January 6, 2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF M.J.H. AND G.A.H., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-51-11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 6, 2011
Before Judges Reisner and Simonelli.
Defendant M.H., the biological mother of M.J.H, born in June 2009, and G.A.H., born in April 2010, appeals from the January 28, 2011 Family Part order, which terminated her parental rights to the children. We affirm.
Defendant has been involved with plaintiff Division of Youth and Family Services (Division) since childhood. She resided in several foster placements since the age of two-andone-half, was diagnosed with Reactive Attachment Disorder (RAD), and has chronic emotional difficulties that have negatively impacted her overall functioning and relationships with others. She lived in a residential treatment facility until the age of eighteen, when the Division placed her in a transitional living facility for persons with mental illness. Since 2007, the Division has provided individual therapy for defendant to address her underlying issues of abandonment and loss associated with her long history of childhood neglect and maltreatment.
Defendant became pregnant with M.J.H. at the age of nineteen, and was not permitted to continue living at the transitional living facility after the child's birth. Although she had made progress while at that facility, she was not yet capable of independent living. She also had no viable relative caretakers or family members who could assist her in caring for the child. The Division offered defendant a placement in a "Mommy and Me" program that would provide housing and support for her and her child. Defendant declined the placement, and decided to live with A.D.,*fn1 a thirty-nine-year-old man she had met at a soup kitchen where they obtained their meals. A.D. had anger issues, smoked marijuana daily, and viewed pornographic videos in his home. Defendant claimed she had a platonic relationship with A.D. and her plan was to move into his home, co-parent M.J.H. with him, and allow him to adopt the child.*fn2
Defendant had no plan for the future in the event her relationship with A.D. terminated.
In December 2008, the Division referred defendant for a psychological
evaluation to assess her ability to parent. The evaluation revealed
that defendant "has a significant history of loss, abandonment,
rejection, disrupted placements, neglect and abuse . . . [which have]
resulted in significant attachment difficulties that underlie her poor
decision making, poor choices in men and impulsivity[.]"*fn3
The evaluation also disclosed that defendant was motivated by
neediness, would prioritize her desire to meet her emotional needs
over M.J.H.'s needs, lacked insight into her poor judgment and poor
decision making, and had cognitive limitations that may play a role in
some of her difficulties. The evaluation concluded that defendant was
a "high-risk parent for child neglect." Also, defendant's therapist
concluded that defendant "continue[d] to be in need of transitional
services[,]" did "not appear capable of making therapeutic changes[,]"
had poor insight and judgment, needed "long-term concrete services and
monitoring that will assist her with daily living skills, hands-on
parenting skills, occupational skills and housing/financial needs[,]"
and did not appear capable of independent living "[g]iven her
developmental age (young teen)[.]"
The Division decided to obtain custody of M.J.H. after his birth based on defendant's psychological evaluation, her lack of progress with services, and concerns raised by her plan to co-parent with A.D. The Division did not advise defendant of its decision because it feared she would flee with the child. The Division placed M.J.H. in a foster home after his birth, and provided services to defendant and A.D., including individual therapy, parenting classes, and therapeutic supervised visitation, as well as anger management for A.D.
In June 2009, the Division referred A.D. for a psychological evaluation, which concluded as follows:
[A.D.] is not sufficiently stable to function as an appropriate caretaker for [M.J.H.] He exhibits cognitive limitations, significant difficulties coping with stress, and difficulty managing difficult situations. He also exhibits significant anger management difficulties. [He] tends to be impulsive, self-centered, emotionally volatile, and emotionally needy. He does not have the frustration tolerance to prioritize a child's needs over his own. [He] does not recognize [defendant's] parenting limitations and therefore, does not provide a neglect risk lowering influence in this household. He is deficient in parenting skills. [His] intellectual screening indicated that he functions in the mentally retarded range.
In October 2009, the Division referred defendant for a cognitive assessment, which revealed concerns about her maturity level and impulsivity, and concluded that her low test scores on the verbal comprehension subtest "can affect her judgment, daily living skills, and ability to problem solve. These deficits can contribute to an inability to comprehend and utilize skills that have been taught to her."
In February 2010, the Division referred A.D. for a cognitive assessment. He became hostile and aggressive during testing. The assessment concluded that he was "likely to be unmotivated to learn new information or attempt to change his behaviors[,]" "did not take responsibility for his faults[,]" avoided "functioning at an adequate level[,]" and would likely "not have the ability to problem solve on his own[,] . . . give up prematurely and lose his temper[.]"
