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New Jersey Division of Youth and Family Services,*Fn1 v. M.H

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 17, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,*FN1 PLAINTIFF-RESPONDENT,
v.
M.H., DEFENDANT-APPELLANT.
IN THE MATTER OF THE GUARDIANSHIP OF T.B., E.B., AND S.H., MINORS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FG-13-59-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 19, 2012

Before Judges Parrillo and Sabatino.

Defendant, M.H., appeals from an August 17, 2011 order of the Family Part terminating her parental rights to her sons, E.B., born May 3, 2006, and S.H., born March 4, 2008.*fn2 We affirm.

M.H.'s three children were born with varying special medical and developmental needs. T.B. has been diagnosed with dwarfism and learning disabilities. E.B. has been diagnosed with autism. S.H. was born with weight issues but, after being removed from M.H. at just weeks old, is now developmentally on track and carries no diagnoses.

The Division first became involved with the family on September 8, 2007, when it was reported that M.H. was in an abusive relationship with M.B., who was drug involved. On October 1, 2007, the Division learned that M.H. and her children had moved to a shelter for domestic violence victims, where M.H. informed the Division that she was in fear of M.B. because he had physically abused her. She signed a case plan agreeing to undergo a psychological evaluation and accept services from the Division for herself and her children. Despite her representations to the Division, on November 13, 2007, M.H. left the shelter and reunited with M.B., who refused to cooperate with multiple substance abuse evaluations scheduled by the agency.

Four months later, on March 4, 2008, S.H. was born with weight issues. When the Division caseworker inquired about the older children's medical care, M.H. could not remember the last time they were seen by a pediatrician, and was unable to make an appointment without the caseworker's intervention. S.H. was scheduled to be seen by a pediatrician on March 20, 2008 due to concerns that he was not adequately gaining weight. After receiving a report that M.H. and M.B. refused to take S.H. to the scheduled appointment, the Division conducted an emergency removal of all three children that same day. It was thereafter learned that all of S.H.'s feeding bottles supplied by his parents were diluted and he was nutritionally deprived.

It was also ascertained, with respect to the other children, that T.B. required orthopedic appointments to determine whether surgery was needed to ensure proper leg development. And E.B., who was non-verbal and non-interactive, required extensive testing upon his placement in resource care that ultimately resulted in an autism diagnosis.

On March 25, 2008, the Division was granted custody of all three children. Thereafter, while M.B. resisted and eventually abandoned her on the streets of Asbury Park with no money, M.H. engaged in services arranged by the Division, including parenting and domestic violence classes, therapy, and therapeutic supervised visits. Despite her participation in these services, the Division determined that M.H.'s parenting ability did not improve and she remained unable to meet the needs of her children. In fact, in March, 2010, her therapeutic visitation was discontinued after eighteen months because M.H. failed to show any improvement in her parenting abilities and continued to have difficulty in effectively supervising her children.*fn3 For instance, M.H. was unable to comprehend E.B.'s limitations despite attempts to educate her, believing instead there was nothing wrong with E.B. And although she was informed of a variety of classes on parenting techniques for autistic children and offered transportation, she attended only two.

Reunification with her children was made even more difficult because of M.H.'s lack of stable housing. When she did secure housing around March 2010, after a period of homelessness and living with a variety of friends and family members, it was with an individual, G.W., who the Division discovered had a criminal background, was arrested for a domestic violence dispute, and failed to participate in services to address the abuse and neglect litigation involving his biological children. M.H. continued this relationship even after she was advised that he posed a risk to the health and safety of her own children, with whom she could not be reunited if her paramour remained in the home.

M.H. submitted to several evaluations throughout the Division's involvement with this family. As early as December 2007, Dr. Chester Sigafoos found M.H. to be mildly mentally retarded and suffering from a constellation of psychological disorders; moreover, she does not understand the nature of these disorders nor their impact on her ability to be an effective parent. According to Dr. Sigafoos, these disorders would interfere with M.H.'s ability to effectively parent her children:

[M.H.'s] limited intellectual functioning may contribute to an inability to read and comprehend basic printed instructions necessary to insure the health and well being of the child. Such limited intellectual functioning also consists of impaired abstract abilities. These cognitive deficiencies limit [her] ability to understand situations, even those of a simple nature, and undermine the adequacy of decisions [M.H.] may need to make bearing on the welfare of a child.

