October 11, 2011
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF A.Q.M., A MINOR.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0167-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Messano, Yannotti and Espinosa.
Defendant C.M. appeals from the Family Part's June 8, 2010 order terminating her parental rights to her son, A.Q.M. Defendant raises the following points on appeal:
POINT I - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1 WERE MET POINT I(A) - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT A.Q.M.'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG: THERE WAS NO PHYSICAL HARM CAUSED OR THREATENED TO A.Q.M.
POINT I(B) - THERE WAS INSUFFICIENT EVIDENCE UNDER THE SECOND PRONG TO
PROVE BY CLEAR AND CONVINCING EVIDENCE THAT C.M. WAS UNWILLING OR
UNABLE TO ELIMINATE THE HARM FACING A.Q.M., OR IS UNABLE OR UNWILLING
TO PROVIDE A SAFE AND STABLE HOME FOR HIM, AND THE DELAY OR PERMANENT
PLACEMENT WILL ADD TO THE HARM
POINT I(C) - D.Y.F.S. FAILED TO
PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS
TO HELP C.M. CORRECT THE CIRCUMSTANCES THAT LED TO [A.Q.M.'S] REMOVAL,
ONLY PROVIDING VISITATION AND EVALUATIONS, AND THE COURT FAILED TO
CONSIDER ALTERNATIVES TO TERMINATION OF HER PARENTAL RIGHTS
I(D) - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT TERMINATION OF C.M.'[S] PARENTAL RIGHTS WILL
NOT DO MORE HARM THAN GOOD, UNDER THE FOURTH PRONG, WHERE THE EXPERT
EVALUATED THE BIRTH MOTHER WHILE THE FOSTER MOTHER WAS IN
THE WAITING ROOM, WHICH WAS KNOWN BY THE
We have considered these arguments in light of the record and applicable legal standards. We affirm.
A.Q.M. was born on October 19, 2006, when defendant was nineteen years old. He is defendant's only child. Co-defendant L.L.B. is A.Q.M.'s father and has maintained little contact with him and defendant since the child's birth.*fn1
The Division of Youth and Family Services' (DYFS or the Division) involvement with defendant began shortly after the birth of A.Q.M. On June 13, 2007, DYFS received information from A.Q.M.'s aunt, C.R., that defendant had left the child "in the family home alone [the previous] night." According to the screening summary, the child was alone from 9 p.m. to 3 a.m. while the "whereabouts" of defendant were "unknown." The report also noted that A.Q.M., who suffered from asthma, had not been given his medication, adequate food or appropriate medical care. DYFS determined that the "allegations of neglect . . . [were] substantiated."
Defendant's cousin, L.L., agreed to take A.Q.M. and defendant into her care and custody, and DYFS began to provide services to the family. Defendant, however, initially did not comply with the Division's request that she attend parenting classes.
On January 29, 2008, DYFS again intervened following reports that defendant was not providing A.Q.M. with food, immunizations, "adequate clothing" and "[was] giving [A.Q.M.] Robitussin for adults." The Division's case worker determined that A.Q.M. had not "been eating at all"; had "trouble breathing"; was not properly clothed or fed; and was left alone "with whomever [wa]s staying with [defendant]." However, DYFS took no further action at that time.
On February 23, the Division responded to a third referral. An anonymous reporter told DYFS that defendant's home was "filthy," with the "sink . . . full of dirty dishes" and an "unsanitary" bathroom. The caller also alleged that A.Q.M. "d[id] not have a crib or bed to sleep in," the home lacked food and the child "wa[s] behind in his immunizations." It was also rumored that defendant was pregnant.
Upon another home visit, the Division's caseworker concluded that although defendant "appear[ed] to have limited functioning, . . . she [was] trying to do good for her son." DYFS advised defendant to apply for Medicaid and referred her for substance abuse counseling after she admitted using marijuana.
On February 27, defendant was psychologically evaluated by Eric Kirschner, Ph.D. Kirschner observed that she "was defensive and guarded" and suffered from "irritability . . . feelings of hopelessness, low self-esteem, and social withdrawal." Defendant admitted that she had attempted suicide and was sexually assaulted as a child. Kirschner concluded that defendant needed continued counseling in order to be an effective parent to A.Q.M. and that "[t]he needs of her child [were] secondary to her own." He further found that:
[Defendant] lacked insight into her significant emotional impairments which have likely served to compromise her judgment and parenting abilities. . . . Without proper treatment, [her] ability to be responsive to her child's needs is questionable and therefore the threat of child endangerment remains prominent. The available clinical data raises serious questions about [defendant's] ability to adequately care for and meet the needs of her young child. Overall, [defendant] displayed numerous psychological impairments and parenting deficits, which likely interfere with her ability to provide an adequate environment for her child.
