April 11, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
D.P., DEFENDANT-APPELLANT, AND M.M., DEFENDANT. IN THE MATTER OF THE GUARDIANSHIP OF N.M. AND X.M., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-104-10C.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 8, 2011
Before Judges Carchman, Graves and Waugh.
Defendant appeals from a judgment terminating her parental rights to her children, X.M. and N.M., and granting guardianship to the Division of Youth and Family Services (DYFS or the Division). We affirm.
These are the relevant facts adduced at the hearing. Defendant, 34, is the mother of five children - X.M. and N.M., as well as L.L., born September 17, 1997; H.L., born September 10, 1998; and V.B., born July 16, 2009. None of the children are in her custody.
Defendant gave birth to X.M. on December 5, 2002. The child was born with a "bilateral club foot deformity," and this condition required "continual treatment." Defendant first came to the attention of DYFS when it was determined that defendant stopped taking X.M. to the doctor. According to defendant, medical benefits had been terminated, but they had since been reinstated in approximately September 2004.
DYFS maintained contact with defendant and the child and provided then with necessities for the child. During this supervision period, defendant gave birth to N.M. There appeared to be no significant issues regarding care of the children, and in a visit with DYFS worker Lika Brown in March 2005, X.M. "appeared to be well-cared for and not in any form of danger." In fact, over the next few years, except for a domestic incident requiring defendant and the children to be placed in a shelter, defendant and the children's lives were relatively stable, and the children showed no signs of abuse or neglect. That changed in 2008.
On May 1, 2008, DYFS worker Jenny Marzano was contacted by an employee of a "homeless residence," who stated that "[defendant] and her children [had] been residing at [the] facility for the past 2 months" without incident. However, that day at approximately 2:00 p.m., defendant asked Angelique Williams, a fellow shelter resident, to watch her children "for fifteen minutes" while she went out with a man named "Poppi." Eventually, after "it got late," Williams returned to the shelter with the children, causing the facility to call the Division. Marzano spoke with X.M. and noted that he "appeared to be clean and well cared for."
Also present was K.C., a longtime friend of defendant who indicated that she had learned of what happened by sheer coincidence when she attempted to contact defendant through Williams's cell phone. She further stated that "she ha[d] never known [defendant] to do anything like this and could only suspect that something happened to her." K.C. told Marzano that she did not know "Poppi" but showed a willingness to care for the children. When asked if he knew K.C. and was familiar with her home and family, X.M. responded in the affirmative.
DYFS was notified of defendant's abandonment of the children and the children were temporarily placed with K.C., who had two children of her own. In her report, the DYFS caseworker reported that X.M. and N.M. "were abandoned by their mom."
The next day, defendant called the caseworker to announce "that she was on her way as she stopped to go food shopping for the children." The caseworker requested that defendant come to the DYFS office. The worker noted that although defendant "denied being high at the present moment," she "appeared to be under the influence as she was lethargic, nonchalant and had a flat affect" in addition to "glazed" eyes. According to the caseworker's report:
[Defendant] stated that she does not understand why Angie [Williams] said she abandoned the children as she had an arrangement with her: when she has to go out [Angie] was to stay with her children and when Angie has to go out, she does the same. When asked, [defendant] stated that she left around "5 something" and that she went out with a friend "Billy Garcia" [when] he asked her to take a ride with him. [Defendant] agreed to take a ride with Mr.
Garcia to Buffalo NY being ambivalent of the location's distance. When asked why she did not call when the time of curfew by the shelter was approaching, [defendant] replied that she did not know that DYFS was going to be called and she assumed that Angie was going to stay at her friend's house with the children. [Defendant] further stated that she knows that the shelter allows them to sleep out of the shelter a max of 5 times prior to being dismissed permanently. [Defendant] stated that she assumed that she was to find Angie and her children at their friend's house at the time of her arrival from Buffalo.
Defendant also indicated that the "friend" to which she referred was O.B., a "previous paramour" whose abuse was the cause for her current residence in a shelter. She further stated that "she could not count the times that [O.B.] hit her" but that "the children never witnessed any physical abuse between them as they were always sleeping when he hit her." The caseworker informed defendant that neither she nor the children were to have contact with O.B., that she could not live with K.C. while the children remained there and that she had to attend a hearing on May 5, 2008, when custody of the children would be decided.
