March 1, 2012
DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
IN THE MATTER OF THE GUARDIANSHIP OF K.V.S. AND K.R.S.,
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-03-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2012
Before Judges Graves, Harris and Koblitz.
Defendant N.S. is the biological mother of K.V.S. (fictitiously Karen), born October 11, 2007, and K.R.S. (fictitiously Kathy), born a year later on October 27, 2008. N.S. appeals from a Family Part order entered on October 22, 2010, which terminated her parental rights to the children. The order also terminated the parental rights of the unidentified biological father or fathers of the children. Because the trial court's findings and conclusions are supported by clear and convincing evidence, we affirm.
N.S. was born on May 12, 1991. Two years later in May 1993, the Division of Youth and Family Services (the Division or DYFS) became involved with N.S.'s family because her mother was abusing drugs. The Division provided addiction services at that time. However, when N.S.'s mother gave birth to another child in 1996, she tested positive for illegal drugs and agreed to participate in an outpatient substance abuse program.
Between June 1999 and November 2004, the Division received seven referrals "alleging inadequate supervision, physical abuse, and neglect" by N.S.'s mother. During this period, N.S. received counseling and other services through the Children's Home Society of New Jersey and other service providers. For most of this period, N.S. remained in the custody of her mother, but she sometimes stayed with other relatives, including her paternal grandmother, H.N.
In September 2005, the Division received a referral regarding a physical altercation between N.S. and her sister, V.S., which resulted in the police being called to the house. In addition, N.S.'s mother advised a caseworker on June 6, 2006, that N.S. was staying at her paternal grandmother's house and was not attending school on a regular basis.
On February 19, 2007, when N.S. was fifteen years old, the Division received a referral from a Trenton police officer indicating that there had been a physical dispute between N.S.'s mother and N.S.'s sister. The officer also stated that there were "ongoing problems" with the family and that the police had been to the home seventeen times during the past year.
Following an investigation, the Division conducted an emergency removal of N.S., her siblings, and her infant niece on February 21, 2007. N.S. initially refused to leave her mother's house and attempted to flee but was stopped by the police. She was placed with her paternal grandmother. However, she ran away that same day and "placed herself" with her maternal aunt, M.S. Although M.S. was not approved for placement, the Division allowed N.S. to remain there.
On February 22, 2007, the Division was granted custody of N.S., and it attempted to provide her with counseling, educational, and other services. For example, on February 26, 2007, the Division referred N.S. to the Sherman Avenue School, but she was not accepted into the program due to "disrespectful behavior" during her intake appointment.
In May 2007, N.S. participated in an evaluation with Chester Sigafoos, Ph.D., to assess her "psychological and neuropsychological capacities and how they may impact on [her] abilities to function in society." In his report dated June 1, 2007, Dr. Sigafoos noted that N.S.'s "behavior was not appropriate during the evaluation. She was suspicious, belligerent and minimally cooperative."
Tests conducted during the evaluation indicated that N.S. has a "Full Scale IQ of 62," placing her in the mildly mentally retarded range of intellectual functioning. In addition, N.S.'s "Psychopathology score [of] 82.00" suggested "marked impairment in psychological functioning and severe psychological problems." Dr. Sigafoos also administered the Millon Adolescent Clinical Inventory and the results suggested that N.S. has a "disdain for the welfare of others," a "self-centered attitude," a "socially-irritable manner," and a "voiced pride in unsentimentality." Dr. Sigafoos found that N.S. exhibited "little or no compassion for others," and that N.S.'s "lack of empathy may lead her to serve only herself regardless of the consequences for others."
According to Dr. Sigafoos, N.S.'s psychological disorders would be difficult to treat, and he recommended placement in a structured residential setting:
The severity of psychopathological conditions within this client will pose a significant obstacle to her to be able to function in society. As a result, treatment will probably be something that she will need to continuously be involved in to some degree.
This is a very disturbed client. She has already eloped from other placements, resists attending school, is in need of considerable multi-modal treatment, needs to be monitored for any drug abuse, and poses a risk of harm to others.
It is recommended the client be placed in a structured residential setting that can provide her the treatment she needs and also insure the safety of others around her.
