, Cathy testified that she had been sober for exactly three years; that is, she regained sobriety when she was forty-two years old.

Cathy also acknowledged that R.B. had physically abused her but did not realize his capacity for violence until she became pregnant with Lori. She admitted that the longer she stayed with him, the harder it became to leave him.

R.B., on the other hand, refused all services. He explained that he declined services because he was annoyed that DYFS took his children. He minimized his alcohol use and the various domestic violence incidents with Cathy. The caseworker, who performed a risk assessment of R.B., opined he posed a risk of harm to his children due to his minimization of difficulties within the family caused by substance abuse and violence and his criminal history of assault, robbery and domestic violence.

Cathy entered inpatient drug treatment in May 2006 and completed intensive outpatient services in November 2006.

Following inpatient treatment, Cathy attended individual therapy sessions but could not attend group sessions due to difficulties with her work schedule and transportation. At the time of trial in Spring and Summer 2009, Cathy was enrolled in Alcoholics Anonymous, attended regularly, and had a sponsor. She also participated in counseling through Sunrise House. After completing inpatient treatment, Cathy was employed as a cosmetics salesperson at a department store. At the time of trial, she was cleaning houses. Cathy also testified that she was trying to restore her hairdresser's license and her driver's license. The latter license had been suspended for excessive surcharges. She also reported that she had been an Avon salesperson.

Due to Cathy's perceived progress, the court ordered reunification with Lori and with the other children when their therapists thought it was appropriate. The conditional nature of Kate's and Carol's return was based on disclosures made to their therapists. Kate expressed concern about her physical safety due to physical abuse by Cathy in the past. Kate's therapist diagnosed Kate with Attention Deficit Hyperactivity Disorder, Reactive Attachment Disorder and Post-Traumatic Stress Disorder. Her DYFS caseworker and her therapist decided that Kate would not be returned to Cathy's care until she was no longer afraid to go home.

Carol also expressed concerns about going home. Her concerns were grounded in past corporal punishment and fear that her mother could not stop hitting her. In addition, during treatment due to her sexually inappropriate behavior, a neurodevelopmental evaluation diagnosed Carol with difficulty sleeping, short attention span, impulsivity and academic delays.

Lori returned to her mother's care almost one year after her removal. During this year separation, Lori was in at least three foster homes. The reunification was short-lived.

Soon after reunification, DYFS received information from Lori that caused it to believe that R.B. was in the house contrary to the reunification plan. In February 2007, Lori confirmed that R.B. was spending time in the house and that he was threatening her and making her feel uncomfortable. The caseworker confirmed that day that R.B. was in the house. Cathy reported she had called him to the house to help her discipline Lori. By April 2007, DYFS confirmed that R.B. had been living with Cathy and Lori since December, and Lori was removed from the house. Once Lori was removed, the court suspended the plan to return Kate and Carol to Cathy.

Following Lori's second removal, Cathy had supervised visits with four of the five children. During these visits, Cathy interacted primarily with Kate and Carol.

Lori did not participate in these visits. In May 2007, she was removed from a foster home and taken to the emergency room following homicidal and suicidal threats. She was ten years old. Her diagnosis on admission was adjustment disorder with mixed disturbance of emotions and conduct. Later, she was diagnosed with depression, with conduct disorder, and severe psychosocial stressors, long history of abuse, removal from her parents, separation from siblings and frequent foster placements. At the time of trial in Spring and Summer 2009, Lori was in a residential treatment center. We are informed that Lori was placed in a therapeutic foster home in May 2010.

Following Lori's second removal, Cathy participated in a second psychological evaluation. During this evaluation, Cathy admitted she continued to live with R.B. in spite of the impact of this relationship on her children and her inability to have her children in her care as long as she lived with him. Therefore, on August 1, 2007, the court altered the permanency plan from reunification to termination of parental rights. Gail was born on December 19, 2007; she, too, was removed from her parents' custody and care.

Prior to trial, a series of psychological and bonding evaluations occurred. Dr. Natalie Barone testified that Cathy has an impaired personality structure that consists of histrionic, narcissistic and anti-social traits. These traits compromised her ability to parent because they inhibited commitment to her children and self-sacrifice. She elevated her drug dependence and relationship with R.B. over the welfare of her children. Dr. Barone also opined that Cathy did not appreciate how the impact of substance abuse, unstable life style, and domestic violence contributed to the removal of her children.

Dr. Eric Kirschner, a psychologist retained by the Law Guardian, agreed that Cathy minimized the acknowledged problems that lead to the removal of her children. He opined that Cathy lacks the psychological capacity to parent her children and is unable to provide a stable home, a nurturing environment, and a feeling of safety for the children.

Dr. Barone also testified about the relationships between the children and their foster parents. Kate and Gail are in the same foster home. She stated that their foster parents seemed very nurturing and reinforcing. She observed interactions that resembled those of a healthy and secure parent-child attachment. Kate also seemed calm, respectful and affectionate towards her foster parents. This was in stark contrast with the evaluation of the girls with their mother. In that session, Cathy had difficulty controlling their behavior and seemed to encourage their anger at DYFS for denying them access to cell phones. Moreover, Barone testified that Kate told her that she preferred to remain with her foster parents than return to her mother.