On May 5, 2008, the Division filed an OTSC for custody, care, and supervision pursuant to a Dodd*fn1 removal. The order acknowledged defendant's actions and noted that "[b]esides homelessness she admitted to using marijuana every other weekend." The court found that "the removal of the children [was] required due to imminent danger to the children's [life], safety or health." The judge continued custody with the Division, required Defendant to undergo a "CADC evaluation,"*fn2 and permitted supervised visitation by defendant and M.M., the children's father. In addition, the court found that the Dodd removal "was appropriate and in the best interest of the children" and that it would "be contrary to the welfare of the children to remain in the custody of their biological mother as she is homeless and has admitted to consuming marijuana." It also ordered the Division "to assist [defendant] with housing and refer her to different agencies that [could] provide her with housing assistance."
DYFS referred defendant for a Substance Abuse Initiative (SAI) assessment, noting that she had admitted to using marijuana and "appeared to be under the influence" on May 2, 2008. That same day, the Division conducted an assessment of K.C.'s home. The worker reported "no safety concerns" but indicated uncertainty about whether "the home would meet standards for licensing." At a subsequent "Family Team Meeting," defendant "was made aware of all the behaviors that were in need of modification in order for the goal of reunification to occur," including any contact with O.B. Additionally, according to the worker:
[Defendant] was explained that she will be required to complete the following in order to reunify with her children: complete a CADC assessment and comply with the recommendations of such, she would be scheduled to undergo a Psychological Evaluation and is to comply with the recommendations of such, she is to be able to free herself from any domestic violence relationships and is to accept Domestic Violence counseling services; she is also to secure and maintain stable housing. [Defendant] [was] explained that our goal, which is reunification with the children, has a mandated timeline by the ASFA laws which is a maximum of 15 months prior to finalizing a permanent plan. In simpler terms, [defendant] was explained [sic] that she had a year to complete or initiate the above-mentioned recommendations.
K.C. also "agreed to arrange supervised visits in her home" but was warned that "the children could NOT be alone with [defendant] ANYTIME."
DYFS learned that K.C. had outstanding warrants against her so the children were removed from her home to be placed in foster care with M.D., a resource parent. En route, X.M. and N.M. "recalled an incident of domestic violence where [defendant] took a knife out on 'Papi' and made him bleed," resulting in "Papi" getting arrested and defendant crying.
Defendant failed to appear for her SAI assessment. When contacted, defendant informed DYFS worker David Brito (Brito) that she "was not involved with her husband and [did not] live with him and [had] nothing to do with [M.M.]." She also indicated that she was "looking for an apartment" and had applied for Section 8 housing. Nevertheless, she failed to appear at yet another substance abuse evaluation.
The court continued X.M. and N.M.'s custody and permitted visitation supervised by M.D.
Brito contacted M.D. on June 4, 2008, and learned that she was taking both X.M. and N.M. to the dentist the next day because "their teeth [were] really bad." In addition, M.D. indicated that X.M. may need therapy "because he sometimes talk[ed] about how his mother abandon[ed] him." When Brito contacted defendant that same day, she informed him that she was living with O.B. and refused to give Brito any of O.B.'s personal information.
In June 2008, defendant visited her children in the DYFS office and spoke with Brito. She expressed a willingness to participate in domestic violence counseling, CADC assessments, and a drug treatment program, although she admitted to smoking marijuana the previous week.
The DYFS worker who drove the children to and from the next visit reported that X.M. again spontaneously told the story of the fight in which defendant made "Papi" bleed. According to the worker, N.M. "started crying uncontrollably as [Brito] was interviewing [defendant]."
That same day, defendant underwent a psychological evaluation by Robert Kanen, Psy.D. Following his session with defendant wherein she discussed her background, exposure to domestic violence with O.B., and violence and drugs in her upbringing, Kanen composed defendant's personality profile and reached the following conclusions:
Personality testing strongly indicates a longstanding personality disorder. She may experience a recurrent and pervasive mild to moderate depression with a general state of sadness and mood disharmony. She is easily distracted by external circumstances. She distances herself from social relationships and shows limited enthusiasm for most activities, preferring a solitary life. She appears to be indifferent to social relationships, leaving her at great risk for not paying attention to her children and neglecting them.
She has a tendency to become self-absorbed and lost in daydreams that confuse fantasy with reality. She may be cognitively distracted by thoughts that intrude on normal social communications.
[Defendant] is functioning in the Borderline range of intelligence, with an estimated Full Scale IQ of 75, placing her above 5% of the general population and below 95%. . . . She is a marijuana abuser but denies the impact her substance abuse has had on her day-to-day functioning, including her parenting. She started smoking marijuana at the age of 16 and began using every day at the age of 18. She last used marijuana one week ago. She is not mentally ill but shows evidence of longstanding personality problems characterized by behavioral apathy, depressive tendencies, and a strong dependency on supportive institutions to assist her in functioning in daily life. She is presently homeless, unemployed and has an unstable lifestyle. . . .