Dr. Sigafoos opined that M.H.'s prognosis for improvement was guarded.

Several years later, on February 8, 2011, Dr. Todd Traina performed a psychological evaluation of M.H. Finding her in the low average range of intellectual functioning, Dr. Traina reported:

[M.H.'s] WASI scores indicate that her intellect can impede her ability to adequately parent. This indicates that she might be able to fulfill certain parenting obligations, but when her environment becomes over stimulating, like if she was expected to multi-task, she might have difficulty simultaneously integrating information from multiple sources while making adequate decisions. Given her cognitive limitations she will likely overlook relevant details in her surroundings.

Dr. Traina concluded that M.H.'s "capacity to presently independently parent all three of the subject children appears poor." Dr. Traina reiterated this opinion at the guardianship trial, wherein he testified that M.H.'s cognitive limitations would place the children at risk as M.H. would not be able to monitor all three children while simultaneously and continually providing a safe environment. According to Dr. Traina, M.H. would likely be "cognitively overwhelm[ed]" when forced to multi-task.

Dr. Traina also performed a bonding evaluation of M.H. with her three children. Notwithstanding her consistent attendance at visitations, Dr. Traina found that M.H. was unable to maintain a bond with any of her children and seemed incapable of interacting with them in a manner that would foster development of a secure bond. He concluded that "within a reasonable degree of psychological certainty, the bond observed between [M.H.] and any of the subject children does not appear capable of adequately nurturing them at this time. Should this bond be broken, this evaluator does not believe the children will suffer any enduring harm or loss reaction."

In contrast, on February 25, 2011, Dr. Traina found a secure bond existed between S.H. and his resource mother. Dr. Traina concluded that S.H. would likely suffer harm - emotional and developmental regression - if removed from his resource home and that M.H. lacked the ability to mitigate this harm if S.H. were returned to her care.

At the guardianship trial, M.H. offered no contrary expert proof, but M.H.'s sister testified on her own behalf. M.H. also produced Charles Crudup, a Division adoption case manager, who testified that M.H. had obtained a two-bedroom apartment in Asbury Park and was residing there alone. Additionally, M.H. was participating in one-on-one counseling and mentoring sessions at Jewish Family and Children's Services with a woman who has experience with autistic children.*fn4

At the close of evidence, the Family Part judge found that the Division had proven all four prongs of the statutory "best interests" test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence and therefore entered an order terminating M.H.'s parental rights to all three children. Specifically, the judge found that M.H. failed to attend to S.H.'s medical needs and further that she could not appreciate the developmental limitations of T.B. and E.B., so that the children's health, safety and development would continue to be endangered by M.H. Moreover, while M.H. may have participated in Division services, she was unable to correct the problems:

As to the mother, it is not that she is unwilling to perform the services necessary in order to correct the problems. The

[c]court finds that essentially she's established that she is unable.

And the [c]court is satisfied from what it has observed and reported here that it is not simply another pair of hands that is necessary. The [c]court has to determine whether or not the mother can independently care for the child.

The [c]court cannot provide another pair of hands. What the [c]court would need to provide in these circumstances is not another pair of hands. The [c]court would need to provide another parent. Another parent who actually makes the decisions needed for the mother, and it was noted of course that the mother at the time of the removal had not brought the children to any pediatric visits, could not remember when one was last scheduled and had difficulty even carrying out the routine function of scheduling a pediatric visit for the children.

[I]f the [c]court were to return the children to her care, the [c]court would be responsible to see that essentially not for a period of time, but essentially forever, there would be other people in the home caring for these children, and being primarily responsible for the care of these children.

That is not parenting and that is not what the children deserve. They deserve someone who is a consistent and long-term caregiver.

[T]o return the children to the mother under these circumstances would be [a] recipe for disaster for the children.

As concerns the third prong, the judge found that the Division had provided more than adequate services and properly evaluated alternatives to termination. And lastly, under the fourth prong, the judge found that termination of parental rights would not do more harm than good to the children, finding that the children were not bonded to M.H., so they would not be harmed if their contact with her were to cease.

