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New Jersey Division of Youth v. A.K

May 18, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
A.K., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF L.O., A MINOR.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FG-05-18-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2012

Before Judges Cuff, Lihotz, and Waugh.

Defendant A.K., to whom we refer by the pseudonym Alice, appeals from the Family Part's March 31, 2011 order terminating her parental rights to her daughter Laura.*fn1 We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

A.

Laura was born on June 17, 2005. At that time, Alice was living with Laura's father, to whom we refer by the pseudonym Carl. Alice and Carl were living on the second floor of the house owned by Carl's mother and stepfather, who resided on the first floor.

On June 21, 2005, plaintiff Division of Youth and Family Services (Division) received a report that the father of Alice's son Paul*fn2 was seeking to stop parenting time between Paul and Alice on an emergent basis. According to the report, Paul witnessed a violent argument between Alice and Carl while visiting their residence. Alice threw a mirror at Carl and hit him with a golf club during the argument. A Division representative substantiated abuse and neglect, but that determination was overturned at a subsequent review hearing. Nevertheless, the Division opened a case so that services could be provided to the family. The case was closed after a year.

On October 10, 2007, the Division received a report from Carl's mother that the police had been called to the house the previous night because of a domestic dispute between Alice and Carl. She informed the Division that the police told her that Alice's apartment was "unsafe, unhealthy and not fit for a dog."

When a Division worker went to the house, she found police on the scene. The worker learned that Alice had received a temporary restraining order against Carl earlier that morning,*fn3

as a result of which she had temporary custody of Laura. The parties were gathered outside on the sidewalk, where Carl was refusing to let Alice leave with Laura.

After speaking with Alice and Carl, the worker went to their apartment, which she found to be in deplorable condition. She described it as dirty and cluttered to the point that it was impossible to move around without climbing over boxes. The worker took photographs of the apartment, which were introduced at the subsequent trial.

After the worker consulted her supervisor, the Division effectuated an emergency removal. Laura was placed with Carl's mother and stepfather, with whom she still resides and who are interested in adopting her. As a condition of the placement, Carl and Alice were barred from living in the same house. On October 12, 2007, the Division filed a verified complaint seeking continuing custody of Laura, which was granted.

The Division's investigation revealed a lengthy history of domestic violence and legal problems involving Alice and Carl. Temporary restraining orders had been obtained and then dismissed by both Alice and Carl in August and September 2007. Hospital records from October 10, indicated that Alice was treated for a contusion on her left side, which she attributed to Carl punching her.

Although Alice obtained a final restraining order against Carl on October 24, the police found them together in a vehicle at a motel parking lot in November. Alice was arrested on December 4 for trespassing outside of Carl's mother and stepfather's home.

On February 21, 2008, Alice stipulated to the abuse and neglect of Laura.*fn4 That stipulation, which took the form of a suspended judgment, was apparently never formally entered. At a January 28, 2009 hearing, the Division sought termination of the abuse and neglect litigation so that a guardianship complaint could be filed. The judge granted that request. The hearing resulted in a case management order establishing a supervised visitation schedule and directing Alice to submit to bonding evaluations, psychological evaluations, and intensive individual psychotherapy.

Status conferences were held on March 5, May 14, July 9, and September 10. A permanency hearing was held on October 28, which resulted in orders that Alice attend additional evaluations and individual psychotherapy. In a permanency order issued on that date, the judge approved the Division's plan for termination of parental rights followed by relative adoption.

On May 20, 2010, Carl executed an identified surrender of his parental rights to Laura in favor of his mother and stepfather. The trial with respect to Alice's parental rights took place over ten days between August 6 and December 17, 2010.

B.

The facts that follow were developed during the trial through testimony and the introduction of documents.

The Division initially offered Alice services aimed at facilitating reunification. During the course of both litigations, Alice was referred for parenting classes, parenting capacity assessments, substance abuse evaluation and treatment, urine screens, psychological evaluations, bonding evaluations, individual counseling, therapeutic parenting classes, and domestic violence assessment and treatment. She was also provided with a monthly bus pass.

Alice was compliant with many of those services, particularly at the beginning. She completed domestic violence counseling, substance abuse education classes, parenting classes, some individual counseling, and several psychological and bonding evaluations. All urine screens were negative. However, Alice stopped participating in random urine testing in July 2010, and discontinued individual counseling with her therapist.

Alice was initially permitted one hour of parenting time with Laura each week, supervised by the Division. At Alice's request, parenting time was changed to two hours every other week. Carl's mother offered to supervise additional parenting time in her home, but Alice refused. The Division insisted that all parenting time be supervised because of concerns that Alice would leave the state with Laura, which concern was based on a report received by the Division in September 2002 that Alice had taken Paul out of state without permission. It was also based on Carl's assertion that Alice had often taken Laura and disappeared for days at a time without saying where they were.

Alice's participation in parenting time was erratic. She was late for some visits and failed to appear for others. The Division attempted to put other service providers in place to increase her parenting time without success. Alice's friend was approved to supervise visits, and some visits did occur in her friend's home. They were discontinued in 2008, however, because of Alice's noncompliance with the Division's monthly parenting-time requirement.