Barone also testified that Carol and John have a positive bond with their foster parents. She opined that the foster parents were "mommy and daddy to them for all intents and purposes." John was talkative, animated and interactive with his foster parents. He sat close to them and appeared happy. This was in marked contrast to his visit with Cathy during which she paid little attention to him.

Lori, on the other hand, expressed a desire to return to her mother. At the time, Lori was in a residential treatment center and recognized that reunification with her mother might not be possible. She did identify one of the several foster homes in which she had resided as a possible placement.

The trial commenced in April 2009 and did not conclude until September 2009. During this period of time, the Division received a report that led to the removal of Kate and Gail from their foster home in July 2009. On August 26, 2009, the DYFS case supervisor for these children testified that the report was unsubstantiated but Kate did not return to the foster family until late September 2009 and Gail returned a few days later. Neither the August 26 nor September 23, 2009 transcripts reveal the nature of the problem, although the case supervisor referred vaguely to a medical issue that had to be addressed.

In her December 28, 2009 written opinion, the trial judge outlined the history of physical abuse suffered by Lori and Kate at the hands of Cathy and their father. She recounted the reports by both girls of repeated episodes of domestic violence, their attempts to break up fights, and their wish that their father would stop drinking. She noted the cocaine abuse by Cathy and the presence of cocaine in John at his birth.

In addition, the judge cited the housing instability experienced by the family at the time of John's birth and Cathy's admission that she used cocaine while caring for her children. The judge found that Kate and Carol could not be reunited with their mother because they lived in fear of further physical abuse. The judge also noted the failed reunification of Lori with Cathy, her removal in April 2007, and hospitalization a month later following suicidal and homicidal threats.

The judge found that Cathy's substance abuse and her physical abuse of her daughters caused them to be removed from her care. Her past abuse of the girls and her continued relationship with her physically-abusive husband prevented reunification because each of the girls did not feel safe in her care and prevented placement of John and Gail in her care. Furthermore, the judge did not find Cathy credible, and accorded little credence to the progress reported by Cathy in appreciating the harm she has caused and her acquisition of skills to avoid such harm in the future.

The trial judge found that DYFS provided reasonable efforts to address the problems that required removal of the children and to facilitate reunification. She identified risk assessments, psychological evaluations, substance abuse evaluations, in-patient drug treatment, intensive outpatient treatment, individual counseling, family counseling, supervised visits with the children, bonding evaluations and transportation services. Indeed, the judge found that DYFS provided extraordinary efforts to allow the parents to remediate the harm that led to the removal of their children.

Finally, the trial judge found that termination of Cathy's parental rights to each child would not do more harm than good. The judge found that John demonstrated no attachment to his mother. He may have considered her a playmate, but certainly not a caretaker. Carol might experience some sadness at the removal of Cathy from her life, but it would not endure. The judge found that Carol had a psychologically healthy relationship with her foster parents and future adoptive parents. The judge also found that placement of John and Carol in the same home was extremely important because they could maintain their sibling relationship.

The judge found that Gail views her foster parents as her psychological parents. She has never been in her mother's care. She also found that Kate does not have a secure attachment to her mother, fears her mother, and expressed a desire to remain in her foster home with her sister.

The judge found that Lori had the strongest bond with Cathy. Although neither Dr. Barone nor Dr. Kirschner believed that Lori enjoyed a healthy emotional bond or a secure attachment with her mother, both recognized that Lori would suffer some harm if her mother's parental rights were severed. Nevertheless, the judge found that "the only chance [Lori] has to finally establish a healthy, secure bond with a caregiver who can provide her with the structure and consistency she desperately needs is to sever [Cathy's] parental rights so that [Lori] can be placed with people who could be free to adopt her."

On appeal, Cathy argues that DYFS failed to prove by clear and convincing evidence that Cathy harmed John and Carol, that Cathy failed to cure any harm caused to her children, that termination of her parental rights would not do more harm than good to Lori, and that the record is not adequate to determine if termination will not do Kate and Gail more harm than good. Having reviewed this record in its entirely, we are satisfied that DYFS met its evidential burden as to all children on all issues other than the fourth prong as to Kate and Gail. We are also satisfied that the trial judge's findings of fact are well-supported by the record; and the law, as applied to these facts, requires termination of parental rights, except as to whether termination of parental rights will not do more harm than good to Kate and Gail.

N.J.S.A. 30:4C-15.1 codified the standards the Supreme Court established in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986). DYFS must establish 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 foster 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-15.1a.]

See also N.J. Div. of Youth and Family Servs. v. P.P., 180 N.J. 494, 506 (2004); A.W., supra, 103 N.J. at 604-11.

A mother's right to parent her own child is fundamental and constitutionally protected. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, that right is not absolute and must yield to protect a child's welfare. N.J. Div. Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591 (App. Div. 1996). "Notwithstanding their profound nature, parental rights are not inviolate when a child's physical or mental health is jeopardized." Ibid. (citing A.W., supra, 103 N.J. at 599). However, New Jersey courts have "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." Ibid. (citations omitted).