On appeal, M.H. raises the following issues:

I. THE JUDGMENT OF GUARDIANSHIP TERMINATING M.H.'S PARENTAL RIGHTS SHOULD BE REVERSED BECAUSE THE DIVISION WAS EQUITABLY ESTOPPED FROM MOVING ITS GUARDIANSHIP COMPLAINT FOR TRIAL.

II. THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE ALL FOUR STATUTORY PRONGS OF THE BEST INTERESTS TEST BY

"CLEAR AND CONVINCING" EVIDENCE AND BECAUSE THE DIVISION DID NOT PRESENT "COMPELLING REASONS" TO TERMINATE M.H.'S PARENTAL RIGHTS.

(A)

ASSESSING A PARENT'S LIFESTYLE DECISIONS IS NOT AN APPROPRIATE BASIS FOR FINDING OF "HARM" UNDER THE FIRST PRONG OR "UNFITNESS" UNDER THE SECOND PRONG.

(B)

THE DIVISION DID NOT SATISFY ITS BURDEN TO MAKE REASONABLE REUNIFICATION EFFORTS OR ITS DUTY TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.

(C)

TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.

We find no merit to these contentions and affirm substantially for the reasons stated in Judge Flynn's comprehensive oral opinion on August 17, 2011. We add only the following comments.

We review whether a family court decision terminating parental rights is "supported by adequate, substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). "Only when the trial court's conclusions are so clearly mistaken or wide of the mark should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). In this regard, we "accord deference to family court factfindings" because of "the family court's special jurisdiction and expertise in family matters" and the fact that they are "in the best position to judge the credibility of the witnesses." Cesare v. Cesare, 154 N.J. 394, 413-14 (1998).

Here, M.H. failed to provide her children with a safe environment by repeatedly failing to attend to their specialized medical needs, placing their health and development at serious risk. Not only was S.H. receiving inadequate nourishment as evidenced by the diluted formula that M.H. had been providing him, but she had also neglected to take the child to a follow-up appointment with a doctor following his birth. And upon the children's removal, it was also ascertained that T.B.'s development under M.H.'s care had been substantially delayed and E.B.'s autism left undiagnosed. Not only were the children's medical needs left unattended, they were also exposed to an environment of domestic violence, and M.H.'s later residing with a man suspected of child abuse prevented the children's reunification with their mother.

Despite the Division's efforts to assist M.H. in correcting the circumstances that led to her children's removal from her home, M.H. remained simply unable to effectively parent, due mainly to her cognitive limitations. This was not only the undisputed conclusion of the experts, but the professionals as well who assisted M.H., such as the YMCA worker who expressed that after eighteen months of participation, M.H. "wasn't moving any closer towards unsupervised visits and didn't appear to be taking full advantage of the Enhanced program." And despite Division referrals to classes for parents with autistic children, many of which she declined to attend, M.H. still does not grasp E.B.'s condition, instead hoping "that eventually [E.B.] will grow out of autism."

The record also well illustrates the plethora of other services the Division has offered M.H. It also supports the finding that there was no alternative to adoption. The Division contacted and evaluated a number of individuals suggested by M.H. and M.B. Other than M.H.'s sister, who agreed that T.B. be placed with her for adoption, no other suitable familial placements were identified.

Lastly, the undisputed expert proof demonstrated no real bond between M.H. and any of her three children while S.H. enjoys a secure bond with his resource mother. If broken, the expert opined S.H. would likely suffer emotional and developmental regression, leading to the uncontroverted conclusion that termination of M.H.'s parental rights will not do more harm than good. As with the other three prongs, there was ample credible evidence supporting the trial court's determination that the final prong of the "best interests" test had been satisfied.

The remaining contention that the Division was equitably estopped from filing its guardianship complaint because of agency delays in identifying S.H.'s biological father is totally without merit. R. 2:11-3(e)(1)(E). Suffice it to say, it was M.H. who misinformed the Division that M.B. was S.H.'s father at S.H.'s birth, and thereafter actively concealed the biological father's identity. Moreover, M.H. never explains how she was prejudiced by any delay on the Division's part. Lastly, the doctrine of equitable estoppel is "rarely invoked against a government entity," E. Orange Bd. of Educ. v. N.J. Schs. Constr. Corp., 405 N.J. Super. 132, 145 (App. Div.), certif. denied, 199 N.J. 540 (2009), and M.H. has offered no good reason for its application here.

Affirmed.


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