May 10, 2012
NEW JERSEY DIVISON OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
L.A.G. A/K/A L.S.,
W.L.S., DEFENDANT. IN THE MATTER OF THE GUARDIANSHIP OF B.G.-S. AND J.G.-S., MINORS.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FG-15-64-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011 -
Before Judges Carchman, Baxter and Nugent.
Defendant L.S. appeals from the March 25, 2010 Family Part order that terminated her parental rights to two of her children, B.G.-S. and J.G.-S. The children's father, W.S., executed an identified surrender of his parental rights to both children on September 8, 2008.*fn1 L.S. argues that the Division of Youth & Family Services (DYFS) failed to establish by clear and convincing evidence the four criteria for terminating parental rights set forth in N.J.S.A. 30:4C-15.1(a). We agree with the trial judge that DYFS clearly and convincingly established all of the statutory prongs. Accordingly, we affirm.
DYFS first became involved with L.S. in 1991 when it received referrals about the deplorable living conditions in which L.S. resided with her first two children, twin daughters.
The referrals continued after the birth of L.S.'s third child, a son, J.G. L.S.'s father was eventually awarded custody of those children, and he placed the twins with a maternal aunt. He subsequently returned J.G. to L.S. DYFS closed its file on the twins and J.G. in 1998.
In 2000, L.S. married W.S., who suffered from bi-polar disorder. During the next five years, L.S. and W.S. had two children, a son, B.G.-S., and a daughter, J.G.-S. DYFS became involved with L.S. and her family in 2005, approximately one month after J.G.-S. was born.
In April 2005, DYFS received a referral alleging that W.S. was abusing L.S. and that the family was living in squalor. The responding caseworker found the family's apartment messy but not unsanitary. The caseworker could not confirm that W.S. had abused L.S. Two months later, however, on June 25, 2005, police arrested W.S. for assault after he admitted throwing L.S. to the ground, strangling her, and threatening to kill her. The police notified DYFS, and L.S. told a caseworker that W.S. had also thrown a vacuum cleaner that nearly struck B.G.-S. In light of the danger W.S. posed to the children, the caseworker had L.S. sign a case plan and agree that she would neither permit W.S. to live with her nor leave W.S. alone with the children.
Throughout the remainder of the year, during their regular visits, DYFS caseworkers observed that L.S. would leave B.G.-S. and J.G.-S. in front of the television for hours, B.G.-S. strapped in his stroller, and J.G.-S. unattended in a bassinet. They also learned that J.G.-S. had not received timely inoculations.
DYFS referred L.S. for services that would provide her with the organizational skills necessary to keep her home and the children clean, and offered to assist L.S. in securing daycare services for the children so that she could care for her home and seek part-time employment. L.S. declined to place her children in daycare. DYFS also referred L.S. to a program that provided parenting skills training, household management training, and domestic violence counseling, but L.S. had little success with the program. Her counselor reported that she was more interested in having W.S. return to the home and made only minimal progress in improving her housekeeping and parenting skills.
L.S. underwent both psychological and psychiatric evaluations in 2005. The psychologist believed that L.S. was capable of providing for her children, but needed considerable support services to maintain a stable environment for her family. He recommended that she undergo psychiatric evaluation, domestic violence counseling, parenting skills training, and marriage counseling. The psychiatrist believed L.S. suffered from moderate psychiatric problems including post-traumatic stress disorder, depression, anxiety, and panic attacks; and that she displayed poor judgment by failing to protect her children from W.S.'s violent behavior.
Throughout 2006, L.S.'s pattern of behavior, non-responsiveness to DYFS services, and neglect of her home and children continued. During periodic visits, caseworkers noted that L.S.'s apartment remained in a dirty and cluttered condition. A family therapist reported that B.G.-S. frequently acted out and bit the back of his hands when he was frustrated, angry, or anxious. L.S. continued to keep J.G.-S. in her playpen for hours at a time, and refused to give her older son, J.G., medication for his attention deficit disorder. In February 2006, B.G.-S. required stitches in his scrotum after falling on a nail while he was under L.S.'s supervision outside of the home. Family Preservation Services reported that on one occasion, L.S. failed to contact a doctor after finding blood in J.G.-S.'s stool, and that L.S. had also been hitting her older son and B.G.-S.