Kirschner recommended that defendant continue to attend parenting classes and undergo "anger management treatment."
On February 29, when the Division was notified that defendant had missed three parenting skills sessions, its caseworker again visited defendant's home. A.Q.M. still had not received his immunizations, did not have a proper place to sleep, and the home remained unclean. On March 4, the Division filed a verified complaint seeking the emergency removal of A.Q.M. and custody of the child. The request was granted, and A.Q.M. was placed in foster care.
DYFS arranged for supervised visitations between defendant and A.Q.M., but, by May 2008, defendant began to miss these sessions. By September, however, defendant began to avail herself of the services provided. She began to regularly attend parenting classes, and, in December 2008, the provider, Babyland Family Services, informed DYFS that the "case goal" was "[r]eunification," that defendant "care[d] for [her] child, [and] they ha[d] a strong bond." On December 18, defendant had "successfully completed the [parenting] program" and earned positive reviews from the facility's counselors.
In the interim, DYFS continued to assess other members of defendant's family for foster care placement. The Division contacted C.R. as to her "ab[ility] to get a bigger apartment in order to accommodate" A.Q.M.'s placement with her. Defendant's mother, A.R., was also considered by the Division but was ruled out after the discovery of an "active traffic warrant" for A.R.'s husband. Defendant's sister, C.M., who lived in Georgia, was also ruled out due to an outstanding warrant that had not been resolved. In February 2009, A.Q.M. was temporarily placed in L.L.'s home.
The social worker, Paul N. Anyeji, who was providing counseling services to defendant, wrote his evaluation on February 6. He indicated that defendant "continued to struggle with her emotional pain from the past." He opined that defendant was "in treatment because she wants her son back in her care and not because she wants to make some therapeutic gain in order to be a better parent." Anyeji further noted that defendant was "very difficult to engage in treatment" given her impaired cognition. He recommended that A.Q.M. not be returned to defendant's care "unless her sister will assume the [role of] primary caretaker of the son."
L.L. expressed a desire to adopt A.Q.M., and, on April 2, 2009, DYFS filed an order to show cause and verified complaint seeking guardianship of the child. However, on June 5, DYFS sought the judge's permission to move A.Q.M. to another foster home following reports that L.L.'s home was unsuitable for a young child. L.L. had failed to appear for scheduled court hearings and "her home was filthy." She repeatedly denied the law guardian access to assess her home's conditions. A.Q.M. was placed in the home of M.F. where he has since remained.
According to the testimony at trial, A.Q.M. "receive[d] excellent care" from his new foster mother.
Meanwhile, the Division continued to explore other placement options. On August 19, a "rule out" letter was sent to M.L., defendant's cousin, who was "no longer interested in being considered as a relative resource." On September 28, DYFS ruled out C.R. as a foster parent because defendant was "resid[ing] with [C.R.] in the home" and the placement would not be healthy for A.Q.M. The Division also learned that C.R. was planning to "mov[e] to Georgia with [defendant]," so C.R. was never "assessed again[.]" C.R. never sought review of the rule out letter.
In fall 2009, defendant maintained a regular schedule of supervised visits with A.Q.M. She enrolled in the "Medical Office Technology Program" at Drake College of Business.
On December 1, 2009, defendant was psychologically evaluated by Andrew P. Brown III, Ph.D. Defendant admitted that, beyond an allegation that she "'didn't have Medicaid and [A.Q.M.] ha[d] asthma,'" she did not fully understand why DYFS removed A.Q.M. from her custody. Brown concluded:
The present assessment suggests that despite satisfactory completion of parenting education, [defendant] will likely have difficulty attending to the special needs of her son independent of supervision. . . . With regard to parenting, [she] appears rather rigid in her conceptualization of parenting and this renders her to be likely authoritative in her manner of relating to the child. [She] appears to have unrealistic adult like expectations for her son's behavior and this perception along with poor insight and estimated mentally deficient intelligence may serve to compromise this parent['s] judgment.
Brown also conducted back-to-back bonding sessions with defendant and A.Q.M.'s foster parent, M.F. Brown noted that A.Q.M. "refer[red] to [M.F.] as 'mom,'" and that there was a great deal of "affection" between them. He concluded that M.F. had become the "psychological parent" for A.Q.M. and that terminating defendant's parental rights would "do more good than harm," since M.F. then could pursue adoption.
During the bonding session with defendant, A.Q.M. was "reluctant with his natural mother" and had to be "coerced or forced" to engage in activities with her. A.Q.M. never referred to defendant as "mommy." M.F. was in a nearby room where A.Q.M. could see her during the session. Brown recommended termination of defendant's parental rights and adoption by M.F.