On August 8, 2007, N.S. was placed in a thirty-day residential program at Grace Hall in Newark, to address her "behavioral and emotional" issues and her "educational delays." While N.S. was at Grace Hall, a urine test indicated that she was pregnant. A subsequent examination at Mountainside Hospital confirmed that she was approximately eight-and-one-half months pregnant.
N.S. gave birth to a baby girl, Karen, on October 11, 2007. Thereafter, the Division filed a verified complaint and an order to show cause requesting the custody, care, and supervision of Karen, which was granted on October 16, 2007. Karen was placed with B.N., N.S.'s paternal aunt. N.S. was placed in the Anchor House in Trenton, but was discharged on November 7, 2007, "for threatening to hit the director." N.S. then went to live with C.M., her aunt.
After the birth of N.S.'s first child, the Division continued its efforts to place her in various residential programs. However, she was either denied admission or refused to attend.
In January 2008, the Millhill Child and Family Development Center (Millhill) began facilitating N.S.'s visits with her daughter because B.N., who was caring for Karen, no longer wanted to supervise the visits. And in February 2008, N.S. began attending the Delaware Valley School for Exceptional Children.
On May 9, 2008, Alexander Iofin, M.D., conducted a psychiatric evaluation of N.S. In a report dated July 12, 2008, Dr. Iofin stated that N.S. should "follow up with a mental health clinic," and he provided the following recommendations:
She needs to be treated with utilization of all applicable treatment modalities that, in her case, should include utilization of psychotherapeutic as well as psycho-pharmacological treatment modalities. Utilization of psychotherapeutic treatment modalities can include individual and group therapy sessions, with the possibility to consider family therapy sessions if they are found to be beneficial in improvement of her overall functioning in accordance with the master treatment plan. Use of psychotropic medications of different classes, including major tranquilizers, mood stabilizers, antidepressants, perhaps other psychotropic medications will be recommended on discretion of the treating mental health team.
Dr. Iofin also found that N.S. required "ongoing supervision in her day to day activities because of her mild mentally retarded level of functioning." Consequently, he recommended that N.S. should not "be considered for unsupervised handling of any minor child."
On June 6, 2008, the Division referred N.S. to the Family Growth Program for parenting classes. But she was not admitted to the program due to her low IQ. N.S. ultimately received some parenting classes through Mercer Street Friends, but she did not complete the program.
In July 2008, Millhill informed the Division that it was no longer willing to facilitate N.S.'s weekly visits with Karen because N.S. "used profanity with the visitation facilitator" and because she failed to cooperate with the program, which included parenting skills training. Therefore, Millhill's services were terminated, and PEI Kids began to supervise visitation in August 2008.
N.S. gave birth to her second daughter, Kathy, on October 27, 2008. A few days later, the Division filed an order to show cause and was granted custody of Kathy. She was placed with her sister, Karen, who was then residing with K.N. and W.N., N.S.'s paternal aunt and uncle. Supervised visitation was arranged for N.S. through PEI Kids, but the visits were characterized as "sporadic."
In December 2008, N.S. was referred to LifeTies, Inc., a program designed to teach independent living skills. N.S. participated for a while, but at some point, she lost interest and did not complete the program.
The trial court entered a permanency order with regard to Karen on March 27, 2009. The court found that the Division had provided appropriate services, including counseling, therapy, parenting skills training, and numerous residential placements, but N.S. refused to cooperate with recommended services. Therefore, the court approved the Division's permanency plan for the termination of N.S.'s parental rights followed by adoption. A similar order was entered with regard to Kathy on June 23, 2009. On July 1, 2009, the Division filed a complaint for guardianship of both children.
In September 2009, the Division received a referral alleging that W.N. was abusing drugs, and that Karen and Kathy were not receiving proper supervision. On September 30, 2009, W.N. was referred for a substance abuse evaluation. However, he did not attend appointments scheduled for October 1, 9, and 19, 2009. Due to W.N.'s non-compliance, the Division's investigation could not be completed, and their home was placed on suspended status.