In May 2006, L.S. was evicted from her apartment, and she and the children became homeless. A DYFS caseworker found the family, dirty and hungry, in a shopping center parking lot and took them to a shelter. DYFS provided L.S. and her children with airplane tickets to Florida so that they could live with L.S.'s mother. After the family went to Florida, W.S. joined them. DYFS closed its file on May 17, 2006.
In November 2006, DYFS received a referral that L.S. was back in New Jersey with her children living in a motel room in Forked River. L.S. later told a psychologist that she did not want to return to New Jersey with the children, but she was facing homelessness in Florida, and she could not receive the "help" in Florida that she could receive in New Jersey. During the ensuing months, DYFS caseworker visits to the motel room disclosed that L.S. was incapable of keeping either it or the children clean. The motel room was dirty and cluttered, and the children were neglected. On one occasion, when responding to a referral, a caseworker, accompanied by police, found the three children home alone; B.G.-S was strapped into a car seat in front of the television, and J.G.-S. was in her playpen. On another occasion, the caseworker observed J.G.-S. naked and confined to her playpen, and B.G.-S. with dried blood on his nose.
Meanwhile, contrary to the parenting plan that L.S. and W.S. had agreed upon, W.S. continued to live in the room with L.S. and her children. Although he denied living there, DYFS received referrals about his presence, and on February 6, 2007, during a surprise visit, a caseworker found W.S. hiding under the bed. When discovered, W.S. threatened the caseworker. The caseworker also learned that the family faced imminent eviction for non-payment of rent.
On February 8, 2007, DYFS removed the children and filed a verified complaint and order to show cause seeking care and custody of the children. At a hearing that same day, with the consent of W.S. and L.S., the court ordered that the children be placed under the care, custody and supervision of DYFS.*fn2
Following a fact-finding hearing on May 7, 2007, the court determined that L.S. had abused or neglected her children. Between then and March 3, 2008, the court conducted numerous compliance review hearings. On March 3, 2008, at the conclusion of a permanency hearing, the court approved DYFS's plan for termination of the parental rights of L.S. and W.S. followed by adoption. Two months later, on May 5, 2008, DYFS filed a guardianship complaint seeking, among other things, an order terminating the parental rights of L.S. and W.S.
Even after the children were removed from her custody, L.S. continued to demonstrate her inability to maintain a secure place to live. On May 1, 2007, she and W.S. were evicted from their motel room and moved into a friend's two-bedroom apartment. In February 2008, W.S. and L.S. separated. DYFS attempted to assist L.S. in obtaining housing, but L.S. failed to keep two appointments with the housing authority. In August 2008, L.S. moved to Florida to live with a man she met on the internet. W.S. surrendered his parental rights to B.G.-S. and J.G.-S. in September 2008.
From the time DYFS learned of L.S.'s return to New Jersey in November 2006, until L.S. left New Jersey and returned to Florida in August 2008, L.S.'s inability to provide a clean, safe, and stable environment for her children did not improve, despite DYFS making available an array of services for her.
Meanwhile, upon their removal from L.S., the children were placed with a foster family with whom they stayed for a short time before being placed in the custody of L.S.'s sister on February 13, 2007. Shortly thereafter, DYFS arranged for B.G.-S. and J.G.-S. to undergo medical assessments. The evaluating doctors reported that B.G.-S. exhibited delays "across all domains of his development," extreme behavioral problems, speech impairment, poor comprehension, poor memory retention and resistance to toilet training. He also "toe" walked and appeared to have a "lazy eye." J.G.-S. also suffered from developmental delays. DYFS arranged for in-home therapy for B.G.-S., and intervention therapy for speech and language for J.G.-S.
The children remained in the custody of L.S.'s sister until August 23, 2007, when she would no longer care for them. They were placed with their current foster family. J.G.-S. has since remained in the care of her foster parents. B.G.-S. became difficult to handle and was psychiatrically evaluated on October 1, 2007. The psychiatrist believed that B.G.-S. had been neglected and possibly abused. According to the psychiatrist, B.G.-S. suffered from a disruptive behavioral disorder, a communication disorder, a developmental coordination disorder, a learning disorder, a reactive attachment disorder of early childhood, and an impulse control disorder. The psychiatrist recommended that B.G.-S. be classified as multiply disabled and placed in therapeutic foster care. On October 18, 2007, DYFS removed B.G.-S. from the care of his foster parents and placed him in a therapeutic foster home as recommended by the psychiatrist.
