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New Jersey Division of Youth and Family Services v. W.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 6, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
W.M., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF: D.F.M., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-124-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2012 -

Before Judges Payne, Simonelli and Hayden.

Defendant W.M., a twenty-two-year-old mother, appeals the termination of her parental rights to her second child D.F.M., who was removed from her custody by the New Jersey Division of Youth and Family Services (DYFS) at birth in 2009. On appeal, W.M. claims that, at trial, DYFS failed to prove, by clear and convincing evidence, the first and third prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a, namely:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; [and]

(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[.]

W.M. makes no argument with respect to the other two prongs of the best interests test, which are:

(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; [and]

(4) Termination of parental rights will not do more harm than good.

We affirm.

I.

The record in this matter discloses that W.M. is the mother of two children, the older of whom, born in 2008, was earlier placed voluntarily in the custody of DYFS*fn1 and has been adopted by the foster mother who is caring for D.F.M. The foster mother wishes to adopt D.F.M., as well. At the trial of this matter, the court found that A.H., the father of D.F.M., had effectively surrendered his rights to the child by indicating his willingness to do so, refusing to participate in court-ordered services and evaluations, and failing to appear at trial. No family members have been identified as suitable placements for D.F.M.

The mother, W.M., has a long history of significant psychiatric problems, including bipolar disorder and depression, which history constituted the basis, along with a lack of stable housing, for DYFS's assumption of custody of the two children. As a child herself, W.M. was taken away from her cocaine-addicted and schizophrenic mother and raised in the foster care system, undergoing multiple hospitalizations and moving from numerous foster homes, group homes and institutional placements as the result of episodes of self-injury and suicide attempts and her violent behavior, which included at least one homicide attempt.*fn2 W.M. was raped in front of her sister by her mother's boyfriend at the age of twelve or fourteen. She was arrested for drug possession and distribution and for a store robbery, for which she was on probation until the age of twenty-one.

After obtaining custody of her two daughters, DYFS arranged for parenting and life skills classes, anger management instruction, psychological and psychiatric therapy, and medication monitoring services for W.M. It provided her with monthly bus passes and individual tickets for transportation, and arranged for weekly visitation with D.F.M. However, W.M. exhibited a history of non-compliance with the psychiatric and other therapeutic services DYFS provided, with the medications she was prescribed, and with other services. W.M. showed more effort in the months leading up to trial, including attending visitation with D.F.M. regularly for one month, bringing appropriate items with her for the visit and engaging the child in play. She was also attending GED classes, complying with her medication, and attending therapy for mentally ill homeless individuals. However, at the time of trial, she had not found a job or housing and had no support system other than her boyfriend and his mother. Assuming compliance with treatment and medications, it was estimated that it would take W.M. at least two to three years to develop the ability to adequately parent, if in fact she were ever able to do so.

Following evaluation, DYFS's mental health experts found that W.M. had mild cognitive impairment and clinical and deep-seated pathologies that made her too unstable to parent. In its opinion at the conclusion of trial, the court accurately summarized the psychological and psychiatric evidence as follows:

Dr. Sigafoos [DYFS's psychologist] examined [W.M.] in November of 2009, found she had cognitive, clinical, and character pathologies which all contribute to [her] dysfunctional psychological condition. She does not have according to Dr. Sigafoos the capacity to learn and to retain information.

Dr. Gayle [DYFS's psychiatrist] in June of 2010 did a psychiatric evaluation and concluded that [W.M.] needed intensive individual psychotherapy to deal with the trauma of her past. She found her to be too unstable to parent [D.F.M.]

Dr. Gruen [DYFS's psychologist] examined [W.M.] in November of 2010, November 29, 2010. He administered various tests, the Millon Test, the Rotter Completion Test, the Projective Drawings Test. He concluded that [W.M.] was in denial about a lot of things. She had Paranoid Personality Disorder. She distrusted the world. He found her to be passive aggressive, that she was stubborn, that she ignored the facts. She had a reduced capacity for close relationships and she had a skewed view of the world and would not rely upon others for help even though help was being offered by the division ever since she was a child of 14 years. He found her to be depressed, forlorn. Her hopes of getting [D.F.M.], according to her would help her health. Dr. Gruen found this to be an indication that her interest was focused on her own well being not on that of the child.