Additionally, during the Thanksgiving holiday in November 2009, K.N. and W.N. took Karen and Kathy to visit a relative in North Carolina without the Division's permission, and they left N.S.'s three-year-old niece, who was in their care, with a "substantiated perpetrator." Although they initially claimed that N.S.'s niece was with them in North Carolina, K.N. and W.N. subsequently "admitted that they lied to the Division during the initial investigation and apologized for their actions." As a consequence, Karen and Kathy were removed from their home on December 3, 2009, and placed in a non-relative foster home.
During a meeting on December 7, 2009, K.N. and W.N. agreed to address the items in their home that needed to be repaired or corrected to satisfy the requirements for a resource family license; and W.N. agreed to submit to a substance abuse evaluation. In a report dated December 22, 2009, the Institutional Abuse Investigation Unit (IAIU) reported there was no support for "the assertion that [W.N.] uses or has used illegal narcotics." In a subsequent report dated February 8, 2010, the IAIU determined that when K.N. left N.S.'s niece "with an unapproved caretaker," K.N. placed the child "at some risk of harm; but [her] actions did not rise to the level required by statute to find neglect."
The IAIU investigation also called into question K.N.'s and W.N.'s commitment to adopt Karen and Kathy. On December 3, 2009, when the IAIU investigator asked K.N. about her long-term plan for the children, K.N. stated: "I don't know. I can't deal with these allegations anymore. I just don't know if we can do this anymore, it is too stressful." On the same date, when the IAIU investigator spoke with W.N. regarding adoption, he stated he was "on board with the adoption in an effort to support his wife," but he felt "it may be best if [the children were] placed in another home."
On February 1, 2010, Amy Becker-Mattes, Ph.D., completed a psychological evaluation of N.S. In her report dated February 18, 2010, Dr. Becker-Mattes noted that the "evaluation was initiated to shed light on [N.S.]'s psychological state and parenting capacity and to assess what types of services might be beneficial."
On the Millon Clinical Multiaxial Inventory-III, "a test of personality and psychopathology," Dr. Becker-Mattes found evidence that N.S. was experiencing "significant psychological problems with feelings of extreme vulnerability and a sense of acute turmoil." Dr. Becker-Mattes found that N.S. was "someone who has significant self-destructive potential and who seems to be seriously psychologically impaired."
Dr. Becker-Mattes could not draw a conclusion regarding N.S.'s child abuse potential "because [N.S.]'s elevated Faking Good Response Distortion Index rendered the results invalid." N.S. showed an "awareness of alternatives to corporal punishment and a tolerance of a child's autonomy," but she "seemed to lack an understanding of normal child development, demonstrated a low level of empathy with children and tended to see children as objects for adult gratification."
In the "summary and analysis" portion of her report, Dr. Becker-Mattes noted "there was evidence that [N.S.] is functioning in the Below Average range of intellectual ability." Also, personality testing "suggested that [N.S.] has a Borderline Personality Disorder with Paranoid, Schizoid and Schizotypal Features." Dr. Becker-Mattes summarized her findings as follows:
In conclusion, [N.S.] is a young woman of limited intellectual ability with significant psychopathology. She has been unwilling and/or unable to benefit from the remedial services offered to her and has been an undependable participant. She has been largely absent from visitation with her children. She herself can be vulnerable and child-like, when she is not being defiant and oppositional to an extreme. Based on this picture, it is this examiner's professional opinion that [N.S.] cannot be considered as an appropriate caretaker for a minor. This opinion refers to her ability to care for a child now or at anytime in the foreseeable future.
Dr. Becker-Mattes recommended that N.S. "might benefit from a residential placement or a group home that enforced strict controls and wraparound services." She found that N.S. was in need of "counseling, prosocial training, anger management and an educational program," but she doubted that N.S. "would participate in such a program on a voluntary basis." Dr. Becker-Mattes also recommended an "in-depth psychiatric evaluation," and stated that N.S. "may be a candidate for psychotropic medication." Lastly, she recommended that N.S. be given "birth control counseling and services."
