April 8, 2011
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF E.M., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-114-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 23, 2011
Before Judges Axelrad, R. B. Coleman, and Lihotz.
S.T. appeals from a May 7, 2010 judgment of the Family Part terminating her parental rights to her then five-and-one-half-year-old son, E.M., and awarding guardianship to the Division of Youth and Family Services (DYFS) for the purpose of effectuating the child's adoption.*fn1 On appeal, S.T. argues DYFS did not prove by clear and convincing evidence the statutory prongs required to establish that her son's best interests required severance of her parental ties. In particular, mother argues that the evidence in the record pertains, in large part, to her two older children - her daughter C.S. and son, R.M., Jr. - who were placed by DYFS outside her home and were not named in the guardianship complaint. We note that the Law Guardian supports termination of S.T.'s parental rights to E.M.
After considering the record and briefs in light of the applicable law, 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. We instead provide a brief summary of the cogent facts we considered in concluding the judge's findings were well-supported by the record.
The following testimony and evidence were presented during the three-day trial in April 2010. DYFS presented the factual testimony of William Larrinaga, an adoption caseworker, and the expert testimony of Frank J. Dyer, Ph.D., who performed a psychological evaluation of S.T. and bonding evaluations of E.M. with both S.T. and his paternal grandmother, D.M. S.T. testified on her own behalf and presented the expert testimony of Albert R. Griffith, Ed.D., who performed a psychological evaluation of her and bonding evaluations of E.M. with both S.T. and D.M. S.T. has two other children who are not the subject of this action - C.S., born on April 30, 1994 and R.M., Jr., born on December 13, 1995. In September 2008, C.S. was placed in a residential treatment facility and R.M., Jr. was placed with his father. E.M. was born on September 12, 2004.
DYFS' involvement with S.T. and her family pre-dated E.M.'s birth. Both before and after, S.T. did not have stable housing. She also reported to DYFS an inability to handle the behavior of her daughter, C.S.
On February 13, 2008, S.T. contacted DYFS to request assistance as she was being evicted at the end of the month because her children damaged the home. S.T. did not follow up with the caseworker and DYFS did not have contact with the family until another referral was received on April 29, 2008. According to this referral, C.S. was hospitalized for homicidal and suicidal ideations. Similar to past hospitalizations and recommendations, S.T. did not follow through in requiring C.S. to take her medications as she "did not feel as if medication was necessary" now or in the past because C.S. "promised she would change and behave." S.T. also detailed the numerous places she and the children had lived following the eviction from her apartment in February 2008: Section 8 housing in Bayonne until her benefits were taken away, and then in the homes of a friend, her sister, and C.S.'s uncle's ex-girlfriend. S.T. also admitted to being unemployed.
S.T. tested positive for marijuana in June 2008. Around that time, S.T. advised DYFS that she had been approved for a subsidized two-bedroom apartment; however, she wanted a three- bedroom apartment because she did not want to share a bedroom with C.S. In July, S.T. again became homeless and the caseworker assisted her in securing a motel room through mid-August.
On June 13, 2008, DYFS sought and obtained an order granting it care and supervision of the three children. A psychiatric evaluation of S.T. was performed on July 10, 2008, revealing she had limited intellectual functioning, coping skills, insight, and judgment. The evaluation also noted S.T. had abused alcohol and marijuana in the past. On July 15, 2008, Dr. Alison Winston performed a psychological evaluation of S.T. with her children. She observed that S.T. had difficulty controlling E.M. The psychologist was concerned that although S.T. "acknowledged that her transience could have negative emotional impact on her children's emotional and behavioral functioning," she did not appear concerned about this issue. Moreover, S.T. was vague in discussing her drug use and financial difficulties. Dr. Wilson concluded that S.T. did not have an understanding of normal child development, was demanding and controlling, and lacked nurturing skills. She recommended psychotherapy, parenting and mentoring programs, and random urine screens.
On July 31, 2008, S.T. contacted DYFS and requested her children be placed with her mother and sister, indicating she was "losing it." When the caseworker arrived at the motel where the family was staying, S.T. requested that only C.S. be removed from her care. When the caseworker advised that all of the children would be removed, S.T. told her older children to run away, which they immediately did. E.M. was removed and DYFS reported C.S. and R.M., Jr. missing. E.M. was placed in a foster home and, when the older children were located, they were placed in a shelter.
On August 1, 2008, the maternal grandmother and R.M., Sr. applied for custody of the children, which application was denied. Three days later, DYFS filed an amended verified complaint seeking custody of all three of S.T.'s children. Shortly afterwards, D.M. offered to be a placement resource for E.M. and expressed a willingness to adopt him.