The foster parents stayed in contact with B.G.-S. and renewed visits with him at their home in September 2008. The foster father transported B.G.-S. 164 miles round-trip to accommodate visitation. By September 2009, the visitations took place every weekend. DYFS returned B.G.-S. to his foster parents on November 6, 2009. The foster parents intend to adopt B.G.-S. and J.G.-S.
In March 2008, L.S. became involved with a man with a history of domestic violence whom she had met on the internet. In May she began traveling to Florida to see him. She missed several scheduled visits with B.G.-S. and J.G.-S. in July.
L.S. had little communication with her children after moving to Florida the second time in August 2008. Between September 2008 and October 2009, she visited the children on only five occasions.
In November 2008, Florida police arrested L.S.'s companion for attempting to strangle her. In June 2009, L.S. reported that her landlord was threatening to evict her from the room she shared with J.G. By January 2010, L.S. was living in a trailer and facing eviction for non-payment of rent. She was also having increasing difficulty with J.G. and told a DYFS caseworker that she intended to put J.G. in a "home" if he did not straighten out.
According to trial testimony, both B.G.-S. and J.G.-S. have responded positively in the environment provided by their foster parents. Daniel G. Zebrowski, M.A., CSC, an expert in the fields of psychological counseling and therapeutic visitation, opined that B.G.-S. had been deprived of appropriate stimulus during critical stages of his early childhood, which had resulted in functional delays that were "approaching autistic." B.G.-S.'s social skills have dramatically improved since his placement with his current foster parents, to whom he has responded very favorably.
DYFS's psychological expert, Dr. Alan J. Lee, evaluated L.S. twice, once in September 2008 and once in April 2009. Dr. Lee found that L.S. lacked personal insight or awareness, exhibited a number of "deeply engrained and highly maladaptive personality and character traits that have adversely impacted her overall functioning," and had "significant difficulties in effectively and appropriately coping and responding to adult life demands." He noted "significant concerns against [L.S.] being an independent caregiver to any minor child, but especially multiple children and multiple children who may have special needs." Dr. Lee opined that due to the chronicity of L.S.'s problems, "the prognosis is poor for significant and lasting changes." Dr. Lee also emphasized that "the most central and principal recommendation is for other permanency planning for the minor children besides reunification with [their] birth mother."
Dr. Lee also testified about the bonding evaluations he had conducted between the children and L.S., and between the children and their foster parents. He opined that J.G.-S had developed a significant and positive psychological attachment and bond to both foster parents, and that there appeared to be a significant likelihood of severe, enduring, and irreparable harm if J.G.-S.'s relationship with them ended. On the other hand, Dr. Lee opined that J.G.-S. had formed no significant psychological attachment or bond with L.S. Consequently, "there appears a relatively low risk of [J.G.-S.] suffering severe, enduring, or irreparable psychological harm if her relationship with [L.S.] was permanently ended. Collateral information has raised concerns against the birth mother being an independent caregiver to the minor child."
As to B.G.-S., Dr. Lee noted the child's recognition of L.S. as his birth mother, but also noted that B.G.-S. was "exposed to [a] high degree of chaos and instability in that home." Dr. Lee opined that B.G.-S.'s attachment and relationship towards his birth mother "appears rather insecure, ambivalent and disorganized." In sum, Dr. Lee believed that B.G.-S.'s relationship with L.S. did "not represent a significant or positive psychological attachment or psychological bond. Related to this, there is a relatively low risk of the child . . . suffering severe, enduring, or irreparable psychological harm if his relationship with the birth mother was permanently ended."
In contrast, Dr. Lee testified that B.G.-S. "certainly seems to derive a sense of consistency, nurturance, support, and direction from his foster parents." Dr. Lee stated that B.G.-S. has a "favorable and positive attachment and relationship with the current caretakers," but cautioned that, given the limited time B.G.-S. had been in his foster parents' care, "it would remain equivocal whether he has developed and solidified a significant and positive psychological bond with [them]." Thus, Dr. Lee was uncertain whether B.G.-S. "would suffer severe, enduring, or irreparable psychological harm if his relationship with [his foster parents] was permanently ended." Nonetheless, Dr. Lee concluded that "B.G.-S. does seem to view [his foster parents] in a favorable and positive light, and they have expressed their desire in permanently caring for [B.G.-S.] and adopting him if he is legally free. This would appear generally supported from the available information about the current circumstances."
