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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 15, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.W., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF P.W., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-06-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 15, 2012

Before Judges Fisher, Baxter and Carchman.

Defendant T.W., the mother of P.W., appeals from a final judgment terminating her parental rights to the child and granting guardianship to plaintiff New Jersey Division of Youth and Family Services (DYFS or the Division). On appeal, defendant asserts that DYFS failed to prove, by clear and convincing evidence, that the termination would not do more harm than good. We conclude that there was sufficient evidence to support that determination. We affirm.

These are the relevant facts adduced at trial. T.W. is the biological mother of P.W., a male child born on December 15, 2007. T.W. has been known to the Division since 1999, and P.W. is her fifth child. T.W. does not have custody of her four older children, all of whom were born addicted to cocaine, as was P.W. Three of T.W's children are in the custody of the maternal great-grandmother, V.M., while the fourth is in the custody of the child's father. P.W. is the only subject of this appeal.

P.W.'s biological father, C.S., is currently incarcerated,*fn1 and he made an identified surrender of parental rights to P.W.'s current foster parents on May 18, 2011.

On December 15, 2007, T.W. gave birth to P.W. at her home, and, thereafter, sought treatment at Lourdes Medical Center in Willingboro.*fn2 On December 17, 2007, diagnostic tests performed at the hospital revealed that T.W. and P.W. both tested positive for crack cocaine.

On that day, a nurse consultant from DYFS met with T.W. at the hospital, and T.W. admitted that she had used crack cocaine on a daily basis during her pregnancy. T.W. also reported that she had last used cocaine on December 14, 2007, the day before P.W. was born, and that she had done so along with her mother, who also has a history of drug use, and with whom T.W. resides. T.W. also stated that she occasionally used heroin and marijuana and had never received prenatal care during her pregnancy.

On December 20, 2007, the Division filed a verified complaint seeking custody of P.W. On that day, T.W. voluntarily transferred custody of P.W. to DYFS and agreed to attend an inpatient drug treatment program. P.W. was placed in foster care. At a fact-finding hearing on April 1, 2008, T.W. stipulated to abuse and neglect of P.W., and admitted that her cocaine use during her pregnancy had placed P.W. at risk of harm.

From March 2008 to February 2009, T.W. received inpatient drug treatment at Seabrook House, a drug rehabilitation center. In July 2008, after T.W. completed five months of treatment, Seabrook recommended that P.W. be permitted to join T.W. and remain with her at Seabrook's "MatriArk" Program, where children reside with their parents while the latter receive residential treatment. With the court's approval, P.W. was permitted to join T.W. at Seabrook on July 11, 2008, in furtherance of the goal of reunification.

After completing twelve months of inpatient treatment, T.W. was discharged from Seabrook with instructions to attend an intensive outpatient drug treatment program. Five days later, T.W. notified DYFS that she would not comply with the intensive drug treatment the Division had arranged for her at Services to Overcome Drug Abuse Among Teenagers of New Jersey, Inc. (SODAT), as she felt that SODAT "was not an appropriate treatment facility[.]"

Between March and April 2009, DYFS was still responsible for P.W.'s care but was unable to reach T.W., who retained custody of P.W. following her discharge from Seabrook House. DYFS executed a second emergency removal of P.W., after T.W. contacted DYFS and admitted that she had recently used illegal drugs, including marijuana and cocaine.

After T.W. declined to seek further drug treatment, DYFS filed an amended verified complaint for custody of P.W. On the same day, T.W. tested positive for marijuana and cocaine, and the court found that T.W.'s relapse placed P.W. at imminent risk of harm and impaired T.W.'s ability to provide him safe care. The court restored custody of P.W. to the Division, and P.W. was returned to his foster parents.

In the ensuing months, T.W. missed a compliance review hearing; advised a caseworker that she had relapsed; refused to comply with a urine screening; and missed two scheduled psychological assessments. In August 2009, T.W. completed a fourteen-day inpatient "detox" program at New Hope Foundation. She then agreed to enter Straight and Narrow, a residential drug treatment center.