On or about August 21, 2008, DYFS learned S.T. had not been attending her drug treatment. S.T. reported she had again become transient.
On November 12, 2008, S.T. tested positive for marijuana and cocaine. She also refused to provide employment and housing information or to attend the recommended programs or classes. The older children were placed as previously stated and in February 2009, E.M. was placed with D.M. On July 22, 2009, the court-approved permanency plan was termination of S.T.'s parental rights to E.M. and adoption by his paternal grandmother.
During visitation sessions with E.M. in September and October 2009, Larrinaga noted S.T.'s lack of supervision of the child. She played games and talked on her phone while E.M. climbed on bookshelves, ran wild through the office, and potentially endangered himself. S.T. admitted she did not know how to discipline her son and explained that if he misbehaved when returned to her care, she would call the police and report that she was being abused as she had done with her other children.
On October 14, 2009, DYFS filed a complaint for guardianship of E.M. According to Larrinaga, DYFS sought the termination of parental rights because the psychiatric and psychological evaluations revealed S.T. was not capable of parenting her son.
S.T. made some progress in late 2009 and early 2010 towards reunification. She continued visits with E.M. at D.M.'s house and successfully attended supervised therapeutic visits with E.M. through Catholic Charities beginning in March 2010. Nevertheless, S.T.'s expert did not recommend reunification with her son at the time of trial because she continued to have unresolved psychological and drug related issues, lack of insight, and inability to appropriately respond to E.M., which would interfere with her ability to parent her son. Dr. Griffith acknowledged his diagnosis of S.T. as suffering from a narcissistic personality, adjustment disorder with anxiety, borderline social functioning, and obsessive-compulsive disorder. He recommended the case be extended for an additional six months for S.T. to continue services, and then be reevaluated. S.T.'s expert expressed the opinion that E.M. would not suffer any harm by the delay.
Dr. Dyer, who had also conducted a recent psychological evaluation of S.T., testified that S.T. had acknowledged she used drugs on a daily basis at certain points and had found herself homeless on numerous occasions. S.T. also reported that in the past she had been abused by a boyfriend in front of her children. Dr. Dyer opined that S.T. suffered from low-grade depression, cannabis dependence, and personality disorder not otherwise specified, with dependence and obsessive/compulsive features. He reported that S.T. had complied with therapy but had not made significant gains, and was of the opinion that S.T.'s particular diagnosis of personality disorder was difficult to modify. DYFS' expert concluded that S.T. was unable to provide adequate structure, stability, and nurturing to her young son.
Dr. Griffith opined that it would be catastrophic if the relationship between S.T. and E.M. were severed. He believed E.M. would miss his paternal grandmother if removed from her care, but the relocation would not cause him psychological harm. In contrast, Dr. Dyer focused on the vulnerability and fragility of E.M. caused by his history of disrupted attachments. He testified that the removal from S.T. was a "shattering experience" for E.M., which "left some sort of permanent scar on his personality development." Dr. Dyer was concerned that E.M.'s removal from his paternal grandmother, who had become his current attachment figure, and reunification with S.T. would lead to another disrupted attachment. Moreover, if E.M. had to be removed again, he would "have a severely impaired capacity to form new attachments to any subsequent caretaker."
Based on their bonding evaluations, both experts noted S.T.'s difficulty in coping with E.M.'s short attention spans and high activity levels as contrasted with D.M.'s even temperament and ability to deal with his active behavior by engaging him in constructive play activities and conversation, while maintaining discipline. Though acknowledging that E.M. would suffer harm if he lost contact with his mother, Dr. Dyer found it questionable whether such harm would be "severe and enduring." Overall, the psychologist was concerned that S.T. simply did not have the ability to handle E.M.'s behavioral outbursts and high energy level, and opined that E.M. would suffer long-term harm if returned to his mother and she could not successfully and safely parent him.
S.T. testified that she had been employed for six months at the Association for Retarded Citizens (ARC) as an aide to developmentally disabled adults. She believed she would be able to deal with E.M.'s behavioral issues based on her training in behavioral management while at ARC. S.T. further testified she had located a school and daycare facility for E.M. to attend if they were reunited though acknowledging she had previously failed to provide such options to her caseworker. Moreover, though representing she had maintained an apartment for a year, on cross-examination S.T. admitted the apartment was actually in her grandmother's name and the landlord was unaware she was residing there until a few days before when she left him a message.