She assumes a passive role in most situations and avoids interpersonal involvement. These factors combine to put her at risk for continued neglect of her children. She is not likely to be adequately sensitive to the needs of her children. Her cognitive deficits leave her with impairments in judgment, reasoning and decision making.
It is this examiner's opinion that at this time [defendant] cannot provide her children with a permanent, safe and secure home. Returning her children to her care would expose them to an unnecessary risk of harm.
Kanen recommended that defendant enter substance abuse treatment, find employment and stable housing, complete parenting classes, and participate in individual psychotherapy.
Two days later, Brito, after a home visit where X.M. recalled times when his mother left him alone, called defendant to confirm her next visit, which was scheduled for June 18, 2008. When Brito raised the topic of relative resources, defendant replied that "her mother could not take care of her children and she does not have a stable apartment." However, defendant indicated that "her Aunt Marsha*fn3 " might be a suitable option. Defendant also requested that the Division provide her with a Section 8 voucher or otherwise assist her in her housing search.
Defendant missed two additional SAI evaluations*fn4 , and her case was terminated. Brito then referred defendant to C-Line Community Outreach Services Inc. (C-Line) for parenting classes, and defendant stated that "she want[ed] her children back and [was] going to start working [to] save up for an apartment."
Also in July 2008, Brito spoke with M.D. At that time, she indicated that "she would like to adopt [X.M. and N.M.] if she had the opportunity to." When Brito attempted to contact defendant on July 28, 2008, the day of her SAI assessment, he was unsuccessful.
Following a hearing where the court continued custody and ordered defendant to participate in various programs and services, defendant informed Brito that she was no longer living or "talking with" O.B. and was instead living with K.C. in Bayonne. In addition, defendant offered I.G., O.B.'s mother, and "her brother's girl friend" as potential caretakers for X.M. and N.M. Brito asked defendant to provide him with the personal information of both individuals.
That same day, defendant attended a parenting class at C-Line. Her progress report for August 2008 described her motivation as "sincere," her insight as "accepting problems," and her attitude toward treatment as "fluctuat[ing]." Brito contacted K.C., who confirmed that defendant was residing with her. Although K.C. initially equivocated about becoming a caretaker for X.M. and N.M., she eventually stated that she was "100% committed" to the idea. Brito nevertheless advised her that "she may be ruled out."
During the ensuing months, defendant's attendance at various services and classes was uneven. She attended some and missed others.
On September 22, 2008, Brito formally referred defendant for weekly one-and-a-half-hour visitation at the DYFS office. The referral indicated that although the Division would transport X.M. and N.M., defendant would be "responsible for her own transportation." That same day, defendant failed to appear for a substance evaluation.
The Family Part judge entered a fact-finding order in September 2008, determining by a preponderance of the evidence that defendant "plac[ed] the children at risk of harm" by leaving them "in the care of one of the residents at a shelter home" and failing to return for them as promised. A simultaneous disposition order maintained the existing custody and visitation arrangements and ordered defendant "to continue attending parenting skills classes and individual psychotherapy at C-Line." During the ensuing months, the pattern of attending some classes and missing others continued. Defendant also failed to appear for her October substance evaluation.
In October 2008, defendant began attending visits with X.M. and N.M. at the Urban League in Jersey City. The DYFS worker who transported the children to the visit reported that defendant "exhibited plenty of warmth to her children," and "both children began to cry" when the visit ended. After the next visit at the Urban League was cancelled, defendant appeared for another one on October 30, 2008. Again, the DYFS worker indicated that X.M. and N.M. "were excited about meeting their mother," and defendant was "very affectionate" toward them. Both children cried when they had to depart.
X.M. and N.M. were moved to a new foster placement November 2008. S.B., their new foster mother and a relative of M.M., lived in a three-bedroom apartment with her husband and son. The children responded positively to the placement.
Visitations continued, and although defendant missed one in December, both the November and December visits were positive. Her attendance faltered in the new year. On January 8, 2009, defendant failed to attend both a visit at the Urban League and an SAI evaluation. Following the missed evaluation, her case at SAI was again closed. Defendant appeared for her next visit at the Urban League on January 22, 2008, but only after arriving an hour late "because she attended a dental appointment." This pattern continued as defendant arrived thirty minutes late to her next visit with X.M. and N.M. at the Urban League on February 5, 2009. She attended a session at C-Line the same day, and another on February 11, 2009. Thereafter, between February 12 and April 2, 2009, defendant missed four C-Line classes and four Urban League visits with the children.