From September 2009 to March 2010, T.W. received inpatient treatment at Straight and Narrow. After one month of treatment, Straight and Narrow reported that T.W. was doing well and recommended that P.W. reside with her at the treatment center. At a hearing in October 2009, the court returned custody of P.W. to T.W., and continued DYFS's care and supervision of P.W. P.W. joined T.W. at Straight and Narrow and was permitted to remain in her care, on the condition that T.W. comply with treatment.

After T.W. was discharged from Straight and Narrow in March 2010, she obtained housing through Eva's Hope Residence and attended an aftercare program where she submitted to routine drug screens. T.W. had custody of P.W., although DYFS remained responsible for his care. At Eva's Hope, T.W. was unable to maintain her sobriety, as she tested positive for cocaine and admitted to using Percocet narcotics.

In April 2010, DYFS was notified that T.W. left the aftercare program, and DYFS executed a third emergency removal of P.W. At the hearing, T.W. admitted her recent drug use, and custody of P.W. was transferred to the Division. P.W. was returned to his current foster parents.

In July 2010, the court issued a permanency order approving the Division's plan to terminate T.W.'s parental rights, and ordered DYFS to file a guardianship complaint before September 1, 2010. On August 30, 2010, the Division did so, and the prior Title Nine litigation was dismissed.*fn3

Thereafter, T.W. continued her weekly visits with P.W., who remained in the care of his foster parents. The one-hour visits were held at a Burger King, and V.M. sometimes attended, accompanied by three of T.W.'s older children, who had been placed in V.M.'s care and custody. The foster parents reported that P.W. would "act[] out" following his visits with T.W.

Subsequently, T.W. stopped attending the scheduled visits with P.W., was briefly incarcerated, and declined the Division's offers to obtain further treatment for her, stating that she did "not want[] to go away for treatment."

At trial,*fn4 the Division presented the testimony of two witnesses: Dr. Linda R. Jeffrey, who performed a psychological evaluation of T.W. and conducted bonding assessments between T.W. and P.W. and between P.W. and his foster parents; and Dawn Carrington, who was the DYFS caseworker assigned to P.W.'s case since October 2010.

Carrington related the extensive services the Division had offered to T.W., including: one year of residential drug treatment at Seabrook; intensive aftercare at SODAT, which T.W. refused; a two-week detox program at New Hope Foundation; six months of residential treatment at Straight and Narrow; numerous psychological assessments and bonding evaluations; and visits with P.W. when he was not residing with T.W. at her residential programs.

According to Carrington, after the Division's third removal of P.W. in April 2010, T.W. continued to test positive for cocaine and admitted extensive drug use. Carrington stated that T.W. informed her that "she doesn't want to do . . . any [more] in-patient programs," and has not requested any further referrals.

Carrington noted that T.W. was able to visit P.W. in his current foster home approximately once per week, and Carrington observed that P.W. was "very comfortable [there]," where "there is always something going on . . . that he wants to show [her]." She stated: "[P.W. is] very comfortable in his room, . . . he's very proud of [his] foster father," to whom he referred as "dad," and he called his foster mother "mom." Carrington explained that P.W. referred to the younger foster child in the home as his "sister" and that the Division's plan was for the foster family to adopt both children.

Jeffrey observed that T.W.'s failure to avail herself of the "extensive" treatment services DYFS offered her, and her continued drug use for the past decade indicated that "[s]he ha[d] a very serious drug problem." The tests Jeffrey administered indicated that T.W.'s substance abuse problems were "very significant," indicating a "dependence disorder" that placed T.W. in the ninety-ninth percentile of drug users, which Jeffrey noted was "an extremely high score." Jeffrey also stated that, during her evaluation, T.W. reported "that she had actually used substances the day before the psychological evaluation."

After administering an array of psychological tests, the doctor diagnosed T.W. with "bipolar disorder with rule-out psychotic features," which caused "very significant problems" and interfered with T.W.'s "being able to regulate [her] mood, [and] emotions, [causing] [m]ood swings, . . . [and] mania[.]" While the condition could be addressed with medication through "responsible compliance," the doctor noted that T.W. neither took medication nor participated in counseling.

