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New Jersey Division of Youth v. T.P.B

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 21, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
T.P.B., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF S.P.B. AND T.M.B., MINORS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-82-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 11, 2012 -

Before Judges Fuentes, Graves and J. N. Harris.

Defendant T.P.B. appeals from the order of the Family Part terminating her parental rights to her daughters S.P.B., born in May 2007, and T.M.B., born in May 2008. The complaint for guardianship filed by the Division of Youth and Family Services (Division) also named the girls' biological father T.M.S. as a defendant. The court entered default against T.M.S in April 2010. He remained in default status throughout the guardianship trial and up to the date the court delivered its final decision terminating his and defendant's parental rights. T.M.S. did not file his own appeal from the court's decision and is not seeking to join defendant in her appeal.

In this appeal, defendant argues that the Division failed to present sufficient evidence to warrant the termination of her parental rights pursuant to the statutory standards in N.J.S.A. 30:4C-15.1. Although not raised before the trial court, defendant also argues that the Division failed to adhere to the requirements in N.J.S.A. 30:4C-12.1(b) when it rejected a relative that defendant offered as an alternative placement for the girls. After reviewing the record developed before the trial court and mindful of prevailing legal standards, we reject these arguments and affirm.

I

The Division's involvement with defendant and her family preceded the birth of the two girls who are the subject of this guardianship action. In 2006, the Division received a referral that defendant, who had been exhibiting mental health problems, had given birth to her first child, a boy identified here as C.B. Although the initial complaints of abuse or neglect proved to be unfounded, the Division decided to assist defendant and her family and arranged to place C.B. in the custody of his maternal grandmother S.B. This arrangement was formally sanctioned by the Family Part when the court awarded S.B. custody of her grandson C.B in an order dated July 18, 2006.

The Division's next involvement in defendant's life was triggered by the birth of S.P.B. in May 2007. A social worker at University Hospital in Newark reported to the Division her concern for the baby because of defendant's history of post-traumatic stress disorder, attention deficit hyperactivity disorder, and developmental disability. Hospital staff placed the newborn infant "on hold" while the Division sought a formal order of custody from the Family Part. After reviewing the evidence, the court denied the Division's request for custody and dismissed the complaint alleging abuse and neglect.

The next relevant event occurred when defendant was residing in South Carolina. According to certified records from the South Carolina Department of Social Services dated April 3, 2008, the agency received a referral that eight-month-old S.P.B. had a "superficial laceration on [her] index finger," appeared to be missing hair from the back of her head, and was not up to date on her vaccinations. Defendant, who was twenty-one years old at the time, was pregnant with T.M.B. and was not receiving prenatal care. The South Carolina caseworker who responded to defendant's home to investigate these allegations indicated that defendant was "very rude" and "hostile." The South Carolina authorities substantiated the allegations of neglect and placed S.P.B. in a form of "alternate care."

A Division caseworker visited defendant in South Carolina on February 6, 2008, and informed her that her case would be transferred. A few months later, while still residing in South Carolina, defendant gave birth to her third child T.M.B. The South Carolina authorities took custody of T.M.B. and limited defendant's contact with her to supervised visitation.

In late July 2008, defendant's mother S.B. arrived in South Carolina with the express purpose of seeing her grandchildren.

The South Carolina authorities agreed to a safety plan through which defendant's contacts with the girls would be supervised by S.B. A short time thereafter, S.B. arrived at the Division's offices in Bloomfield and told the caseworker that she had just arrived from South Carolina with defendant and the two girls, and needed assistance in the form of milk and diapers. At that time, S.B. was also caring for defendant's first child, C.B.

The arrangement and cooperation between defendant and S.B proved to be short-lived. On August 4, 2008, defendant informed a Division caseworker that she wanted to move out of her mother's residence because S.B. was "too bossy." On October 15, 2008, S.B. informed the Division that she had lost contact with defendant and did not know where she was living. S.B. also indicated that she would no longer be able to provide her grandchildren with long-term care. S.B. was specifically doubtful about her ability to care for the two girls.

The Division referred defendant to psychologist Eric Kirschner, Ph.D. for a psychological evaluation. Dr. Kirschner memorialized his findings in a report dated December 4, 2008. According to Dr. Kirschner, defendant does not have a good relationship with her mother. In defendant's own words: "Me and her don't get along. We just don't. She never wanted me."