On April 29, 2009, DYFS workers held a ten-month placement conference. Based on defendant's "non-compliance," they agreed on a new goal of termination of parental rights and adoption by S.B. The next day, defendant called S.B. to inform her that she would not attend that day's Urban League visit because "she had to go to Newark to handle business." Later, Nafeesahn Clinton, D.P.'s new DYFS case worker, spoke with M.M., who agreed to the termination of his parental rights over X.M. and N.M.
Defendant did not attend the next court hearing, claiming that she had no money. Following the hearing, the court entered a permanency order approving the Division's goal of termination followed by adoption. It found that the Division had "provided reasonable efforts to finalize the permanen[cy] plan, including . . . CADC evaluation, referral for substance abuse treatment, psychological evaluation, supervised visits, monthly bus pass, referral to C-Line, referral to SAI, assessment and placement with a family friend." The court also noted that defendant "ha[d] not complied with recommended services in order to effectuate reunification." The court ordered the Division to file a complaint for guardianship by July 17, 2009. A simultaneous compliance review order continued weekly visitation and required defendant to attend substance abuse treatment, counseling, and parenting skills training. She was further ordered "to obtain housing [and] employment."
The pattern of missing visits continued as defendant missed two Urban League visits. At a home visit on June 2, 2009, S.B. told defendant's new DYFS case worker, Kim Pigott-Johnson, that she would be willing to transport the children to visitation in a public place if defendant would attend.
Later in June 2009, defendant tested positive for cannabinoids (THC), cocaine, and opiates. She was referred for another SAI assessment, and that same day, a PCS worker completed a document outlining her "diagnostic impression" of defendant, recommending "long-term inpatient treatment" for her drug abuse. During a July 7, 2009 home visit, S.B. told Pigott-Johnson that defendant "ha[d] not contacted her for a visit" or "to see how the children were doing."
DYFS filed a complaint for guardianship on July 14, 2009, alleging that placing X.M. and N.M. with either defendant or M.M. "would expose [them] to an unacceptable level of harm." It sought a "judgment terminating defendant's parental rights and committing the minors, [X.M.] and [N.M.], to the guardianship of the [Division]."
On July 16, 2009, defendant gave birth to a fifth child, V.B. At the time, she "denied having any prenatal care because [she] planned to terminate the pregnancy" and "disclosed to the nurse that she uses cocaine and heroin, and last ingested the drugs" that day. Both defendant and V.B. tested positive for cocaine and opiates.
Defendant was discharged from the hospital on July 18, 2009, but, according to Pigott-Johnson, "remain[ed] homeless and unemployed." A DYFS report completed on July 24, 2009, stated that defendant "ha[d] not contact[ed] the Division in reference to visits or any other service" and "remain[ed] unavailable and transient."
On the return day of the order, the court ordered defendant to attend visitation, substance abuse treatment, parenting classes, and counseling, and it also mandated that she "comply with a CADC evaluation." The Division again referred defendant for SAI assessment and in September 2009, defendant was admitted to "Straight and Narrow Detox." As a result, all visitation was suspended. However, defendant left Straight and Narrow early after completing the detoxification portion of her treatment. She thereafter tested positive for barbiturates, cannabinoids, cocaine, and opiates in October and began a new detoxification program at the Jersey City Medical Center. In a subsequent meeting with Pigott-Johnson, defendant "admitted . . . that she used after she left Straight and Narrow." A subsequent referral to parenting classes at Christ Hospital proved unsuccessful as defendant did not attend.
Frank J. Dyer, Ph.D. conducted a bonding assessment with S.B., X.M., and N.M., in November. S.B. stated that her home currently had two other children: her eleven-year-old "birth son," and a new six-year-old foster child. She also noted that visits with defendant had stopped because defendant "refused to show up." Prior to conducting the bonding evaluation, Dyer administered the Conners Parent Rating Scale-Revised for both children and determined that both "qualifie[d] for a diagnosis of Attention Deficit Hyperactivity Disorder."
Dyer observed that S.B. "was very good at teaching both of the children how to play Connect Four and also structuring the situation so that both children could have successful experiences while playing." He further noted that S.B. "encouraged independent effort in playing the game" and utilized hand sanitizer when the children coughed or sneezed.
When interviewed individually by Dyer, N.M. indicated that living with S.B.*fn5 was "good":
[N.M.] was asked whether it would be a good thing or a bad thing if she left [S.B.] and went to live with [defendant], to which she replied "bad thing." When asked why that would be a bad thing, she responded "'cause I listen. I listen to [defendant]." When asked whether it would be a good thing or a bad thing if she stayed with [S.B.], she replied "I stay with her. [X.M.] don't want to stay with her." In response to another question, [N.M.] stated "He doesn't want to stay with her anymore." When asked with whom she would live if she could live with anyone in the world, [N.M.] replied "[S.B.] and [S.B.'s son]."