Jeffrey also diagnosed T.W. as having "an adjustment disorder with anxiety," which presented "significant problems relating to the ordinary task[s] of every day living," and impeded her ability to "function[] as an adult, such as being able to be employed, being able to maintain housing, [and] being able to be responsible." Jeffrey also stated that T.W. had "a narcissistic personality disorder," characterized by "an individual who is very involved with her own needs as opposed to the needs of others, [and is] self-absorbed, self-centered, [and has] an arrogant self-regard." These conditions had a significant impact on T.W.'s relationships, as she "[did] not place a priority on making other people safe and [was] not all that troubled by harm coming to other people and [was] able to tolerate doing actions knowing that [those] actions would not be in the best interest of other[s]."

Ultimately, Jeffrey opined "to a reasonable degree of psychological certainty" that T.W. "[was] not prepared to provide a minimum level of safe parenting for [P.W.]." Jeffrey stated that it was unlikely that T.W. could remedy the problem, as T.W. had received extensive opportunities to do so, as she had "been in several lengthy treatment programs," but would "then leave the program[s] [and] relapse."

Jeffrey noted that the bonding session between T.W. and P.W. did not go well, as P.W. indicated that he "didn't want to talk to [T.W.] and that he didn't want to see her." Jeffrey stated that the session was "particularly troubling," because P.W.'s reaction to his biological mother surpassed ambivalence, instead "very directly expressing mistrust of [T.W.], . . . not respond[ing] to her parenting authority, and sa[ying] very directly to her that he wanted to be elsewhere and he wanted to be with the foster family."

By contrast, Jeffrey described the bonding evaluation between P.W. and his foster parents as positive and "normal[]" in the sense that the foster parents related to him, and in response, "[P.W.] [was] affectionate to them." Jeffrey also observed that in allowing P.W. to attend two residential programs with his mother and welcoming his return to their custody when T.W. relapsed, the foster parents showed they were "committed to [P.W.]" and placed "his needs as the priority." Ultimately, Jeffrey opined that P.W. was "securely attached" to the foster parents, who "displayed very competent parenting" and a "real dedication" to P.W. Jeffrey stated that P.W. would be at risk for serious and enduring harm if removed from their care because removal would sever his secure attachment to them, and the harm would be heightened because P.W. had already been removed from their care when T.W. temporarily regained care of P.W. while residing at Straight and Narrow.

The judge issued an oral decision and terminated T.W.'s parental rights. After finding that the evidence clearly and convincingly established the first three prongs of the "best interests of the child" test, N.J.S.A. 30:4C-15.1(a), the judge stated:

As to [prong] four, based upon the expert opinions, the termination of parental rights will not do more harm than good. It is found that not to terminate parental rights with these facts would do great harm to the safety and stability of [P.W.], who is entitled to permanency in a home where he is safe and he is loved.

This appeal followed.

Although "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected," In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), this right is not absolute. In re Guardianship of J.N.H., 172 N.J. 440, 471 (2002). The State, as parens patriae, has the responsibility to protect minor children from serious physical or emotional harm. Ibid. The exercise of this responsibility, in some cases, requires that the parent-child relationship be severed. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).

In termination cases, the State must "demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm to the child." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Furthermore, the State must present sufficient evidence to show that the "best interests" of the child would be substantially prejudiced if parental rights were not terminated. A.W., supra, 103 N.J. at 603.

In evaluating the best interests of the child, a four-prong standard, codified in N.J.S.A. 30:4C-15.1a, must be established. This standard allows for termination when the State proves, by clear and convincing evidence, that:

(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 that 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 [D]ivision 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. [Ibid.]

Our review of the findings of fact made by a trial judge in family cases is limited. J.N.H., supra, 172 N.J. at 472. We afford deference to a trial court's findings of fact because the trial court "has the opportunity to make first-hand credibility judgments about 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). When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. J.N.H., supra, 172 N.J. at 472.