DYFS's expert psychiatrist, Dr. Alexander Iofin, evaluated L.S. in 2006, 2008 and 2009. He concluded that she presented with "significant underlying psychiatric and psychological pathology on overlap of psychiatry and abnormal psychology, which will make her unstable to take proper care on the long term of [her] two young children."
Dr. Jesse Whitehead, Jr., an expert psychologist, testified on behalf of L.S. Dr. Whitehead was critical of Dr. Lee's opinions. Although Dr. Whitehead did not perform bonding evaluations of the children and their foster parents, he concluded that both children had demonstrated a bond with L.S., and that "bonding or attachment is developmentally progressing acceptably between [the children] and their mother." He concluded that while the children might experience some sense of loss if removed from their foster parents' care, there was no indication that the children "would be significantly harmed by being removed from their current caregiver and placed in their mother's care, in fact in my discussions with [B.G.-S.], being in [his] mother's care is what he would desire most . . . ." He further opined that the level of bonding he observed between B.G.-S. and his mother supported his opinion.
Based upon the documentary evidence, lay and expert opinion testimony, and his interview with B.G.-S. and J.G.-S., Judge Michael Guadagno concluded that DYFS had clearly and convincingly proved that L.S.'s parental rights to B.G.-S. and J.G.-S. should be terminated. Accordingly, on March 25, 2010, the court entered an order terminating L.S.'s parental rights.
L.S. raises the following issues on appeal: POINT I. THE TRIAL COURT MISAPPLIED THE APPROPRIATE LEGAL STANDARDS AND AS A RESULT ERRED IN TERMINATING L.S.'S PARENTAL RIGHTS WHERE THERE WAS NOT CLEAR AND CONVINCING PROOF SUFFICIENT TO SATISFY THE FOUR PRONGS OF N.J.S.A. 30:4C-15.1(a).
There Is No Evidence That L.S. Harmed Her Children And Therefore The Trial Court's Determination As To The First Prong Of The Statute Is Not Supported By Substantial Credible Evidence.
There Was Not Clear And Convincing Evidence To Support The Trial Court's Determination That L.S. Was Unwilling Or Unable To Parent Her Children And The Trial Court's Decision Is Not Supported by Substantial, Credible Evidence.
The Division's Efforts to Reunify The Family Were Insufficient And Consequently Failed to Satisfy Its Obligations Under the Third Prong.
The Trial Court's Conclusion That Termination Would Not Do More Harm Than Good Was Not Supported by Adequate, Credible Evidence.
Our standard of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). A reviewing court must defer to the family court's findings of fact and conclusions of law based on those findings. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007); N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009). We also defer substantially to the trial court's assessment of expert evaluations and credibility determinations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determination[s] and the judge's 'feel of the case' based upon [the court's] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007).
We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13. "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). "Only when the . . . 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 G.L., supra, 191 N.J. at 605).
When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), DYFS has the burden of establishing the following standards by clear and convincing proof:
(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.
The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved are extremely fact-sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.
L.S. first argues that DYFS presented insufficient evidence to satisfy the first statutory prong, namely, that she endangered her children's safety, health, or development. In addressing N.J.S.A. 30:4C-15.1(a)(1), Judge Guadagno cited L.S.'s pattern of abuse and neglect of her first two children, and her inability to maintain those children in a clean and safe environment. The judge then recounted the facts that demonstrated L.S.'s longstanding inability to maintain sanitary living conditions for herself, J.G., B.G.-S., and J.G.-S.; her self-destructive relationships with abusive partners; and her relocation to Florida after the children had been removed from her custody, thereby impeding any reunification plan. The judge aptly noted that L.S. had placed her own interests ahead of those of her children, and that by moving to Florida she had effectively reduced her weekly visitations with the children to a mere five visits during the year following her relocation to Florida.
Judge Guadagno also found to be credible the "unrefuted conclusion" of therapist Daniel Zebrowski, that B.G.-S. had been deprived of appropriate stimuli during critical stages of his early childhood, resulting in B.G.-S.'s impaired development; found that L.S. failed to comply with the court's "very specific orders" to obtain counseling and evaluations of J.G.-S. on multiple occasions; and failed to protect either child from W.S. or to provide even "minimally acceptable living conditions" on a continuous basis. Characterizing L.S.'s relationship with her children as "not an example of 'inadequate parenting,' but rather [a] . . . complete failure to provide even minimal parenting to her children," the judge concluded that DYFS had established the first statutory prong by clear and convincing evidence. Judge Guadagno's findings and conclusions are abundantly supported by the evidence.