N.M. also stated that S.B. had hit X.M. "with her hand" but had never hit N.M.
Dyer also interviewed X.M., who twice indicated that he missed defendant. As Dyer reported:
[X.M.] was asked whether it would be a good thing or a bad thing if he stayed with [S.B.]. He responded "Then I would be sad." When asked why that would be so, he indicated that he did not know. When asked whether it would be a good thing or a bad thing if he went to live with his mother, he responded "Good thing." When asked to explain, he replied "'cause at my house, my mom when everybody left me at the house someone picked [me] up and brought be to [S.B.'s] house and I have a cousin who was 11 and his name is Tyrone. And it would be a bad thing if he hit me." When questioned about this statement, [X.M.] denied that anyone hit him at home.
[X.M.] was asked with whom he would live if he could choose
anyone in the world. He responded "My other aunt . . . ."*fn6
When asked why he made that choice, he responded "'cause in
my life, I like to see her."
Dyer also conducted psychological and bonding evaluations involving defendant. He described defendant as "a depressed appearing individual who mumbled a great deal when she talked, and maintained a position in which she was bent over for most of the session, hung her head, and spoke at a very low volume." Dyer inquired "whether she was under the influence of any substances that day, as she did appear to be impaired." Defendant responded that she had taken four Tylenol PM before the evaluation to soothe a toothache. Asked about employment, defendant stated that she worked as a housekeeper for a hotel chain, worked for a cleaning company, and worked as a nursing home aide.
Defendant also answered questions about her history with drugs:
[Defendant] was questioned about her use of drugs. She replied that she smoked marijuana in high school and that she also began to use cocaine when she was 20 or 21 years old. When questioned about any use of heroin, she responded "I had just started doing that for a year, but I don't do it anymore." When questioned about her last use of heroin, [defendant] responded "Since I've been out the detox." . . . When asked when the last time was that she smoked marijuana, she replied "I smoked weed last week."
[Defendant] was questioned about her previous rehabilitation. She replied "I been to detox, that's it. I never been to inpatient or outpatient." She stated that she went to a detox because of heroin. When asked how she [got] money to purchase heroin, she replied "Friends!" She stated that she did not have to buy any heroin. In response to further questioning, [defendant] denied having to do anything to obtain the heroin from her friends, except "They needed somewhere to hang out." She stated that when she [got] out of the shelter, she was living with her ex-boyfriend. . . . She indicated she used heroin by sniffing, and denied intravenous use of any drugs.
After administering the Wide Range Achievement Test-Third Edition, Dyer determined that defendant was "reading at a sixth grade level," which was sufficient "to respond to self-report clinical personality testing." Such testing revealed that defendant "responded in a manner that reflect[ed] a tendency to exaggerate her psychopathology," a characteristic Dyer described as a "cry for help." He elaborated:
The protocol indicates that [defendant] suffers from extreme symptoms related to anxiety, some of which may have a posttraumatic etiology. She also suffers from clinical depression at the present time, as well as a characteristic mistrust of others and [a] belief that others are working to undermine her interests. At times her contact with reality tends to be somewhat tenuous, and her thinking processes obscure and infantile. The [Personality Assessment Inventory] results also indicate that others are very likely to view her as lacking in emotional depth and being a somewhat cold individual. The subject views her environment as one in which she is not receiving adequate support from any source.
She sees herself as having significant psychological problems that require professional assistance.
The House-Tree-Person drawings and related associations are suggestive of an individual with a rather childish personality organization who is mildly limited cognitively and lacking in self-insight.
Structural features of the protocol suggest that [defendant] is vulnerable to psychiatric or behavioral crises at the present time. The quality of her associations to the drawings suggested both a prominent antisocial dimension to her personality and a depressive attitude.
In addition, Dyer opined that defendant "failed to internalize a positively valued maternal role model as a child because of her experiences of abuse and neglect by her own impaired mother." Dyer concluded that defendant lacked "a core experience of being adequately mothered that would serve as a basis for her own development of a maternal identity with her own children."
During the bonding evaluation, defendant, X.M., and N.M. played Connect Four. Dyer again "noted that during this observation with the children, [defendant] appeared to be rather impaired, and spoke in a slow, monotone manner at a low volume. She was bent over with her head down as she was interacting with the children." In addition, as they played, "there was no conversation between [defendant] and the children as to how the children were or what [defendant] was doing." Although the children "displayed a lot of enthusiasm" for the game and their time with their mother, defendant "continued to speak at a very low volume in a monotone and [hang] her head down, with her body bent over."