Based on this record and after observing the lay and expert witnesses, examining the exhibits entered into evidence, and hearing arguments of counsel, Judge Mark Nelson concluded the best interests of E.M. required severance of S.T.'s parental ties. In a detailed written opinion of May 7, 2010, the judge recited the factual and procedural history of the case, made findings of fact and credibility assessments, noted the applicable law, and found DYFS had established by clear and convincing evidence the four-prong test for termination of parental rights as set forth in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-10 (1986), and codified in N.J.S.A. 30:4C-15.1. The determination was memorialized in a judgment of guardianship. This appeal ensued.
We begin by noting some basic principles. The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We also have a limited scope of review of the Family Part's factual findings. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). In reviewing the factual findings and conclusions of a trial court, we are obliged to accord deference to the trial judge's credibility determinations and the judge's "feel of the case" based upon the opportunity of the judge to see and hear the witnesses. A.R.G., supra, 361 N.J. Super. at 78 (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)). We rely upon the trial court's acceptance of the credibility of the expert testimony and the court's fact-findings based thereon, as it is in a better position to evaluate the witness' credibility, qualifications, and the weight to be accorded to the expert's testimony. Ibid.; see also In re Guardianship of J.C., 129 N.J. 1, 22 (1992).
We are not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Additionally, because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding and the conclusions which flow logically from those findings of fact. Cesare, supra, 154 N.J. at 412-13; M.M., supra, 189 N.J. at 279. Reversal is required only in those circumstances in which the trial court's findings were "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation and quotation marks omitted). Applying this standard, we discern ample evidence in the record supporting the judge's conclusion that E.M.'s best interests required termination of S.T.'s parental rights.
The applicable principles are well settled. "Parents have a constitutionally protected, fundamental liberty interest in raising their biological children." In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982)), vacated on other grounds, 163 N.J. 158 (2000). "The Federal and State Constitutions protect the inviolability of the family unit." W.P. & M.P., supra, 308 N.J. Super. at 382 (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972)). However, government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). The State, as parens patriae, may sever the parent-child relationship to protect the child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.
When the child's biological parent resists termination of parental rights, it is the court's function to decide whether the parent can raise the child without causing harm. J.C., supra, 129 N.J. at 10. The cornerstone of our inquiry is not whether the parent is fit, but whether the parent can become fit to assume the parental role in time to meet the child's needs. Ibid. (citing A.W., supra, 103 N.J. at 607). "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." J.C., supra, 129 N.J. at 10. "The burden rests on the party seeking to terminate parental rights 'to demonstrate by clear and convincing evidence' that risk of 'serious and lasting [future] harm to the child' is sufficiently great as to require severance of parental ties." W.P. & M.P., supra, 308 N.J. Super. at 383 (alteration in original) (quoting J.C., supra, 129 N.J. at 10).
The question for the court "focuses upon what course serves the 'best interests' of the child." W.P. & M.P., supra, 308 N.J. Super. at 383. The State Constitution and N.J.S.A. 30:4C-15(c) and 15.1(a) require satisfaction of the "best interests of the child" test by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612; In re Guardianship of Jordan, 336 N.J. Super. 270, 274 (App. Div. 2001). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires DYFS to prove:
(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 [formerly referred to as "foster"] parents would cause serious and enduring emotional or psychological harm to the child;
(3) The [D]ivision 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.
These criteria are neither discrete nor separate. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). They overlap to provide a composite picture of what may be necessary to advance the best interests of the child. Ibid. "The considerations involved in determinations of parental fitness are 'extremely fact sensitive' and require particularized evidence that address the specific circumstances in the given case." Ibid. (quoting In re Adoption of Children by L.A.S., 134 N.J. 127, 139 (1993)).
Our examination of the record discloses all four prongs of the statutory test have been met by clear and convincing evidence. The first prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship[,]" and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated.
K.H.O., supra, 161 N.J. at 348. The focus of the inquiry is not necessarily on a "single or isolated harm or past harm," but rather on "the effect of harms arising from the parent-child relationship over time on the child's health and development." Ibid.
The facts, as found by the trial judge from credible evidence, reveal that S.T. placed E.M. at risk by her "lack of nurturance, her inability to handle parenting stresses, the domestic violence that occurred in front of the children and [S.T.'s] daily marijuana use." The judge also found problematic that S.T. lived with her children in at least six different homes after the eviction in February 2008. Moreover, even after the children's removal in July 2008, S.T. failed to obtain employment or locate safe and stable housing for E.M. in preparation for reunification. In concluding DYFS had presented clear and convincing evidence satisfying the first prong, Judge Nelson noted that all of the medical experts who evaluated S.T., including Dr. Griffith, opined that at the time of trial she was unable to adequately parent her son and to provide him with stability and permanence.
