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New Jersey Division of Youth and Family Services,*Fn1 v. T.S


August 29, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0169-11.

Per curiam.



Submitted August 22, 2012

Before Judges Simonelli and Waugh.

Defendant T.S., the biological mother of M.F.S, born in March 2010, appeals from the August 18, 2011 Family Part order, which terminated her parental rights to the child. We affirm.

We derive the following facts from the record. In February 2010, respondent New Jersey Division of Youth and Family Services (Division or DYFS), received a report from a hospital alleging that defendant, then pregnant with M.F.S., was admitted to the psychiatric crisis unit after attempting suicide by hanging, and attempting to end the pregnancy by using a hammer on her abdomen to "get the baby out." Defendant had received no prenatal care, and allegedly claimed she had been raped and did not want the baby. While in the hospital, defendant allegedly attempted suicide several times, vaginally inserted a spoon to induce labor, and ruptured her amniotic sac, causing her to go into labor and deliver M.F.S. six weeks prematurely.

M.F.S. was born with respiratory distress, sepsis, and bleeding on the left and right side of her brain, was unable to control her body temperature on her own, and could not eat without assistance. M.F.S. also has Sickle Cell Anemia, developmental delays, hip dysplasia, reflux, and Cerebral Palsy. She must be medically monitored very closely, and will have significant physical limitations requiring treatment for the rest of her life. Among treatments, M.F.S. presently attends physical therapy three times weekly, requires leg braces, and is expected to be wheelchair-bound, depending on the progression of the Cerebral Palsy.

The Division obtained custody of M.F.S. based on serious concerns about the mental stability of defendant and her mother, K.S., with whom defendant lived all of her life. On April 1, 2010, the Division placed M.F.S. in a foster home for medically fragile children, where she currently remains. The foster parents want to adopt her.

On April 7, 2010, Larry N. Seidman, Ph.D., performed a psychological evaluation of defendant. During the interview, defendant denied everything the hospital had reported and said that the reporters had lied. Tests revealed that defendant has an IQ of fifty-five, and is mildly mentally retarded and functionally illiterate, among other deficiencies. Based on the test results, Dr. Seidman opined:

Complicating [defendant's] clinical picture are signs of an underlying thought disturbance, characterized by poor judgment, a high level of anxiety, infantile social behavior, and a propensity toward egocentric, aggressive, and hysterical acting-out behavior. Further, [defendant's] immaturity, problems in control of anger and her primitive drives, and significant feelings of depression, are likely to cause her to behave in a highly unpredictable manner, and to have great conflicts regarding the female role, which is apt to result in considerable problems taking adequate responsibility for caring for her child.

The doctor diagnosed defendant with mild to moderate mental retardation, psychotic disorder not otherwise specified, generalized anxiety disorder, and dysthymic disorder. He concluded that defendant is "intellectually, adaptively, and emotionally unable to care for her infant child regardless of the quality and quantity of the treatment plan offered to her."

On April 26, 2010, Rafael M. Baez, M.D., performed a psychiatric evaluation of defendant. Defendant denied she had any psychiatric or medical history, previous psychiatric hospitalizations, or past treatments with psychiatric medications. Dr. Baez diagnosed defendant with borderline personality disorder and dependent personality disorder. He concluded that defendant "has no insight whatsoever and also is having denial about herself and her problems."

On March 2, 2011, Bancroft G. Davis, Psy.D. performed a psychological evaluation of defendant to determine if she could safely and appropriately parent and supervise M.F.S. Defendant was enrolled in anger management and parenting skills classes at the time of the evaluation. She denied that she had tried to end her pregnancy, had past suicidal ideation, or had a history of mental health difficulties, anger management problems, anxiety, depression, or self-injurious behavior. Tests confirmed that defendant is functionally illiterate and has an IQ of fifty-five. Tests also revealed that defendant's concentration and attention were fair to poor; her insight and judgment were both poor; her remote memory was deficient and anecdotal; her recent memory was poor; and she evidenced paranoid delusions and displayed bizarre thought patterns.

Dr. Davis diagnosed defendant with a thought disorder, most likely a paranoid type of schizophrenia, and mild mental retardation. He concluded that: (1) defendant is "intellectually and emotionally incapable of caring for her infant and ensuring [the child's] health and safety on a consistent basis[;]" (2) it is not likely "that cognitive therapy will produce lasting results, as [defendant] lacks the intellectual capacity to participate fully in this treatment regime[;]" and (3) "psychoeducational interventions alone will not produce significant improvement in her ability to care for her daughter in a safe way or on a consistent basis."