On February 24, 2010, Dr. Becker-Mattes conducted a bonding evaluation between N.S. and her two daughters. In her summary and analysis, she noted that N.S. "was initially pleasant and soft spoken with her children," but it soon became apparent that Karen's "curiosity and mobility was a source of irritation" for N.S. Dr. Becker-Mattes found that N.S.'s "interaction with her children was characterized by a need to control." Although N.S. "seemed to be trying to parent appropriately," she "seemed limited in her understanding of what that involves." N.S. appeared to "bully" Karen while playing a word game, and "the results of her insistence on constant repetition may have done more harm than good." Dr. Becker-Mattes noted that N.S. "was not always that pleasant with the girls," and "it was clear that she can become easily irritated and annoyed when the girls do not follow her instructions."
N.S.'s "unpleasant interactions" with her children were juxtaposed with her attempt to "play with them in a constructive and educational manner." However, N.S.'s attempts "were not necessarily effective." At several points during the evaluation, N.S. "became engrossed in something and seemed to ignore" or "be somewhat oblivious" to her children. At other times, when N.S. was attending to one of the children, "she was unable to keep an eye on what the other child was doing."
Based on the "quality of the interaction that occurred, and the behaviors that were observed," Dr. Becker-Mattes found that Karen and Kathy "do not have a close, positive bond with their biological mother." Dr. Becker-Mattes also concluded that the children would not suffer "serious psychological harm" if their relationship with N.S. was terminated.
On March 3, 2010, Dr. Becker-Mattes conducted a bonding evaluation between the children and their foster parents, P.F.D. and E.F.D. (Mr. and Mrs. F.D.), who have expressed their commitment to adopt both children if they become eligible for adoption.*fn1 At the beginning of her report, dated March 10, 2010, Dr. Becker-Mattes noted that when the evaluation was conducted, Karen and Kathy had been with Mr. and Mrs. F.D. "less than two months"; therefore, "the expectations of what would be observed . . . were different than if the children had been residing with [Mr. and Mrs. F.D.] for an extended period of time."
Dr. Becker-Mattes observed that after entering the consultation room, the children immediately began to "spill out the contents of various boxes" and throw "pieces of different puzzles and games on the floor." Both Mr. and Mrs. F.D. tried to address the children's behavior "by asking or suggesting" that they "not empty everything at once," but neither parent "stood up or tried to intervene physically" in what the children were doing. Mrs. F.D. made a "half-hearted attempt" to put the toys away, and "tried to enlist the girls' help, saying, 'Help Mommy clean up,' but the girls continued to do what they were doing."
Overall, Dr. Becker-Mattes characterized the session as "fairly chaotic, with toys, games and puzzle pieces everywhere," and she noted that "both parents seemed somewhat overwhelmed by the girls' disorganized behavior." However, Dr. Becker-Mattes did note that the "one behavior that both [Mr. and Mrs. F.D.] seemed to take a strong stand on was hitting," and that when the children hit each other, both parents told them to "stop what they were doing in no uncertain terms and physically intervened." Dr. Becker-Mattes also noted that when Kathy began crying for unknown reasons, she immediately stopped when Mr. F.D. picked her up. When he tried to put her down, she began crying again, but when he held her, she stopped crying.
Dr. Becker-Mattes found that both Mr. and Mrs. F.D. "appear to be loving, patient adults who care about and who are committed to these children." However, Dr. Becker-Mattes recommended that Mr. and Mrs. F.D. "receive some parenting effectiveness training" because the children would benefit from Mr. and Mrs. F.D. "asserting themselves and being more in charge, thereby giving the girls a greater sense of optimistic" that a healthy bond would develop between the children and the foster parents.
Three witnesses testified during the trial, which took place on non-consecutive days between March 29, 2010, and June 15, 2010. The Division presented testimony from Bethany Andrade, who was employed by the Division as a Family Service Specialist since January 2008, and Dr. Becker-Mattes. N.S. did not testify, but she called Vivian Chern Shnaidman, M.D., as an expert witness.