X.M. asked his mother for water at least three times throughout the evaluation. Finally, after the third time, defendant "told him 'You got to wait till we get downstairs.'" He addressed defendant as "Mommy" instead of using her name, as he had when interviewed by Dyer alone.
The implications of [defendant's] psychological profile are negative with respect to parenting capacity. In [the] first place, it appears that [defendant] abuses multiple substances. She admits that she is still smoking marijuana, and also admits to having used heroin as recently as October 2009. The examiner strongly suspected that she was under the influence of heroin or a similar substance of abuse during the present evaluation. [Defendant's] bent-over posture and her hanging her head and mumbling during the entire bonding assessment with the children were also of concern. The subject has not even begun to address her drug dependence in a satisfactory manner, and has no history of any attempts at drug rehabilitation aside from a single detox. This factor in itself represents an insurmountable hurdle to her being able to regain custody of her children.
A second and distinct risk factor is the subject's total denial of having done anything or failed to do anything that would in any way put her children in danger. She assured the authorities that the children would not have been in danger if DYFS had not removed them after she left them with a friend for an extended period of time because her friend would have returned them to her ex-boyfriend. I note that this is the same boyfriend who abused [defendant] physically and caused her to seek refuge in a battered women's shelter. The subject's attitude of denial and her total lack of insight with respect to her endangering her children would make her impossible to supervise if the children were returned to her.
[Defendant's] infantile personality organization, her at times tenuous contact with reality, and her borderline intellectual ability very severely limit her capacity to provide a safe, stable, and stimulating environment for her children. Additionally, she is vulnerable to periods of clinical depression, which at times may be incapacitating. . . .
Based on the above observations, it is my recommendation that DYFS not consider [defendant] as a viable candidate for custody of either of the two children at issue.
Following these evaluations, defendant failed to attend two scheduled visits.
On December 11, 2009, DYFS worker Wendy Garcia attempted to contact defendant by calling A.C., a man with whom she had been staying. A.C. informed Garcia that defendant had "moved out of his apartment about 4 days ago." Garcia visited A.C.'s home three days later, where she observed defendant's belongings "in plastic bags." When asked, A.C. indicated that defendant had called him that morning to inform him that she was in Queens.
Later that day, defendant called Garcia from a detoxification program at St. John's Episcopal Church in Far Rockaway, New York. Garcia also spoke to defendant's counselor, who indicated that she had arrived on December 10, 2009, and tested positive for alcohol, cocaine, and marijuana. The counselor further stated that defendant would soon be transferred to an inpatient program in Manhattan called "Addictions Rehabilitation." A subsequent call from the counselor confirmed that defendant would enter the Addiction Rehabilitation Center (ARC) for inpatient treatment on December 17, 2009.
Defendant called Pigott-Johnson from ARC on January 4, 2010. Pigott-Johnson also spoke with defendant's ARC counselor, who stated that defendant was "doing well" and would "be starting parenting classes on January 14, and . . . be finished some time in March." Pigott-Johnson inquired whether ARC would allow visitation with defendant's children, and on January 22, 2010, a DYFS worker picked up defendant and O.B. from ARC for a visit with X.M., N.M., and V.B. in Montclair, New Jersey. On February 3, 2010, defendant left ARC prematurely and did not return, and she was formally discharged from the program five days later. A subsequent investigation revealed that defendant left ARC with O.B.
After the court fixed a date, defendant personally did not appear for trial. The Division presented two witnesses: Pigott-Johnson and Dyer. Pigott-Johnson broadly recapped defendant's history with the Division and noted that the obstacles to defendant's reunification with X.M. and N.M. included substance abuse, stable income or employment, stable housing, and parenting skills. She characterized defendant's visitation with the children as "sporadic" and indicated that this inconsistency was painful for X.M.:
Q. Is it fair to say that [X.M.] has expressed his disappointment and heartache at his mother having missed these visits?
A. Yes, he's always talking about how he wants to see her. He always has positive things to say about her also but, you know, why is she not available to see him more regularly. He often asks that.
The Division had also referred defendant for substance abuse treatment and parenting classes, but she failed to follow through with these programs. In sum, defendant "ha[d] not addressed her deficiencies and the children ha[d] been in foster care for more than 15 months."
Dyer reiterated his findings from defendant's psychological evaluation, describing her as "entrench[ed]" and in "rigid denial" about her parenting deficiencies. After noting that defendant appeared "significantly impaired" during the evaluation, possibly from an opiate, Dyer concluded that "anyone with [defendant's] particular psychological profile would be very, very poorly equipped to parent the child."