Throughout most of the litigation, case workers could not ascertain Alice's place of residence. She sometimes failed to appear for appointments and could not be reached on the telephone. Alice's driver's license was suspended in December 2008. She was occasionally incarcerated for failure to pay Paul's child support. According to the trial testimony, Alice last visited Laura on July 23, 2010, and has not seen or spoken to her since then.

During the course of the litigation, Alice did not hold steady employment. Although she worked for short periods of time for at least eight or nine different employers, she was unemployed most of the time. Alice told the Division that she was a student at Cumberland Community College. However, she refused to sign a release so that the Division could obtain her school records.

In December 2008, the Division received a report from a women's center that Alice was pregnant. At a hearing on January 28, 2009, Alice's attorney told the judge that she was not pregnant. Nevertheless, following the hearing, the Division workers observed that Alice wore a long black trench coat during parenting time. They eventually ascertained that she was visibly pregnant. She did not appear at the March 5 status conference.

On April 18, 2009, Alice gave birth to a baby girl, Emma. No drugs or alcohol were found in the baby's blood at birth. The Division nevertheless removed Emma from Alice's care because of its concern over her ability to parent. Because Emma's father, to whom we refer by the pseudonym Chuck, was incarcerated for use and distribution of heroin, the Division placed her with her paternal grandmother. Emma died on July 19. The autopsy report attributed the cause of death to "sudden death of co-sleeping infant."

When Chuck was released from prison, he and Alice began living together. After inspecting their apartment, Division worker Margaret Laurito concluded it would not be suitable for Laura because there was only one bedroom and there were no screens on the windows. Furthermore, she was concerned about Laura's association with Chuck, who had serious drug problems.

Laurito explained that the Division was troubled by Alice's pattern of forming relationships with individuals who had substance abuse, mental health issues, or both. Paul's father was a drug abuser who had served time in prison for his involvement with illegal substances. Carl was diagnosed with bipolar disorder and had a severe addiction to heroin, cocaine, and prescription pain killers. Chuck pled guilty to distribution of heroin and served two years in prison before being paroled. He was also diagnosed with bipolar disorder.

Laurito testified that Laura was happy and well-adjusted in her grandparents' home. She had no developmental problems. She had made many friends in kindergarten. When the litigation first began, Laura was very happy to see her mother during parenting time and became upset when it was time to leave. By the time of the trial, however, Laurito reported that Laura would "freak[] out" when she had to go to parenting time, crying and clinging to her grandmother and the transportation aid.

Three psychologists, who were accepted as experts by the trial judge, testified at trial. While the psychologists differed on certain points, their diagnoses and opinions were generally consistent.

Dr. Janet Cahill conducted a parenting capacity evaluation of Alice at the Division's request in April 2008. Cahill testified that Alice was extremely defensive during her clinical interview, refusing to answer many questions and providing a minimum of information. Furthermore, some of the information that Alice provided was later found to be inconsistent with facts in the record. Overall, Cahill had the impression that Alice was attempting to manipulate the information and to provide as little as possible.

Alice told Cahill that all of the problems in her home were caused by Carl and that her only fault was in not leaving the situation sooner. She said her apartment was somewhat messy, but denied that it was unfit for a child. She conceded that she often lost jobs because of her behavior and that she had never been able to maintain stable housing. Alice attributed losing custody of Paul to her lack of stable housing. Although Paul lived in New Jersey with his grandfather, Alice had not seen him since October 2007, and she told Cahill that she had no plans to visit him.

Alice denied being depressed or anxious. Cahill, however, testified that she appeared to be depressed, irritable, and jumpy during her evaluation. She described Alice as having "an unusual and odd affect" that was disproportionate to the setting.

Cahill administered the Personality Assessment Inventory, and found that Alice "was incredibly defensive," observing that "she blew the validity scales for defensiveness." Even though Alice's responses to the validity scales "invalidated the instrument," Cahill was able to compare her responses to those of other defensive responders. In so doing, she found that Alice had elevations in the areas of hostilities, suspiciousness, and mistrust. Consequently, as compared to other people who were being defensive, Cahill concluded that Alice viewed the world as a more hostile place, tended to isolate herself socially, and mistrusted the intentions of others. Based on the evaluation as a whole, Cahill concluded that Alice had a mood or personality disorder but she was not displaying specific symptoms of a specific disorder.

Cahill testified that, when she asked Alice about an interaction with Laura that Cahill had herself witnessed, Alice flatly denied that it had ever happened. Nevertheless, Cahill concluded that Alice genuinely believed what she was saying, and was not deliberately misrepresenting the truth. Cahill concluded that Alice has a fundamental personality disorder that might lie somewhere in the paranoid or schizotypal spectrum.

Such a disorder would, according to Cahill, explain why Alice has so much trouble functioning with respect to basic life tasks.

Because Alice was not sufficiently forthcoming with information, Cahill was unable to make an accurate diagnosis. She nevertheless concluded that Alice has a serious mood or thought disorder, probably a borderline personality disorder. Cahill wanted to "rule out" bipolar disorder, major depressive disorder, and substance abuse; that is, there was evidence that Alice suffered from those disorders, but Cahill ...


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