When the "'focus of the review is not credibility,'" and the appellant "'allege[s] error in the trial judge's evaluation of the underlying facts and implications to be drawn therefrom,'" the scope of review widens. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). In such circumstances, deference will be accorded unless the judge's findings were "so wide of the mark that the judge was clearly mistaken." Ibid.

T.W. argues that as to the fourth prong, the judge improperly concluded that terminating her parental rights to P.W. would not do more harm than good. She asserts that, "[w]ithout explaining why[,] . . . [the judge] addressed only the one-hour observation by . . . Jeffrey," and ignored all evidence that was favorable to T.W. T.W. also argues that the judge erred by ignoring the harm that would result from severing P.W.'s ties "with his biological siblings and great[-]grandmother." T.W. maintains that the Court's recent decision in In re D.C., 203 N.J. 545 (2010), was controlling, and required the judge to take "notice of" P.W.'s "relationship with his biological siblings."

DYFS and the law guardian argue that the judge properly concluded that terminating T.W.'s parental rights would not do more harm than good; they further maintain that "the [mere] existence of a sibling bond may not [be used] to deny a child the permanency he deserves," and that T.W.'s "intractable cocaine and drug use," "repeated relapses," and "failed reunifications" with P.W. clearly established that termination of her parental rights would not do more harm than good.

"The fourth prong of the best interests of the child test requires a determination that termination of parental rights would not do more harm than good to the child." K.H.O., supra, 161 N.J. at 354-55. "The risk to children stemming from the deprivation of the custody of [the child's] natural parent is one that inheres in the termination of parental rights and is based on the paramount need the children have for permanent and defined parent-child relationships." Id. at 355 (quoting J.C., supra, 129 N.J. at 26). The fourth prong of the best interests of the child test "cannot [be interpreted to] require a showing that no harm will befall the child as a result of the severing of biological ties. The question . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parent[] than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.

"To determine whether the comparative harm is proscribed by the fourth prong in a case involving a child in foster care," the court must look to "the child's relationship[s] with [both the] biological parents and foster parents[,] [w]eighing the potential harm . . . [caused by] terminating the child's relationship with [the biological parent] against that which might come from removing [the child] from [his or her] foster home." Ibid.

We reject T.W.'s argument. First, the Court's decision in D.C. is inapposite. Second, T.W.'s assertion that a bond existed between P.W. and his biological siblings is unsupported by the record. Finally, there was more than substantial evidence in the record upon which the judge correctly determined that terminating T.W.'s parental rights would not do more harm than good.

In D.C., the Court reversed an order upholding the trial court's denial of an adult sister's request for visitation of her younger twin siblings and remanded the matter for an evidentiary hearing concerning the sister's right to visitation. Supra, 203 N.J. at 552, 557, 574-75. There, the twenty-eight-year-old adult sister sought visitation with her five-year-old twin siblings after they were removed from their biological mother and placed in foster care. Id. at 552, 557. When adoption became imminent, the foster parents objected to continued visitation between the twins and their older sister. Id. at 556. The trial court denied the sister's request for visitation, and we affirmed. Ibid.

In reversing and remanding for an evidentiary hearing, id. at 557, 574-75, the Court held that under the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, the right to visitation between siblings placed outside of the home is presumed during the period preceding adoption, unless the Division establishes that visitation is contrary to the child's welfare. Id. at 565. The Court held that, in the period after adoption, adoptive parents are free, to the same degree as biological parents, to raise their child as they see fit, but they may be ordered to permit third-party visitation where necessary to avoid harm to the child. Id. at 560-62 (observing the benefits that can inure from continued contact between foster children and their biological siblings).

The Court's decision in D.C. is inapposite. This appeal neither implicates the Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6, nor involves a visitation request made by P.W.'s biological siblings or their guardian. D.C. makes clear that after an adoption, P.W.'s adoptive parents would have the right to terminate his contact with his siblings. Supra, 203 N.J. at 560-62, 574-75.