Dyer noted that because the child remembered his time living with defendant, X.M. was clinging to a "fantasy" of reunification. Dyer later clarified that the fantasy was not the attachment X.M. felt toward defendant, but rather his dream of a life with defendant "in a setting where [defendant] doesn't have any problems that would lead to his removal, where she would be able to take, where she would be able to give him all the love, affection, nurturance, security, material comforts that he missed for so long."
After reviewing his observations during the bonding evaluations with defendant and S.B., Dyer indicated that placing the children with defendant would put them "at extreme risk of harm given the birth mother's manifest incapacity and chaotic lifestyle [that] still appears to be centered around drugs." He concluded that the "prognosis for [defendant's] achieving adequate parenting capacity at any time within the foreseeable future [was] extremely poor." Moreover, he testified that removal would be harmful to X.M. despite his attachment to defendant:
Q. What harms would the children suffer short or long term if they were removed from this particular caretaker and placed elsewhere?
A. It would be very disruptive for
[X.M.] who . . . is clinically hyperactive, as is [N.M.]. [X.M.] has apparently internalized a lot of inner controls through his interaction with his foster mother.
For him to be removed from the foster mother to whom he has formed this type of attachment and placed with any other caretaker would cause him to regress in terms of his learning and his behavior.
And also I believe [removal] would negatively affect his capacity to attach to any new caretaker because it's virtually axiomatic among practitioners who work with children in the foster care system that every successive disruption chips away at a child's capacity to attach.
Although Dyer acknowledged that X.M. would experience defendant's termination as "a painful loss," he indicated that this pain would be outweighed by the destruction of X.M.'s "fantasy," which would allow him "to establish a deeper attachment and identification with a caretaker." Moreover, Dyer stated that S.B.'s bond with X.M. would allow her to mitigate this loss "to a very large extent." Therefore, he concluded that "these other considerations far outweigh the [desirability] of preserving the attachment" to defendant.
When asked about psychotherapy during cross-examination, Dyer responded that active drug users are not generally "expected to profit from psychotherapy" until they have tackled their addictions. Dyer distinguished psychotherapy from counseling, which he indicated to be a part of inpatient substance abuse treatment.
In her twenty-two-page written opinion, Judge Foti found that "the Division did provide reasonable efforts to [defendant]," including "referrals for CADC assessments," visitation, "parenting classes and drug treatment through C-Line," psychological and bonding evaluations, and a bus pass. Nevertheless, "[defendant] failed to respond to these efforts in a meaningful way and harmed her children by failing to complete the services offered." She concluded that there was "no viable alternative to termination of parental rights."
When considering prong four, the judge relied upon Dyer's unrebutted report and testimony. She found: "It is in the best interests of the minors, X.M. and N.M. that they be placed in the guardianship of the Division so that they can be adopted. Permanency at this juncture of the life of the minor children is in their best interests."
Judge Foti concluded that the Division had proven by clear and convincing evidence that termination was in the best interests of the children and entered a judgment of guardianship in the Division's favor. This appeal followed.
Our review of a trial judge's termination of parental rights is limited. We will defer to and "uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We will also defer to the credibility assessments made by the trial court. Id. at 279. However, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 89 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). Parents enjoy a fundamental right to raise and maintain a relationship with their children that is protected by the United States and New Jersey Constitutions. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (citing Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). Moreover, "[t]he Legislature has declared that '[t]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare.'" K.H.O., supra, 161 N.J. at 347 (second alteration in original) (quoting N.J.S.A. 30:4C-1(a)).
"Parental rights, though fundamentally important, are not absolute. The constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." Ibid. (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). "The State has a basic responsibility, as parens patriae, to protect children from serious physical and psychological harm, even from their parents." E.P., supra, 196 N.J. at 102 (citing K.H.O., supra, 161 N.J. at 347); see also M.M., supra, 189 N.J. at 279 ("The State has a responsibility to protect the welfare of children and may terminate parental rights if the child is at risk of serious physical or emotional harm.") (citing Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979)). Furthermore, the Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit . . . ." N.J.S.A. 30:4C-1(a).
The Court has "consistently imposed strict standards for the termination of parental rights." K.H.O., supra, 161 N.J. at 347. "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. Under that test, termination is not appropriate unless the Division satisfies each of the following four statutory factors by clear and convincing evidence:
(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. [N.J.S.A. 30:4C-15.1(a).]
"The statute requires that the State demonstrate harm to the child by the parent." K.H.O., supra, 161 N.J. at 348. Moreover, the four statutory factors "'are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" In re Guardianship of I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)). "When the child's biological parents resist the termination of their parental rights, the court must decide whether the parents can raise their children without causing them further harm." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (citing J.C., supra, 129 N.J. at 10).