An appellate tribunal's review of the factual findings of a trial judge sitting without a jury is limited. This court reviews the record to determine whether the findings are supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We also should accord considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the facts are supported by the evidence, this court should not disturb those findings. Rova Farms, supra, 65 N.J. at 484. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

This record extensively documents and supports the finding that Cathy caused harm to her children and could not remediate that harm. She admitted that she used cocaine while caring for her children. However, Cathy's use of cocaine was only one aspect of the harm caused by her. Lori and Kate appeared at school bruised on several occasions. Cathy admitted using an open hand to discipline Lori and admitted she favored spanking as a means of discipline. Lori, Kate and Carol provided accounts of excessive drinking by their father and physical fights between their parents that they tried to stop. When Lori was reunited with her mother, she expressed fear of her father. Her sisters could not be returned to their mother's care because they were afraid of her and their father.

Cathy reported considerable progress, but the trial judge did not completely accept her credibility. Cathy's reported three year sobriety at the time of trial is commendable, but we must defer to the trial judge's credibility assessment. The trial judge is in the best position to evaluate the demeanor of a witness.

This record clearly demonstrates that DYFS extended many offers of assistance to Cathy and R.B. and provided many services. The children's father rejected all efforts. In fact, he accepted no responsibility for the disintegration of his family. Cathy has made progress but four years of separation could not dispel the fear held by her daughters or create any emotional attachment with John and Gail, who had never been cared for by their mother. DYFS also demonstrated by clear and convincing evidence that termination will not do more harm than good for Lori, Carol or John.

Lori's psychological situation is particularly tragic. As the oldest, she has the most attachment to her mother, but the record clearly demonstrates that Cathy cannot provide her with the structure and emotional security she needs. The record also reveals that Carol and John have an unsecure or no attachment to Cathy, but a healthy emotional attachment to their foster parents and potential adoptive parents.

As to Kate and Gail, however, we find the record on this issue incomplete. The bonding evaluation between Kate and Gail and their foster parents was positive. Both psychologists reported a firm and suitable emotional relationship between the children and this family. The difference between Kate's interaction with her mother and her foster parents was markedly different. When she was in the company of her mother and siblings, Kate was oppositional and defiant. In the company of her foster parents, she was respectful, plainly at ease and comfortable. Given these evaluations, we hesitate to disturb the relationship between Kate and Gail and their future family; however, the record contains unresolved issues that should have been developed at the trial. On August 26, 2009, the case supervisor testified that the agency had received a report that required Kate and Gail to be removed from their foster home. The case supervisor informed the court she did not know the nature of the problem but that an investigation revealed no substance to the report. However, the case supervisor could offer no information about the problem because she had not seen the report. Nevertheless, she was sure the children would and could be returned to the foster parents' home.

On September 23, 2009, the Deputy Attorney General reported that after two tumultuous months, Kate had been returned just days before to her foster parents and Gail was expected to return within days. Other than a statement that the report causing the removal was unfounded, the record is silent about the details of the incident.

Here, as in many cases, the prospect of an adoptive home is an integral part of the analysis of whether termination of parental rights will cause more harm than good. Faced with a situation in the designated home that required their removal and apparently caused particular emotional distress to Kate, we expect a more searching inquiry about the facts that required the removal. The case supervisor offered no information. The situation was compounded by representations from the attorneys a month later, who simply reported the return of the children but offered no admissible evidence, testimonial or documentary, to explain the circumstances requiring their removal for two months. We consistently respond to such situations by remanding to conduct an evidentiary hearing or to supplement the record with admissible evidence. N.J. Div. of Youth & Family Servs. v. S.S., 405 N.J. Super. 1, 7 (App. Div. 2008). We conclude such action is required here. We have repeatedly cautioned judges not to enter dispositive orders based on representations of counsel, inadmissible hearsay, and documents not admitted in evidence. Ibid.

Kate and Gail have suffered great harm due to their mother's use of cocaine, her penchant to discipline her children by hitting, punching, and pulling their hair, their father's excessive consumption of alcohol, and multiple incidents of domestic violence in their home. Kate lived in fear of further physical abuse; Gail could never reside with her family due to the harm imposed on her siblings. These children deserve more than representations from an attorney and a report from an uninformed supervisor. Kate's pre-removal history and the murky circumstances of their temporary removal from their foster family require further exploration at a hearing at which the circumstances that precipitated their removal are addressed by witnesses with actual knowledge of the incident and its impact on the children can be addressed.

We, therefore, order a remand limited to supplementation of the record regarding the July 2009 removal as it pertains to the fourth prong, i.e., whether termination of Cathy's parental rights will not do more harm than good to Kate and Gail. Following the hearing, the trial judge will supplement her findings of fact and conclusions of law on this issue as to Kate and Gail. We affirm the December 28, 2009 order as to Lori, Carol, and John.

Affirmed in part; remanded for further proceedings consistent with this opinion. Jurisdiction is retained.


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