Defendant reported to Dr. Kirschner that her mother sent her away to live with her aunt when she was just six years old. Her aunt thereafter sent her to live with her father and stepmother in Detroit. This appears to have been a particularly traumatic period in defendant's life. She told Dr. Kirschner that she was sexually molested by her father when she was seven or eight years old. Her father was arrested after defendant was taken to a hospital by her stepmother, to whom she disclosed the molestation. She was placed in foster care, where she remained until the age of twelve when she began living with her mother in New Jersey.

Defendant continued to live with her mother for the next two years. At age fourteen, her mother sent her to live with her stepmother in South Carolina. She was sexually assaulted again when she was fifteen years old, this time by her stepmother's boyfriend. She thereafter returned to New Jersey and lived with her mother until she was eighteen years old. Thereafter, she oscillated between New Jersey and South Carolina until age twenty-one. At the time of her evaluation with Dr. Kirschner, she was residing with her cousin and looking for a permanent housing arrangement.

Defendant was hospitalized six times for psychiatric reasons between ages thirteen and seventeen. She reported experiencing visual and auditory hallucinations. She was not enrolled in outpatient therapy and had not been prescribed any psychiatric medications. Her entanglements with the criminal justice system occurred exclusively during her turbulent teenage years; she told Dr. Kirschner that she did not have any current legal problems.

Dr. Kirschner recommended that defendant have only supervised contacts with her children. In his opinion, defendant needed outpatient psychiatric treatment, parenting skills classes, services in completing her high school education, and to secure stable and suitable housing. Dr. Kirschner also suggested that defendant's mother S.B. be evaluated and referred to psychiatric therapy if warranted.

On December 21, 2008, S.B. contacted the Division, notifying them that she had been hospitalized for the previous five days with a fractured leg. During that time and at S.B.'s request, the boy, C.B, was placed temporarily with his godmother, and defendant moved into S.B.'s residence to care for the girls. According to Division records, when S.B. returned from the hospital she had an argument with defendant about her lifestyle. The situation quickly deteriorated when defendant threatened to leave and take the girls with her. As instructed by a Division caseworker, S.B. called the police to report this unauthorized assumption of custody. Defendant returned to the residence when she heard her mother on the phone with the police.

Pursuant to N.J.S.A. 9:6-8.29 and N.J.S.A. 9:6-8.30, the Division removed the girls from S.B.'s residence when S.B. informed the caseworker that she could not care for them while she was recovering from her injury. The Division contacted defendant that same day and informed her that the girls were no longer living with their grandmother. At S.B.'s suggestion, the Division also contacted defendant's cousin as a possible placement for the girls, but the cousin was unwilling to assume this responsibility. Other family friends contacted by the Division were equally unavailable. Left without alternatives, the Division filed a formal order to show cause and verified complaint for legal and physical custody of the girls on December 29, 2008.

Defendant appeared before the Family Part on January 27, 2009, the return date of the order to show cause. In light of Dr. Kirschner's findings concerning defendant's low cognitive abilities, the court decided that the case should proceed pursuant to N.J.S.A. 30:4C-12, and directed the Division to retain physical and legal custody of the girls.

The Division retained psychiatrist Dr. Samiris Sostre to perform a psychiatric examination of defendant. Dr. Sostre attempted to interview defendant on two separate occasions, April 21, 2009 for approximately fifteen minutes, and June 3, 2009, for approximately five minutes. Both times defendant terminated the interview abruptly and refused to answer questions or otherwise cooperate with Dr. Sostre. Despite these limitations, Dr. Sostre noted that [d]uring her psychological evaluation, she had reported that her admissions had been precipitated by hallucinations. During her interview of June 3, 2009, she reported that the psychiatric hospitalizations had been precipitated by suicidality and her interview on April 21, 2009, indicated that at least one of her hospitalizations had been for an aggressive act when she tried to blow up her mother's car.

It is difficult to make a diagnosis with the poor information that [T.P.B.] had provided during the interview, but there is enough evidence to suggest that she likely experiences psychotic symptoms, especially marked by paranoia and that there is likely mood symptoms that would explain the irritability. She does not sleep well at nights and for only a few hours as per her reports, insomnia is a symptom seen in many psychiatric illnesses. Her recent weight loss, which consisted of 20 pounds weight loss, and some anxiety are also consistent with a mood disorder such as a depressive psychotic disorder, bipolar disorder, or with one of the psychotic disorders such as schizophrenia. In view of a history of past sexual abuse, there may be some symptoms of post-traumatic stress disorder with the irritability in affect. There is a possibility of an anxiety disorder as well as the personality disorder in view of a pervasive pattern of difficulties in relationships with others.