In addition to the psychological and psychiatric evaluations, the Division provided other services to defendant, such as visitation, referrals to the Division of Developmental Disability (DDD) and the Division of Disability Vocational Rehabilitation (DVR), anger management and parenting skills classes, psychotherapy, and psychological and psychiatric evaluations of K.S.*fn3 Defendant failed to attend her appointments with DVR, and she did not qualify for services with DDD due to her age. Defendant also failed to appear for psychotherapy, and it was later determined that she would not benefit from such treatment due to her low-functioning. The Division also considered but validly disqualified K.S. and defendant's maternal aunt*fn4 as possible caregivers. Defendant gave no contact information for any other potential caregivers.

The Division's expert, James Loving, Psy.D., performed a psychological evaluation of defendant and bonding evaluations between defendant and M.F.S., and between M.F.S. and her foster parents. His undisputed expert testimony revealed that defendant's psychotic disorder and other diagnoses rendered her incapable of both successfully engaging in treatment and understanding and addressing M.F.S.'s medical issues and needs and parenting the child safely.

Dr. Loving found that M.F.S., then eighteen months old, had "healthy, strong, positive, secure attachments to both of her [foster parents] who have been her parent figures essentially since birth[]" and "a positive but weak attachment with [defendant] . . . who [M.F.S.] does not see as her primary caregiver, her primary attachment figure." The doctor concluded that if M.F.S. were removed from her foster parents and placed with defendant, she would be at an increased risk of suffering serious and enduring harm that defendant could not mitigate; however, she would not face the same type of risk and harm if defendant's parental rights were terminated. He concluded that stability and permanency are more critically important for M.F.S. than they are for many children due to her complicated medical issues. He also concluded that "all things being equal, what would be best for [M.F.S.] would be to experience as much continuity, as much stability as possible and to have a sense of permanency as soon as possible."

Based on the above evidence, the trial judge held that the Division had proved all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence. The judge entered an order on August 18, 2011 terminating defendant's parental rights to M.F.S. This appeal followed.

On appeal, defendant contends that the evidence did not support the judge's findings that the Division proved all four prongs of N.J.S.A. 30:4C-15.1a. We disagree.

Our Supreme Court has established the standard of review in parental termination cases:

Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights. [N.J. Div. of Youth & Family Servs. v. F.M., ___ N.J. ___ (2012) (slip op. at 34-35) (internal quotation marks and citations omitted).]

Applying this standard, we discern no reason to disturb the trial judge's decision, as substantial and credible evidence in the record amply supports it.

A court can terminate parental rights when the Division shows 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 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 [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. [N.J.S.A. 30:4C-15.1a.]

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, ___ N.J. at ___ (slip op. at 34) (internal quotation marks and citations omitted).

Actual harm need not be demonstrated in order for prong one to be satisfied. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The test is whether the child's safety, health or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. Ibid. The first prong can be satisfied by establishing that the parent suffers from a mental illness that renders him or her unable to parent, or evidence that the parent would not have the mental status sufficient to eliminate the risk of future harm to the child. Id. at 439-440; see also 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). Such evidence exists here.

The focus of prong two is whether the parent had cured and overcome the initial harm that endangered the child, and whether the parent is able to prevent future harm. In the Matter of the Guardianship of K.H.O., 161 N.J. 337, 348 (1999). Prong two may also be satisfied if "'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, ___ N.J. at ___ (slip op. at 39) (quoting K.H.O., supra, 161 N.J. at 363).

Notwithstanding defendant's participation in anger management and parenting skills classes, and her apparent willingness to eliminate any harm to M.F.S., she suffers from a mental illness that renders her unable to parent M.F.S. and does not have the mental status sufficient to eliminate the risk of future harm to the child even if given more time and further services. In addition, defendant is unable to mitigate the serious and enduring harm M.F.S. may suffer if removed from her foster parents, and the delay of permanent placement clearly will add to the child's harm.

Prong three "requires an evaluation of whether DYFS 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." Id. at ___ (slip op. at 40) (quoting N.J.S.A. 30:4C-15.1a(3)). "'The diligence of DYFS's efforts on behalf of a parent is not measured by' whether those efforts were successful." Ibid. (quoting In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999)). "Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of DYFS's efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393.

"Experience tells us that even DYFS's best efforts may not be sufficient to salvage a parental relationship." F.M., supra, ___ N.J. at ___ (slip op. at 40). Despite the Division's diligent efforts to provide services to defendant, her mental illness and intellectual functioning render her incapable of benefiting from those services. There are no available alternatives to termination.

"'[T]o satisfy the fourth prong, the State should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" Id. at ___ (slip op. at 41-42) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is '[a] child's need for permanency.'" Id. at ___ (slip op. at 42) (quoting M.M., supra, 189 N.J. at 281). "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that [her] most deeply formed attachments will not be shattered." Ibid.

The uncontroverted expert evidence in this case established that M.F.S. has been with her foster parents since approximately one month after her birth. M.F.S. has a weak attachment to defendant, but has a positive and secure attachment to her foster parents, which, if severed, would likely cause the child serious and enduring harm that defendant cannot mitigate.

In addition, because of her significant medical issues, permanency is critical for this child.


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