L.S. next contends that DYFS failed to establish the second statutory prong, arguing that "[t]he Court in weighing this prong primarily focused on the differing opinions . . . the experts presented as to bonding and also noted that 'the defendant chose not to testify at trial[.]'" L.S. maintains that by rejecting the bonding conclusions of her expert, the court failed to address Dr. Whitehead's opinion that L.S. was not a "lost cause" and that reunification was "supported." L.S. also argues that the court's factual conclusions that L.S. persistently failed to maintain stable housing and employment did not adequately take into consideration that she "moved away from her abuser to Florida where she had at least some family supports."
In determining whether DYFS has proved the second statutory prong, a court must "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care. No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).
The factors that Judge Guadagno cited when concluding that DYFS proved the first statutory prong also supported the judge's conclusion that DYFS established the second statutory prong. In addition to reiterating those factors, Judge Guadagno comprehensively analyzed L.S.'s interaction with J.G., as well as the expert testimony. The judge noted that despite the recommendations of several court orders that J.G. be evaluated by an autism specialist, receive medication monitoring by a board certified psychiatrist, and receive individual counseling; and despite the DYFS caseworker's extremely diligent efforts to identify at least five institutions that could provide those services; L.S. had failed to provide J.G. with such services because L.S. felt that J.G. did not need them.
The judge found credible DYFS's expert's opinion questioning L.S.'s ability to function as an independent caretaker, particularly in the case of multiple children with special needs, and concluded that L.S. had entirely failed to provide for her children's special needs. In contrast, since their removal from L.S., B.G.-S. and J.G.-S. had received an array of services and their respective developmental disabilities had significantly improved.
In short, Judge Guadagno's conclusion that there was "no reason to believe that the problems that led to the children's removal, had improved or would improve at any time in the future," was supported by overwhelming credible evidence.
L.S.'s arguments that the judge failed to properly weigh the opinion of her expert, and that she "moved away from her abuser to Florida where she had at least some family supports," are essentially arguments that we should second-guess Judge Guadagno's credibility determinations. That argument ignores our scope of review, which requires us to defer to the court's findings of fact and conclusions of law when they are based upon sufficient credible evidence in the record. See G.L., supra, 191 N.J. at 605.
L.S. next challenges Judge Guadagno's finding that DYFS clearly and convincingly proved the third statutory prong. We find L.S.'s challenge to Judge Guadagno's determination to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As Judge Guadagno noted in his opinion, DYFS evaluated every proposed placement resource, including the children's maternal grandmother and maternal aunt. DYFS provided a broad array of services including psychological, psychiatric, and individual counseling; referrals for housing assistance; interstate evaluations; domestic violence counseling; anger management counseling; parenting classes; and therapeutic and regular visitation. DYFS also provided L.S. with transportation and hotel services in an effort to accommodate L.S.'s visitation with the children. The evidence amply supported Judge Guadagno's conclusions that DYFS had made reasonable efforts to reunite L.S. with her children and that DYFS had considered alternatives to termination of L.S.'s parental rights.
Lastly, we reject L.S.'s argument that DYFS did not clearly and convincingly establish the fourth statutory prong. To determine whether the termination of parental rights will not do more harm than good, "[t]he question to be addressed . . . is whether, after considering and balancing the two relationships, the [children] will suffer a greater harm from the termination of ties with [their] natural parents than from the permanent disruption of [their] relationship with [their] foster parents." K.H.O., supra, 161 N.J. at 355.
L.S. points to the acknowledgement by her children, during their interviews with the court, that she was their "birth mother." She maintains that "the children's recognition of L.S. as the parental figure in the interviews, even in a limited role, calls into question the conclusions of [DYFS's] experts who portray the relationship as being very limited." In essence, L.S. again challenges the fact-finding of Judge Guadagno. Judge Guadagno's findings, however, are supported by adequate, substantial, credible evidence, as are his credibility determinations.
Judge Guadagno carefully reviewed all the trial evidence and issued a thorough and comprehensive written opinion, in which he explained in detail the factual basis for his credibility determinations and legal conclusions. His opinion comprehensively analyzed the statutory requirements of N.J.S.A. 30:4C-15.1(a) and was amply supported by clear and convincing evidence in the record. E.P., supra, 196 N.J. at 104.