The guardianship trial commenced on March 19 and took place over several days in March and April 2010. Brown's expert testimony reiterated the findings and conclusions he reached during his evaluation of defendant. He noted that defendant's residential and employment status were quite uncertain given that defendant had "last worked in 2005" and "was living with her cousin in a one-bedroom apartment." Based upon various tests he administered to defendant, the interviews he conducted and his review of the Division's reports, Brown opined that defendant was not "capable of parenting alone" without supervision.
As to the bonding evaluations, Brown emphasized that A.Q.M. considered his foster mother as his psychological parent and did not display the same levels of attachment and bonding to defendant. Brown stressed that "adoption would be the best thing for [A.Q.M.], because it maximize[d] his potential to grow and develop and mature into a well-adjusted, normal, functioning person."
Kai Collins, a DYFS case worker, testified that A.Q.M. "fits right into [the foster] family." On cross-examination, Collins acknowledged that defendant had enrolled in school, attempted to obtain appropriate housing and supplied the Division with the names of relatives with whom A.Q.M. might be placed. Collins conceded that although defendant moved out of C.R.'s home at the time of trial, the Division never sought to re-qualify C.R. Defendant did not testify or present any witnesses.
On June 8, 2010, the judge rendered her oral decision terminating defendant's parental rights. She began by noting that although defendant had "certain cognitive deficits," she was a high school graduate with a certificate as a nursing assistant. The judge recounted defendant's turbulent family history, which included the deaths of her grandmother and her cousin, and her unstable relationship with A.Q.M.'s father. The judge found that defendant was unable to "properly administer [the] medication" A.Q.M. needed for his asthma-related problems. The judge further found Brown's testimony "competent and credible," but noted that "the methodology [he] employed . . . during the bonding evaluation . . . wa[s] questionable," since A.Q.M. was forced to spend time with the foster mother and defendant "back-to-back."
The judge made specific findings and conclusions with respect to each of the four prongs on the statutory best interests test contained in N.J.S.A. 30:4C-15.1(a). We discuss those in greater detail below. The judge then concluded:
[Defendant] loves [A.Q.M.] She has experienced the loss of her grandmother, who was a pivotal figure in her life. She has been emotionally abandoned by the putative father of this child. She has no other children, she has no job and she does not have stable housing.
The Court recognizes that the termination of her parental rights to
[A.Q.M.] will be painfully difficult for [defendant]. In balancing the
potential harm for [A.Q.M.] that terminating his relationship with his
birth mother will have against that which might come from removing him
from the home of [M.F.], the Court finds that the strength of
[A.Q.M.'s] relationship with [M.F.] and the foster family is stronger
than the strength of his relationship with his birth mother.
The judge entered the order terminating defendant's parental rights.
We state some general principles that inform our review. "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice."
Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
When the State seeks to terminate parental rights, it must prove by clear and convincing evidence each of the following four standards:
(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) [DYFS] 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
These four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (citation omitted).
Defendant argues that DYFS failed to prove the first prong because "there was insufficient evidence to show that any harm occurred or was threatened." Regarding the Division's proofs as to prong one, the trial judge found that A.Q.M.'s medical needs were compromised when left in defendant's care. She noted that defendant lacked a stable home and employment, admitted that she left A.Q.M. alone, and failed to properly provide adequate nourishment for the child.
When considering the first prong of the best interests test, the court's focus is not "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." K.H.O., supra, 161 N.J. at 348. Where there is "a clear record showing a pattern of parental inaction and neglect, amounting to unfitness," N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 615 (App. Div.), certif. denied, 192 N.J. 68 (2007), the courts "need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
Here, the trial judge correctly concluded that A.Q.M.'s safety, health and development had been, and would likely continue to be, endangered if he was returned to defendant's custody. Although defendant recognized that A.Q.M.'s asthma required her vigilance regarding his medication and treatment, she conceded that her inability to secure Medicaid eligibility prevented her from regularly "get[ting] the prescription filled [on] time." She also failed to obtain her son's needed immunizations. Defendant acknowledged that even after attending parenting and nutrition classes, she often fed A.Q.M. junk food. DYFS contact sheets admitted in evidence repeatedly documented defendant's pattern of leaving her child home alone for hours at a time, and exhibiting a lack of care toward the conditions of her home, which was often "filthy" and "unsanitary."
In short, the trial judge's conclusion that DYFS had proven the prong one standard by clear and convincing evidence is amply supported by the record.
Defendant argues that DYFS failed to prove the second prong because "there was no proof that her situation, with the aid of [DYFS], could not change in the foreseeable future." The judge specifically found that defendant has been "dragging her feet during the early stages of litigation" with respect to housing, and that despite her "minimal" compliance with services, defendant was still "liv[ing] in a one-bedroom apartment that she share[d] with her cousin," and was "unemployed." The judge concluded that defendant "d[id] not demonstrate an awareness of the panoply of responsibilities required to effectively parent and protect [A.Q.M.]."