Second, T.W.'s assertion that a bond existed between P.W. and his biological siblings is unsupported by the record. T.W. presented no evidence of a bond between P.W. and his biological siblings, and she overstated any bond that could have existed. During the first four years of his life, P.W. never resided with his biological siblings and, at most, saw them once per week during the one-hour visitations that the Division provided to T.W. at a Burger King. Although the caseworker's testimony and DYFS contact sheets reflect that, during some of these visits, P.W. played with his biological siblings, in view of these minimal contacts, it is unlikely that P.W. regarded his biological siblings as anyone more than playmates. No evidence in the record indicates otherwise.

Finally, there was ample evidence in the record to support the judge's conclusion that termination of T.W.'s parental rights would not do more harm than good, as DYFS presented unrefuted evidence that P.W. would suffer great harm if separated from his foster parents because he was securely attached to them, and in contrast, manifested negativity toward T.W.

Jeffrey opined that P.W.'s primary bond was with his foster parents, and that P.W.'s interaction with T.W. was negative, indicating feelings of mistrust and demonstrating unresponsiveness to her parental authority. During the bonding session, Jeffrey observed that P.W. "was saying directly to [T.W.] that he did not want to be there." At one point, he even attempted to leave the bonding session, as he indicated that he "wanted to be with his foster mother, [and] that he wanted to go to his foster parents." The doctor stated: P.W. "actually went out in the reception area to try to find the foster parents[,] . . . [and] he was quite upset [when he was unable] to find them"; as "[h]e's three years old, . . . this is a very sad and poignant thing." Jeffrey concluded "there has been a real alienation [in] that the child does not want to be with [T.W.] and does not trust her." Jeffrey explained:

The nature of [P.W.]'s relationship with [T.W.] right now is unhealthy . . . he really feels negativity toward her, he does not want to be with her. That is a situation that in and of itself has to be ended in the sense that [it] is really a bad thing for this child to be experiencing.

By contrast, Jeffrey described the bonding evaluation between P.W. and his foster parents as "normal[]" in the sense that the foster parents related to him, and in response, "[P.W.] [was] affectionate to them," there was direct communication and "comfortable relaxation," and "he [was] responsive to their authority." Jeffrey observed:

[A]t one point in the bonding evaluation, . . . [P.W.] got on [his] foster mother's lap and he spontaneously said to her, . .

"I want to stay with you." . . . This is not a situation where there is anything [said] . . . to elicit that. He just put his arms around her neck and said . . . "I want . . . to be with you." And they clearly feel the same way about him. [(quotation marks added).]

Jeffrey opined that P.W. was "securely attached" to his foster parents, who "displayed very competent parenting" and a "real dedication" to P.W. Jeffrey stated that P.W. would be at risk for serious and enduring harm if he were removed from their care, as doing so would sever his secure attachment to them, and the harm would be heightened because P.W. had already been removed from their before when T.W. temporarily regained custody of P.W. during her residential program at Straight and Narrow, which was followed by her eventual relapse.

Additionally, Carrington observed that, during her visits with P.W., T.W. "s[at] at the table," and did not "engage in play with [him]." By contrast, in his foster home, P.W. was "very comfortable," had "a routine," and was "very proud" of his foster father," whom he regarded as his parent. Carrington stated:

[P.W.] refers to [his foster parents] as mom and dad. He's very comfortable [with them].

He interacts . . . with them the way any child would, [and] . . . it's like P.W. is their child[.]"

While a child will undoubtedly suffer from some degree of loss from the termination of a parent's rights, the child cannot and should not be expected to wait for his mother to "get herself together." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 114 (App. Div.), certif. denied, 180 N.J. 456 (2004). Eventually, a child's need for permanency may outweigh his parent's right to maintain a relationship with the child. See id. at 114-15.

This is such a case. Here, P.W. was deprived of the sense of permanency to which he is entitled during T.W.'s unsuccessful attempts to "get herself together." P.W. became securely attached to his foster family and his foster sibling and developed negative feelings toward and mistrust of T.W., after being removed from her care on three occasions due to her intractable drug use. Balanced against P.W.'s relationship with his foster parents, and in view of the unrefuted evidence presented at trial, the judge properly concluded that terminating T.W.'s rights would not do more harm than good.

Affirmed.


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