Defendant became pregnant with G.A.H. but denied knowing she was pregnant until she went into labor in April 2010. She claimed that the pregnancy resulted from a rape. Shortly before G.A.H.'s birth, the Division referred defendant for a second psychological evaluation to assess her progress. The evaluation revealed that defendant "continued to present as an immature, irresponsible, emotionally needy adult with a continued history of poor judgment in men[,]" "lacked insight into [A.D.'s] personality difficulties, parenting deficits, and cognitive limitations," lacked "insight into her poor judgment and poor decision making[,]" continued "to be motivated by her emotional neediness and dependency issues, and her desire to meet these needs will continue to be prioritized over the needs of [M.J.H.]" The evaluation concluded that defendant continued to be a high-risk parent for child neglect. The Division obtained custody of G.A.H. after her birth and placed her in the same foster home as M.J.H. The foster parents wanted to adopt both children.
In June 2010, the Division referred A.D. for a psychiatric evaluation. He was diagnosed with "anxiety disorder NOS" and "mild mental retardation." The evaluation concluded that he had impaired judgment and insight, a limited understanding of his anxiety and how it affects him, and significant cognitive limitations, which affect his insight.
The Division's expert, Elizabeth M. Smith, Psy.D., and the Law Guardian's expert, Rachel Jewelewicz-Nelson, Ph.D., evaluated defendant and A.D., and conducted bonding evaluations between the children, defendant and A.D., as well as between the children and their foster parents. Dr. Smith noted that defendant was a "troubled young woman with a high degree of psychopathology that grossly impaired her ability to care for herself much less young children." Defendant was diagnosed with a personality disorder NOS, and was the victim of chronic childhood trauma and numerous dislocations; she seemed never to have had any stability or security outside of a group home, functioned at a very marginal level, "presented as childlike and incapable of holding a job or maintaining her own housing independently[,]" and had poor self esteem and problems with anger. Dr. Smith emphasized that defendant has significant attachment issues, which extend to her children, and seemed largely unable to make a real emotional connection to either child.
Dr. Smith noted that A.D. was "an emotionally fragile man with significant developmental disabilities," suffered from mild mental retardation, displayed pronounced schizoid, compulsive and paranoid personality features, was highly anxious, obsessive, suspicious and socially isolated, had poor interpersonal skills, became "argumentative and hostile to defend against perceived humiliations and slights," had poor coping skills and difficulty adjusting to changes in routine or expectations, and appeared heavily invested in pornography. Dr. Smith concluded that neither defendant nor A.D. was capable of adequately parenting a child, and posed a high risk for child abuse and neglect if the children were returned to defendant.
As to bonding, Dr. Smith found that M.J.H. "has a strong attachment to his foster parents who raised him from infancy," and is familiar with defendant and A.D. but is "confused and distressed in their presence." She concluded that M.J.H. would suffer severe and enduring emotional harm if removed from his foster parents, and defendant and A.D. would be "incapable of mitigating the profound loss and trauma" the child would experience if he were returned to defendant's care even with professional assistance. Dr. Smith also concluded that defendant and A.D. are incapable of providing adequate care for G.A.H.; she is thriving in her foster home, and it is in her interest to remain with her foster parents and be raised with her brother.
Dr. Nelson noted that defendant "lacks insight into her own drives and needs," is unable to place the children's needs ahead of her needs, is "dependent on others for housing and having a purpose in life[,]" and lacks the higher order cognitive functioning to make safe and sound decisions. Defendant has a personality disorder characterized by dependent and narcissistic traits, and a reactive attachment disorder, which means she lacks the capacity for empathy and deep and enduring emotional ties to others, including her children. Defendant is also incapable of being appropriately attuned to the children's emotional and physical needs.
Dr. Nelson noted that A.D. is "cognitively limited, easily excitable, paranoid and highly defensive[,]" has symptoms of an obsessive-compulsive disorder and extreme anxiety, "perseverates and ruminates about ideas and thoughts to the point of being socially inappropriate[,]" and does not know how to engage the children on an emotional level. Dr. Nelson also noted that defendant and A.D. have not made substantial progress in treatment, and, given their personality styles and deficits, "additional treatment, education and/or therapy is not likely to enhance their capabilities or ameliorate their deficits." Dr. Nelson concluded that placing the children with defendant and A.D. will put them at risk of harm from emotional and physical neglect.