Dr. Gruen did a bonding evaluation and testified that [D.F.M.] did not recognize the defendant, at least not as her parent, that the child was limp and detached. She allowed herself to be held, but there was no affection shown toward [W.M.]

Dr. Gruen concluded that [W.M.] does not have the skills to care for a child, especially a child with special needs, and I know at this point that [W.M.] was not even aware of the special needs of [D.F.M.] He concluded that [W.M.] was barely able to care for herself.

The record reflects Dr. Gruen's conclusion, following his evaluation that:

Results of the clinical interview indicate that [W.M.] is not doing anything substantive to help herself. She remains emotionally disturbed, childlike, and a victim of a torturous childhood. In my opinion, she knows that she cannot parent [D.F.M.] but is fantasizing that custody of the child will motivate [her] to get her life together. Of course, the biological mother has no viable resources with which to care for the child; that is, she has no home; she has no job; and she has limited understanding of what it means to be a mother.

Additionally, psychologist Larry Seidman, who evaluated W.M. in March 2010, diagnosed her as having a mild range of mental retardation, bipolar disorder NOS with psychotic features, generalized anxiety disorder, and post-traumatic stress disorder (by history) He concluded that W.M. does not possess the intellectual capacity, personal or social adjustment, or reality testing to establish or maintain appropriate care for her two children. Her prognosis under the best treatment plans is highly guarded.

Dr. Seidman based these conclusions on his clinical interview, IQ tests, a personality assessment, tests for anxiety and depression, and a reality-testing evaluation. He found as a result that W.M. exhibited serious weaknesses in her self-esteem, impulse control, perception of her feelings and of reality, ability to be resourceful, ability to manage her mood and emotions, ability to think clearly and to concentrate, and ability to connect with, trust and rely on others for help. The doctor found that W.M. had a low energy level, was often fatigued, and slept poorly because she constantly engaged in "unproductive rumination." W.M., he concluded, was hypersensitive to perceived slights from others, was egocentric, socially incompetent, manipulative, lacking in empathy, and unable to establish secure attachments to others. Her relationships often had psychologically sadomasochistic features, and she was often hostile, suspicious, guarded, and withdrawn with people because of her lack of trust. Her perception of reality was distorted, leading to confusion between reality and fantasy. The doctor found additionally that W.M. constantly felt powerless, helpless, depressed, fearful, and anxious in her life. As a result, she was likely to act impulsively and recklessly, to disregard convention and to challenge authority.

Even W.M. conceded at the time of her evaluation by Dr. Gruen that she was not stable enough to parent, and that she could barely provide for herself.

In the meantime, D.F.M., who had been diagnosed with developmental delays and was receiving early intervention services, had bonded to her foster mother. In contrast, as we have previously noted, bonding evaluations disclosed that D.F.M. did not view W.M. as a nurturing figure. Thus, D.F.M. would not be harmed by severance of parental rights.

At the conclusion of the trial, the court found that DYFS had demonstrated, by clear and convincing evidence, each of the four prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1a. As a result, the court entered an order terminating W.M.'s parental rights to D.F.M. This appeal followed.

II.

On appeal, W.M. first argues that the removal of D.F.M. from the hospital, based on W.M.'s voluntary surrender of custody of her older child, was improper and did not meet the requirements of the first prong of the best interests test. In that regard, W.M. argued that her voluntary surrender was not the equivalent of a stipulation to charges of abuse and neglect, and thus could not be used as evidence of such conduct. W.M. maintained:

D.F.M. was taken from the hospital by DYFS, and never had the chance to live with her mother. There are no allegations that D.F.M. ever suffered harm or risk of harm from her relationship with W.M. There is no prior finding that W.M. abused or neglected any other child.