Contrary to S.T.'s assertion that the sole harm to E.M. was removal from her, the record demonstrates risk and imminent harm to the young child while he was in his mother's care. S.T. and her children lived a transient lifestyle, for the most part moving between friend's homes and motel rooms. Additionally, S.T. was unemployed through most of E.M.'s life. S.T. was also too overwhelmed to adequately handle her parenting responsibilities in raising the three children.
The second prong contemplates the determination of parental unfitness. DYFS must prove the harm is likely to continue as a direct result of the parent's unwillingness or inability to eliminate the harm that had endangered the child's health and development or the parent has failed to provide a "safe and stable home for the child" and a "delay in securing permanency" will further harm the child. K.H.O., supra, 161 N.J. at 348-49.
In analyzing S.T.'s willingness or ability to eliminate continuing harm to E.M. and assume appropriate parental responsibilities to protect him from harm, the court reiterated the acknowledgement of all the medical experts that S.T. had not overcome her psychological and emotional difficulties or her deficits in parenting skills such as to assume responsibility for E.M. at that time. As noted by Judge Nelson, when S.T. was asked how she planned to handle E.M. if he misbehaved, her immediate response was that she would call the police; her response provided no assurance she had mastered any of the parenting skills taught during her lengthy period of involvement with DYFS.
The judge found credible Dr. Dyer's opinion that S.T.'s inability to deal with her son's behavioral issues would lead to the likelihood of a subsequent removal should she and her son be reunified. S.T.'s own expert acknowledged that a subsequent removal of E.M. would be traumatic if not devastating to the child. Dr. Griffith did not testify that S.T. would be ready for reunification in six months but only suggested that she continue with services and be re-evaluated at that time. The judge, who heard the testimony and observed the witnesses, was not convinced any evidence had been presented that S.T. would be ready to parent her son at the later date, in essence attributing Dr. Griffith's suggested delay to be more in the nature of wishful thinking than a viable alternative to termination after trial.
Contrary to S.T.'s assertion, the problems she experienced in attempting to parent her two older children did not form the sole, or even primary, basis for the termination. Even with eighteen months of individual counseling and without the excuse of her older children's behavior, S.T. had not come close to being able to place E.M.'s needs above her own, respond with the appropriate degree of nurturing and firmness, or to create the necessary stability to demonstrate that a long-term unification plan could be achieved in six more months.
The third prong requires DYFS to make "reasonable efforts" to assist the parents in correcting or eliminating the circumstances that caused the harm and consider alternatives to termination. N.J.S.A. 30:4C-15.1(a)(3).
S.T. does not dispute that DYFS provided her with a myriad of services. Contrary to S.T.'s assertion, the judge provided more than ample explanation that DYFS demonstrated by clear and convincing evidence the reasonable efforts it made to provide S.T. with appropriate services under the circumstances. As he stated, for over a decade, DYFS provided S.T. with multiple substance abuse assessments and/or treatment, parenting skills classes, domestic violence counseling, individual counseling, housing assistance, and regular visitation with E.M. See D.M.H., supra, 161 N.J. at 393-94.
Lastly, the statute's fourth prong mandates a determination as to "whether a child's interests will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). There is ample basis in the record for the judge's finding that the evidence strongly pointed towards termination rather than reunification.
Both experts testified that E.M. had a positive relationship with both his mother and his paternal grandmother who had been caring for him for over a year at the time of trial. Both doctors indicated it would be extremely difficult to impossible for E.M. to handle a failed reunification, however, and even Dr. Griffith opined that reunification was "at best, a risky bet." E.M. was thriving in his grandmother's care and had the certainty of stability and permanency through adoption as compared with a "wish and a prayer" that his mother could be successfully and permanently reunified with him within a short period of time.
We are mindful of the strides S.T. made in her personal life at the time of trial in obtaining stable housing, employment, and some parenting skills. We have no doubt S.T. loves her son and honestly believes she is ready to care for him. However, we are convinced the record supports the trial judge's finding that S.T. is unable to provide a safe, stable and permanent home that her son so desperately needs at this point in his life. As we concluded in In re Guardianship of A.R.G., 318 N.J. Super. 323, 330, (App. Div.), certif. denied, 162 N.J. 127 (1999), where there is substantial credible evidence in the record to support termination of parental rights, there is no reason to delay permanent resolution. A child cannot afford to wait until such time as his parent might possibly be able to provide a safe, secure and nurturing environment for him. The trial court properly concluded that termination of parental rights will not do more harm than good to E.M. as it will free him for adoption by his paternal grandmother who can provide permanency and stability.