On this appeal, defendant challenges only the judge's findings and conclusions as to prongs three and four of the statutory standards. She asserts that DYFS failed to satisfy the third prong by clear and convincing evidence because it "could not provide clear evidence that D.P. received notification of all her appointments," failed to provide adequate transportation for D.P. to attend classes at C-Line, and failed to offer D.P. psychological counseling.
In the context of termination of parental rights, "reasonable efforts" are defined as:
[A]ttempts by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development and health; and
(4) facilitating appropriate visitation. [N.J.S.A. 30:4C-15.1(c).]
This prong of the "best interests" standard "contemplates efforts that focus on reunification of the parent with the child and assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354. As noted by the Court, "assisting the parent's efforts to reunify the family is both a central and paramount consideration in determining the diligence of DYFS's efforts." In re Guardianship of D.M.H., 161 N.J. 365, 389 (1999) (citing In re Guardianship of K.L.F., 129 N.J. 32, 47 (1992)). To this end, the Division "must encourage, foster and maintain the bond between the parent and child as a basis for the reunification of the family." Id. at 390.
However, "[t]he diligence of DYFS's efforts on behalf of a parent is not measured by their success." Id. at 393. Rather, it must be assessed "on an individualized basis," id. at 390, "against the standard of adequacy in light of all the circumstances of a given case." Id. at 393.
Here, the Division "made reasonable efforts to provide services" to defendant. N.J.S.A. 30:4C-15.1(a)(3). Because defendant's substance abuse problem was the foremost obstacle she faced toward reunification, DYFS referred her for no less than six SAI assessments. It repeatedly attempted to contact her by mail at her last known address and often by telephone. Nevertheless, defendant continually failed to appear or cooperate. Whether or not she received each notice mailed to her, the missed assessments are part of a larger pattern of disregard for the Division's recommendations. As Pigott-Johnson indicated, defendant was "aware that she needed to . . . maintain contact with the Division to attend a substance abuse evaluation." Her failure to advise DYFS of her whereabouts and communicate reliably with DYFS workers regarding services is the true cause of her missed appointments.
We conclude that defendant's arguments regarding transportation are unavailing. Many of the problems were created by defendant's failure to advise DYFS of her various relocations. Defendant's lack of a permanent address coupled with her failure to advise of her whereabouts hampered DYFS's efforts to provide her with transportation. In addition, according to Pigott-Johnson, defendant was provided with bus cards when she requested them.
Finally, DYFS was not obligated to refer defendant to psychotherapy. As Dyer explained, such treatment would not necessarily have been helpful while defendant remained an active drug user, as she was throughout DYFS' involvement with her. DYFS correctly "prioritize[d]" defendant's substance abuse problem above psychotherapy, and according to Pigott-Johnson, if defendant had successfully overcome her habit, DYFS would have referred her for therapy.
The judge correctly determined that DYFS established prong three by clear and convincing evidence. It provided defendant with assessments, parenting classes, visitation, and substance abuse treatment. Her failure to consistently avail herself of these services cannot prevent the termination of her parental rights. D.M.H., supra, 161 N.J. at 393.
Defendant also asserts that the DYFS failed to prove the fourth prong by clear and convincing evidence. She claims that the trial judge "erred in deferring entirely to Dr. Dyer in discounting [X.M.'s] opinion of whether his relationship with his mother should be completely severed." According to defendant, Dyer's testimony evinced a "desire not to see [D.P.] reunified with her children" that was tantamount to "explicit bias."
The fourth prong of N.J.S.A. 30:4C-15.1(a) does not "require a showing that no harm will befall the child as a result of the severing of biological ties." K.H.O., supra, 161 N.J. at 355. Rather, "[t]he question to be addressed . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." Ibid. Furthermore, the Court has recognized "New Jersey's strong public policy in favor of permanency." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510 (2004).
The judge correctly determined that termination of defendant's parental rights would not do more harm than good. Dyer's conclusion that X.M. would experience a "painful loss" does not end the inquiry. Rather, it is one factor to be considered when balancing relative harms. In his testimony, Dyer emphasized that the severance of X.M.'s emotional attachment to defendant would ultimately allow him to forge a "deeper" relationship with S.B. Given defendant's demonstrated inability to meet the goals required for reunification, X.M.'s bond with S.B. is critical to his development. Moreover, Dyer indicated that, unlike defendant, S.B. would be able to mitigate the pain caused by termination "to a very large extent." He further observed that removal from the care of S.B. "would cause
[X.M.] to regress in terms of his learning and behavior." We conclude that DYFS established the elements of prong four by clear and convincing evidence. The judge's determination is well-supported by the record.