As to bonding, Dr. Nelson found that M.J.H. has a clear preference for his foster parents over defendant and A.D., the foster parents are better attuned to his emotional and physical needs, and they give him a greater sense of security, nurturing and stability. Dr. Nelson also found that G.A.H.'s attachments were less clear due to her young age, but her reluctance to leave her foster parents' arms during the bonding evaluations suggested that she has a stronger attachment to them than to defendant and A.D. Dr. Nelson concluded that adoption by the foster parents was in the children's best interests, and that termination of defendant's rights would not do more harm than good.
Defendant's expert, Arnaldo Apolito, M.D., conducted a psychiatric evaluation of defendant, but did not evaluate or speak to A.D. He agreed that defendant suffered from RAD and a personality disorder, but did not find this would affect her ability to parent. He admitted, however, that defendant was not ready for reunification, and she needed additional time, guidance and parenting education. Dr. Apolito did not conduct any bonding evaluations.
Following a three-day bench trial, relying on Drs. Smith's and Nelson's testimony and the testimony of the Division's witnesses, which she found credible, Judge Whipple made extensive factual findings, and concluded that the Division had proved all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. As to prong one, the judge found that defendant's psychological problems foreclosed her from creating an environment within which she could adequately care for the children, which posed a risk of harm to them. The judge emphasized that defendant never lived on her own, demonstrated minimal ability to live independently, ate most of her meals at soup kitchens with A.D., was unemployed, had great difficulty in meeting her own needs, and had questionable judgment and a history of inappropriate attachments to men, some of whom abused her. The judge also found that defendant had not reached a level of adult functioning, and her plan to co-parent with A.D. may exacerbate the problem since neither defendant nor A.D. functions at a level sufficient to eliminate the risk of future harm to the children. The judge concluded that defendant's limitations prevent her from being able to parent the children safely, since both she and A.D. lack the mental or psychological ability sufficient to eliminate the risk of future harm.
As to prong two, Judge Whipple found that the record is "replete with evidence" that defendant is unable to function as an adult herself and lacks the capacity to safely parent, and a delay in permanency would add to any harm the children would suffer. The judge emphasized that defendant's efforts at independent living had failed, defendant lacked insight into her and A.D.'s limitations, and defendant's inability to form deep and appropriate attachments created a risk of emotional harm to the children. The judge also emphasized that defendant has a longstanding, pervasive personality disorder and "would need treatment for a very long time with varied support systems simply to be able to properly care for herself, and the children cannot wait for that to happen."
As to prong three, Judge Whipple found that the Division made appropriate and reasonable efforts, both before and after M.J.H.'s birth, to provide services to defendant and A.D., and it explored every potential alternative placement, but none were available or appropriate.
Finally, as to the fourth prong, Judge Whipple found that defendant was not in any position to take custody of the children. The judge emphasized that defendant's problems with housing, employment, mental health and self-sufficiency are ongoing and unresolved. She concluded that termination of parental rights followed by adoption by the foster parents is in the children's best interests. This appeal followed.
On appeal, defendant contends that the Division failed to prove each prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. She also contends that her procedural and substantive due process rights were violated by (1) the Division's removal of the children without prior notice; (2) the failure to hold a fact-finding hearing as to G.A.H.; (3) the failure to provide her with notice of the Division's intent to terminate her parental rights to G.A.H.; and (4) the Division's failure to provide notice and a hearing on the impact of A.D.'s involvement in this case.
Our Supreme Court has set forth the standards that govern our review of this matter as follows:
[A]ppellate courts "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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation and internal quotations marks omitted). Indeed, we recognize that "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). [N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010).]
Thus, "if there is substantial credible evidence in the record to support the trial court's findings, we will not disturb those findings." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 226 (2010). However, "if the trial court's conclusions are 'clearly mistaken or wide of the mark[,]' an appellate court must intervene to ensure the fairness of the proceeding." Id. at 227 (quoting N.J. Div. of Youth & Family Servs. v. E.P. 196 N.J. 88, 104 (2008)). We owe no deference to the trial court's legal conclusions, which we review anew. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).