Defendant did not attend a number of visits with the girls arranged and supervised by the Division. On October 20, 2009, the court approved the termination of defendant's parental rights followed by adoption as a permanent plan for the girls. The court noted, however, that the Division may amend the goal of adoption to include S.B. as the most likely person to adopt the girls. Defendant's unwillingness to cooperate continued thereafter. On November 12, 2009, the Division brought the girls to meet with defendant, but she failed to attend. On December 15, 2009, the Division filed a guardianship complaint against defendant seeking the termination of parental rights.

Approximately one week later, the girls' foster parents informed the Division of their willingness to permit S.B to continue to visit and be a part of the girls' lives even after they formally adopt the girls. On Christmas Eve in 2009, S.B. visited with her granddaughters at a local Division office. S.B. informed the caseworker that she had started a new job and could no longer visit with girls on weekdays. Future visits would have to take place on weekends. Unfortunately, Division policy provides that weekend visits are only arranged for biological parents. Thereafter, S.B. did not attend the visit scheduled for January 7, 2010.

On February 2, 2010, the Division approved S.B. for overnight weekday visits with the girls. Given her work schedule, S.B. accepted, conditioned upon a caseworker picking up the children early the following morning. The Division also purchased "toddler beds" for S.B. to keep in her home. On March 9, 2010, the Division learned that defendant was pregnant with her fourth child and appeared hostile and uncooperative while at her doctor's office.

Dr. Kirschner conducted his second psychological evaluation of defendant on March 11, 2010. The problems previously noted remained, exacerbated by the passage of time and defendant's continued inability to address her psychiatric problems. Defendant had also failed to attend supervised visitation with the girls for an entire month. Dr. Kirschner also conducted a bonding evaluation to determine the quality and extent of the relationship that existed between defendant and the girls. Dr. Kirschner found S.P.B. to have only a limited awareness of defendant as a parental figure. T.M.B. exhibited a blank indifference to her mother's presence and showed no emotional attachment to defendant. In light of these findings, Dr. Kirschner opined that terminating defendant's parental rights would not cause undue harm to the children.

On March 18, 2010, Dr. Kirschner conducted a bonding evaluation between the girls and their foster parents. He found the children emotionally attached to their foster parents and viewed them as their principal parental figures. Dr. Kirschner found a strong and supportive relationship between the girls and their foster parents:

In regard to the bonding evaluation with the foster parents, [both girls] appeared to be comfortable and at ease in their presence with no signs of psychological distress. [The foster parents] were attentive to [the girls]. The foster parents engaged them in age-appropriate, collaborative play. [The foster parents] appeared attuned to [the girls'] needs. The foster parents provided appropriate praise and limit setting. Both children referred to their foster parents as "mommy" and "daddy." The clinical data suggested that both girls viewed their foster parents as their psychological parents whom they had learned to rely upon and trust to provide for their needs and safety. Overall, [the girls'] behaviors were consistent with those commonly observed between a securely attached child and an appropriate parental attachment figure.

The maternal grandmother S.B. missed her March 16, 2010 appointment with Dr. Kirschner for a bonding evaluation. The children had an overnight visit with S.B. on March 24, 2010. They were resistant and cried when left behind at S.B.'s residence by the caseworker. They appeared calmer the following morning.

S.B. was late for her second bonding evaluation appointment with Dr. Kirschner. In sharp contrast to his positive assessment of the relationship between the girls and their foster parents, Dr. Kirschner found the children were apprehensive in S.B.'s presence. Neither one of the girls showed any affection toward their grandmother; they both kept their distance from S.B., clinging to the caseworker. At one point, both girls "were essentially crying hysterically." Dr. Kirschner intervened to calm the situation and introduced learning toys and coloring books in an effort to restore the children's composure.

In his bonding evaluation report, Dr. Kirschner noted that despite her status as a "grandmother," S.B. is only thirty-eight years old. At the time, S.B. also had custody of her three-old grandson. S.B. began working fulltime as the activity director at an adult daycare facility in 2009. Her only contacts with the girls had been limited to two overnight visits arranged by the Division. According to S.B., her work schedule prevented her from spending more time with her granddaughters.

In this light, Dr. Kirschner concluded that severing the girls' relationship with their foster parents "would likely result in serious and enduring psychological harm . . . ." Such harm could manifest itself in the form of "emotional and behavioral regression, as well as long-term cognitive, affective and interpersonal impairment." According to Dr. Kirschner, no similar harm would befall the girls if their relationship with their grandmother was severed. Dr. Kirschner thus recommended that the girls remain in the custody of their foster parents.