Although Dr. Shnaidman did not see N.S. with her children, she evaluated N.S. on May 25, 2010, and rendered a psychiatric consultation report on May 31, 2010. Dr. Shnaidman characterized N.S.'s case as "tragic" and noted that "her emotional development has been severely curtailed by her environment and upbringing." Dr. Shnaidman also noted that Oppositional-Defiant Disorder, or ODD, is "a syndrome that develops in children who are inadequately and inappropriately cared for early in life," and she found that N.S. demonstrated "a severe case of ODD." Dr. Shnaidman concluded that "the Division did not sufficiently assist [N.S.] with her problems," and Dr. Shnaidman stated that N.S. could benefit from a residential program:
[N.S.] would actually do well in a residential treatment setting, but she may now be too old for such a program. Perhaps a "mommy and me" type residential program could be found in which she could learn how to care for herself and her children. The ideal situation for her, of course, would be one in which the children could live with family members who could raise them and give [N.S.] access to them, so they would always know who their mother is and that she loves them. [N.S.] needs to see a psychiatrist and try either an antidepressant or mood-stabilizing medication, or both. She suffers from a chronic long-term depression which will require much skilled treatment to begin to resolve.
[N.S.] is actually an intelligent young black woman who loves her kids and who is the product of a chaotic family environment.
She has been given extremely limited guidance and assistance toward changing her inherited destiny. Intensive treatment which should include firm limit-setting, unconditional love (or its clinical approximation, acceptance despite rudeness or non-compliance), and mood-stabilizing and antidepressant medication. Once she is psychiatrically stable, the idea of never permitting her to see her children again, or they, her, can be revisited.
Following a five-day bench trial, the court rendered a comprehensive oral decision on October 22, 2010. The court found "the testimony of Dr. Becker-Mattes to be well reasoned, balanced and credible" and concluded that the Division had proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The court memorialized its decision in an order that same day.
On appeal, N.S. submits the following arguments:
THE TRIAL COURT ERRED IN TERMINATING THE PARENTAL RIGHTS OF THE DEFENDANT-APPELLANT, N.S.
A. THE EVIDENCE DOES NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG THREE OF N.J.S.A. 30:4C-15.1(a) AS THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
B. THE EVIDENCE DOES NOT SUPPORT THE COURT'S FINDING THAT THE STATE MET PRONG FOUR OF N.J.S.A. 30:4C-15.1(a) AS TERMINATION OF N.S.'[S] PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD TO HER MINOR CHILDREN.
Based on our examination of the record and the applicable law, we reject these arguments and affirm.
Our Legislature has recognized the importance of strengthening and preserving the integrity of family life, but it has also recognized 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 best interests of the child standard, initially formulated by the Court in New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591, 605-11 (1986), and codified in N.J.S.A. 30:4C-15.1(a), requires the State to establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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).]
"These standards 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." N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (citing In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)). The considerations involved in determining parental fitness are "extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." K.H.O., supra, 161 N.J. at 348 (internal quotation marks omitted).
In the present matter, N.S. claims that the trial court erred in terminating her parental rights because the Division failed to satisfy its burden of proof with regard to prongs three and four of the best interests test. We do not agree.
As to prong three, the trial court noted that the Division's initial goal was reunification, and the court detailed the Division's efforts to provide services and N.S.'s history of failed referrals. The court also found the Division had explored alternative placements for the children, "but the longest relative placement failed because, among other things, the home never got licensed and they failed to comply with DYFS rules."
With regard to the fourth prong of N.J.S.A. 30:4C-15.1(a), the court found that the termination of N.S.'s parental rights would not do more harm than good because "permanency is not part of [N.S.'s] life." Consequently, the court determined that N.S. could not "bring permanency and stability to the lives of her children."
As our Supreme Court has noted, the "[r]review of a trial court's termination of parental rights is limited." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007).
"Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Trial courts hear the case and see the witnesses, and they are in a better position to evaluate the credibility and weight to be afforded testimonial evidence. Pascale v. Pascale, 113 N.J. 20, 33 (1988). Deference is not appropriate, however, if the trial court's findings are "so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605.
In this case, we have determined from our independent review of the record that the trial court's findings and conclusions are adequately supported by clear and convincing evidence. As the trial court indicated, the children are entitled to a safe, stable, and permanent home, which N.S. cannot provide. In addition, the court correctly concluded that the evidence was sufficient to satisfy each of the four statutory factors under N.J.S.A. 30:4C-15.1(a). We therefore affirm substantially for the reasons stated by Judge Audrey Peyton Blackburn in her oral decision on October 22, 2010.