Applying these standards, we discern no reason to disturb Judge Whipple's conclusion that the Division established each prong of N.J.S.A. 30:4C-15.1a by clear and convincing evidence, which is supported by ample credible evidence in the record. We affirm substantially for the reasons expressed by the judge in her comprehensive and well-reasoned oral opinion rendered on January 28, 2011.
We also conclude that defendant's due process arguments lack merit. In analyzing a due process claim, a court will balance three factors:
(1) identification and specification of the private interest that will be affected by the official action; (2) assessment of the risk that there will be an erroneous deprivation of the interest through the procedures used . . .; and (3) evaluation of the governmental interest involved, including the added fiscal and administrative burdens that additional or substitute procedures would require. [N.J. Div. of Youth & Family Servs. v. M.Y.J.P., 360 N.J. Super. 426, 465 (App. Div.), certif. denied, 177 N.J. 575 (2003), cert. denied, 540 U.S. 1162, 124 S. Ct. 1176, 157 L. Ed. 2d 1207 (2004).]
Due process is thus "a flexible concept and calls for such procedural protections as the particular situation demands." Id. at 464. An application of this framework to the facts of this case demonstrates that defendant's due process rights were not violated.
The Division made an effort to prevent separating defendant from M.J.H. by offering her a placement in a "Mommy and Me" program, which defendant declined. Although the Division did not give defendant prior notice of its decision to obtain custody of the child at birth, the result would not have been any different if it had done so, except that defendant may have fled with the child, which was the Division's reason for not advising her of its decision. Nevertheless, the Division has the authority to take children into its care, custody, and supervision when it appears that "the child's safety or welfare will be endangered unless proper care or custody is provided[.]" N.J.S.A. 30:4C-11. The statute does not require the Division to actually notify a parent of its plan to take custody of a child prior to doing so. See also N.J.S.A. 9:6-8.29 to -8.30. Also, the Division is not required to provide reasonable efforts to prevent placement if "[e]fforts to prevent placement were not reasonable due to risk of harm to the child's health or safety." N.J.S.A. 30:4C-11.2b.
Here, defendant's psychological evaluation prior to M.J.H.'s birth concluded that she was "a high-risk parent for child neglect." Thus, the Division had the authority to take custody of M.J.H. without notifying defendant or making reasonable efforts to prevent the child's placement. Further, the Division removed M.J.H. pursuant to an emergency removal without court order, and the Division complied with the procedural requirements outlined in N.J.S.A. 9:6-8.29 and -8.30 in so doing. Accordingly, there was no violation of defendant's due process rights with respect to M.J.H.
There also was no due process violation as to G.A.H. The Division was not required to hold a fact-finding hearing as to G.A.H. before adding her to the Title 30 action. See N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 260 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010) (holding that the Division is not required to try a Title 9 action to conclusion before bringing a Title 30 action for the termination of parental rights). Also, based on defendant's first and second psychological evaluations, the results would have been no different even if there had been a fact-finding hearing as to G.A.H..
Finally, we discern no due process violation regarding A.D. The record reveals that shortly after M.J.H.'s birth, a Division caseworker advised defendant why the Division sought to take custody of the child:
Worker explained that [A.D.]'s temper is frightening and we are concerned for both her safety and the safety of [M.J.H.]. Worker stated that for the time being, the Division is going to place [M.J.H.] in a Division foster home while [defendant] works some things out and decides what she needs to do. Worker asked [defendant] to give worker any family members she may have that could help her out, and worker will reach out to them, [especially] her aunt who was here with her last night.
[Defendant] remained quiet but did state to workers that [A.D.] was upset with her about not calling him and that he has just stated that he is going to give her one more chance. [Child Welfare Services] stated that is the concern we have, that [A.D.] will do something to the baby or her, or kick them out if he gets upset. In addition, [defendant] added that [A.D.] had stated that he thinks [defendant] is putting [M.J.H.] ahead of him. . . . Worker stated that it is concerning that [A.D.] thinks that way of the baby, and that he may try to harm the baby if [A.D.] feels [defendant] is choosing [M.J.H.] over him.
Thus, defendant was aware of the Division's concerns about A.D.'s role in raising the child from the moment the Division obtained custody of M.J.H. After M.J.H.'s birth, the Division continued to discuss its concerns about A.D. with defendant. If defendant could have developed alternative plans to prevent M.J.H.'s placement in a foster home prior to his birth, she certainly could have also done so after his removal. Instead, she remained with A.D., and continued to offer him as her only plan for the children.