W.M.'s argument misstates the record which, as we have indicated, demonstrates that custody of her older child was assumed by DYFS after W.M. had abandoned the child for three and one-half months by leaving the child with a godmother or neighbor and traveling to Ohio. Further, an examination of the initial custody order pertaining to D.F.M., entered on July 28, 2009, reveals that it makes no reference to the older child, but states instead "the removal of the child(ren) was required due to imminent danger to the child(ren)'s life, safety or health, as follows, W.M. has psychological problems; no stable housing."

Moreover, W.M.'s premise is faulty that actual harm must be demonstrated in order for the first prong of the best interests standard to be met. "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of DMH, 161 N.J. 365, 383 (1999) (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 n.14 (1986)). Evidence that the parent lacks a permanent, safe and stable home may be sufficient to demonstrate that a child is endangered by the parental relationship. Ibid. (citing N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 591-93 (App. Div. 1996)). Such evidence exists here.

Additionally, uncontroverted evidence in this case demonstrates that W.M. suffers from severe psychological and psychiatric impairments that have rendered her incapable, to date, of parenting her children. Such evidence has been held to be sufficient to demonstrate the potential for harm that the first prong of the best interests standard addresses. See, e.g., In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (holding that the mental illnesses suffered by the parents created an environment in which they were unable to adequately care for and raise their children, thus causing them harm, despite the absence of physical abuse or neglect); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001) (holding that the fact that parents may be morally blameless is not sufficient when psychological incapacity makes it impossible for them to adequately care for a child), certif. denied, 171 N.J. 44 (2002); cf. In re Guardianship of A.A.M., 268 N.J. Super. 533, 549-50 (App. Div. 1993) (concurring opinion of Kestin, J.A.D.) (in a case in which satisfaction of the first prong was not contested, finding that, despite the fact that her child was removed at four days of age and, as a result, the mother "never had a real opportunity to exercise a parental role," given the mother's unstable, violent, self-centered, and undisciplined personality and lack of insight, she could nonetheless be found unable to provide a safe and stable home for her child).

As a consequence, we reject W.M.'s position with respect to the first prong of the best interests test.

III.

W.M. argues as well that DYFS failed to make reasonable efforts to avoid termination of parental rights. Although W.M. admits that DYFS provided her with "plentiful" services, she claims that those services had no "realistic potential" to succeed. In particular, W.M. faults DYFS for failing to provide her with housing, taxi transport instead of bus passes, and medications specific for treatment of her bipolar disorder.

However, the record reflects that, when housing was offered to W.M., she was soon expelled as the result of noncompliant conduct. Nonetheless, DYFS assisted W.M. in qualifying for SSI benefits and in obtaining food stamps and other welfare services. Although the means of transportation offered to W.M. may not have been to her liking, there is no evidence in the record to suggest that bus service was inadequate as a means to convey her to her appointments or that taxi transportation from the various locations at which W.M. resided would have been anything but cost-prohibitive. As to lack of medication, the April 21, 2008 report of Deborah Mulgrew, D.O., upon which W.M. relies, discloses that, upon learning that W.M. was not being appropriately medicated, Dr. Mulgrew prescribed the necessary drugs. Any failure to take the medication in the two years thereafter and prior to trial can be attributed to noncompliance on W.M.'s part.

Our review of the record in this case satisfies us that DYFS more than adequately fulfilled its obligation to assist W.M. by offering her services aimed at correcting the conditions that led to D.F.M.'s placement outside the home. We have held that:

"Reasonable efforts" will vary depending upon the circumstances of the removal. The failure or lack of success of such efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family. [N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citations omitted), certif. denied, 192 N.J. 68 (2007).]

In this case, the services offered to W.M. were appropriately focused on ameliorating her psychological and psychiatric disabilities and improving her ability to parent. Unfortunately, W.M.'s background and the multiple impairments that she suffered as a result precluded a satisfactory outcome. Nonetheless, we find no default on DYFS's part.

In conclusion, we are satisfied from a review of the record as a whole, and in particular, the multiple expert reports and testimony contained therein, that the termination of W.M.'s parental rights to D.F.M. will not do more harm than good. Evidence discloses the development of a secure bond between the child and her foster mother that is absent from the child's relationship with her natural parent. By all accounts, D.F.M. is doing well. She should be permitted to continue to do so in her present home.

Affirmed.


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