Psychologist Brianna Cox, Psy.D., conducted a psychological evaluation of defendant on July 7, 2010. Dr. Cox submitted a comprehensive report describing defendant's psychological and developmental problems, and the many unsuccessful attempts made to address them. Dr. Cox characterized defendant's prognosis as "poor" due to her lack of insight, denial, and intellectual limitations. She opined that defendant "is not currently capable of parenting independently and it is expected that any child placed in her care would be at risk of harm. If [defendant] is willing and able to participate in services, her prognosis may improve."

Defense counsel retained psychologist Minerva C. Gabriel, Ph.D., to conduct an independent psychological evaluation and perform comparative bonding evaluations. In her report dated November 4, 2010, Dr. Gabriel described defendant as "immature," having "poor judgment," and having "little insight as to her problems and present predicament." In a bonding evaluation report dated October 5, 2010, Dr. Gabriel opined, with "psychological certainty," that the girls "will not suffer irreparable harm if their mother's parental rights to them are terminated, as they do not have a bond with their mother."

Dr. Gabriel also found that S.B. and the foster parents had a loving and caring relationship with the girls. However, Dr. Gabriel expressed a strong preference for adoption by blood relatives. She thus recommended that S.B. adopt the girls but, if deemed possible, the foster parents should continue to have a relationship with the girls.

II

Based on the record developed before the trial court, we are satisfied that the Division presented overwhelming proof of defendant's inability to parent her two daughters. This record also documents the numerous services the Division made available to defendant to assist her in coping with her mental health problems and intellectual limitations. Unfortunately, defendant's mental illness and generally dysfunctional lifestyle are persistent obstacles to her and the Division's efforts to keep defendant and her two daughters united.

Against this record, Judge Stephen J. Bernstein correctly found that the Division satisfied its obligation to provide services to defendant, and had met all of the legal requirements for an order of guardianship under the four statutory prongs in N.J.S.A. 30:4C-15.1(a). We discern no legal basis to disturb the trial court's decision. See generally In re Guardianship of K.H.O., 161 N.J. 337 (1999) (discussing the standards for reviewing a termination appeal); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Termination of defendant's parental rights was the only way to provide these two young girls with a safe and secure home environment. When a parent's mental illness renders her unable to safely care for her child, lack of moral culpability is not sufficient "to tip the scales" in her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).

Although not consistently pursued, the record shows that defendant's trial strategy was to concede her own parental unfitness and offer her mother, S.B., as a suitable alternative placement. But for S.B.'s orthopedic injury, this may have proven to be a suitable alternative placement. However, S.B.'s fractured leg rendered her incapable of caring for her granddaughters for an extended period of time. As Judge Bernstein noted, S.B.'s inability to care for the girls did not change after S.B.'s physical recovery; her demanding work schedule made her available to the girls only during sporadic overnight visits. This caused the emotional schism between the girls and their grandmother noted by Dr. Kirschner in his bonding evaluation, and relied on by Judge Bernstein in support of his decision to rule out S.B. as a suitable alternative placement.

On the other side of the scale was the girls' relationship with their foster parents. In this respect, Judge Bernstein rejected Dr. Gabriel's opinion indicating the girls would suffer little to no emotional trauma if forced to sever their relationship with their foster parents. Judge Bernstein relied instead on Dr. Kirschner's bonding evaluation which predicted a great emotional and psychological trauma if the girls were forced to give up their "emotional" parental figures, whom both children referred to as "mommy" and "daddy." We discern no legal basis to interfere with the court's findings in this respect.

Relying on our recent opinion in Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), defendant argues that the court erred in not awarding custody of the girls to S.B. We disagree. In K.L.W., the Division failed to contact and investigate the suitability of the maternal grandparents in response to the defendant's request. Id. at 570-71. The Division argued it was "obligated to respect [the defendant's] privacy and honor her request to refrain from contacting her parents." Id. at 578.

We reversed and held that the Division had a statutory duty under N.J.S.A. 30:4C-12.1 to search for and identify relatives who may be willing to care for the child. Id. at 579-80. "[W]hen the Division complies with its obligation to identify and assess relatives, it increases the likelihood of a decision that is in the best interests of the child." Id. at 580. A guardianship order issued without the information available by a search conducted under N.J.S.A. 30:4C-12.1 is deemed to be against the best interest of the child. See id. at 581.

Here, by contrast, Judge Bernstein had available to him all the information necessary to assess the suitability of S.B. to care for these girls. The court thus had all of the information necessary to decide whether termination was warranted under the established criteria in N.J.S.A. 30:4C-15.1(a). The guiding principle in this analysis remains the best interests of the child. We thus affirm substantially for the reasons expressed by Judge Bernstein in his oral opinion delivered from the bench on November 30, 2010.

Affirmed.

20120621

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