The second prong of the best interests standard "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007).
"Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). However, the second prong is also established when the evidence demonstrates that "the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of h[is] bond with foster parents," K.H.O., supra, 161 N.J. at 363.
Here, the trial court did not err in concluding that C.M. was unwilling or unable to eliminate the harm posed to A.Q.M. should he be left in her custody. While defendant's actions indicated she was willing to address some of the issues that led to A.Q.M.'s removal in the first instance, she was unable, despite the provision of services, to fully comprehend the enormity of her parenting obligations. A.Q.M.'s basic medical needs were not met; yet, defendant failed to see the significance of her shortcomings in this regard.
We have noted that instability and lack of permanency adversely affect the development of a child, and the child's best interests cannot be sacrificed because of a parent's inability to address potential future harms, despite her willingness to try. See N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) ("[T]he New Jersey statutes reflect reforms acknowledging the need for permanency of placements by placing limits on the time for a birth parent to correct conditions in anticipation of reuniting with the child."), certif. denied, 180 N.J. 456 (2004); see also K.H.O., supra, 161 N.J. at 358 (bolstering the longstanding principle that birth parents should only have a limited time to eliminate the harm facing their child).
In this case, the trial judge correctly concluded that the Division had established the second prong of the statutory test by clear and convincing evidence.
Defendant contends that DYFS failed to prove the third prong because despite her obvious developmental disabilities, the Division never "follow[ed] up" to obtain the services of the Division on Developmental Disabilities, and never adequately assessed C.R. as a possible placement resource. The trial judge detailed a chronological summary of the Division's contact with defendant since December 2008, and noted the various relatives that DYFS considered for alternative placements. She noted that "[n]ot one relative or family friend appealed the rule-out letters that were served upon them, by the [D]ivision." The judge also considered the various programs and services that DYFS furnished to defendant before concluding that the evidence established that the Division had made "reasonable efforts to reunite [defendant] with [A.Q.M.]."
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," which consist of actions 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 . . . ." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts "is not measured by their success." D.M.H., supra, 161 N.J. at 393.
Here, the Division made reasonable efforts to reunite defendant with A.Q.M. DYFS' involvement began in 2007 when it referred defendant to welfare services and various parenting classes. The Division continued to intervene throughout 2008 --as the trial court noted -- by scheduling psychological evaluations for defendant and demanding that she attend parenting sessions, obtain health insurance for herself and her child and submit to substance abuse counseling sessions.
DYFS cannot be held responsible for the inaction of another government agency, in this case, the Division on Developmental Disabilities. Nor can it fairly be said that DYFS failed to adequately evaluate relatives as possible placement resources.
In short, the trial judge properly determined that DYFS had satisfied prong three of the statutory test.
Defendant argues that DYFS failed to establish prong four of the statutory test because there still existed a strong bond between her and her child, and because it was unfair to conduct the bonding evaluation between her and A.Q.M. while his foster mother was outside the room and within eyesight. The trial judge found that the circumstances in M.F.'s home were conducive to A.Q.M.'s development, noting the environment was "hyg[ienic]" and "clean" and the foster mother "[wa]s vigilant in her attentiveness to [A.Q.M.'s] medical needs." The judge found Brown's testimony to be credible, and accepted his opinion that A.Q.M. viewed M.F. as his mother, and that the child's bond with defendant was simply not strong or significant.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . 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[?]" Id. at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (citation omitted). Adequate proof as to prong four does not and "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid.
Here, there is no question that A.Q.M. had developed a strong, loving bond with his foster family, and that his attachment to his biological mother was a "reluctant" one. Unlike defendant, M.F. was particularly cognizant of, and attentive to, the child's special medical needs. Brown's expert testimony as to the relative strength of the two relationships was not seriously disputed during trial.
However, defendant argues that Brown's "methodology . . . compromised" the bonding evaluations and therefore tainted his opinions. The judge, of course, took note of the "methodology" employed, yet, she nevertheless concluded that under all the circumstances presented, Brown's testimony was credible and his opinions were unassailable.
We accord great deference to the trial judge's evaluation of the testimony before her, particularly as it relates to the credibility of the witnesses presented. See E.P., supra, 196 N.J. at 104; see also, N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010)(noting the deference accorded to the judge's factfinding because of "the family courts' special jurisdiction and expertise in family matters") (citation omitted)). We find no reason to disturb the trial judge's conclusions regarding the expert testimony presented simply because M.F. was present in a nearby room while Brown evaluated A.Q.M.'s relationship with his mother.