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New Jersey Division of Youth v. L.J.D.

October 17, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-95-10.

The opinion of the court was delivered by: Lihotz, J.A.D.




Argued September 25, 2012

Before Judges Messano, Lihotz and Ostrer.

The opinion of the court was delivered by LIHOTZ, J.A.D.

We examine a young mother's challenges to a judgment of guardianship terminating her parental rights. Defendant L.J.D. (whom we refer to as "Lela") was fourteen when her son, A.T.D. (whom we refer to as "Alvin") was born. At that time, Lela herself was a child, who was placed in the custody and care of plaintiff, the Division of Youth and Family Services, now known as the Division of Child Protection and Permanency (the Division).*fn1 As a result of Lela's custodial status, the Division assumed custody of Alvin at birth. After extending services to Lela over the ensuing years, the Division concluded she was not able to provide safe and stable care for Alvin. Consequently, the Division filed a complaint seeking guardianship and the termination of parental rights for the purpose of consenting to Alvin's adoption. Lela appeals from the judgment entered on June 27, 2011,*fn2 challenging the trial judge's findings underpinning his conclusion to terminate her parental rights.

She principally argues she never harmed Alvin and the Division failed to make reasonable efforts to provide her available services, which would have helped correct circumstances that led to Alvin's placement with a resource family.

After reviewing the record and applicable law in light of the arguments advanced on appeal, we uphold the trial court's findings that clear and convincing credible evidence satisfied the four statutory prongs necessary for termination of a parent's rights. Accordingly, the award of guardianship predicated on those findings is legally sound and must be affirmed. N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part, modified in part, 179 N.J. 264 (2004).


The unique nature of the circumstances presented requires a comprehensive recitation of the facts leading to the Division's filing for guardianship, which are not disputed.

In May 2008, Lela was placed in the care and custody of the Division following allegations of "neglect, sexual abuse, [and] physical abuse," perpetrated by her psychiatrically impaired mother and her mother's paramour. The Division had intervened the prior year and extended counseling to Lela. A June 11, 2007 psychiatric evaluation, performed by Alexander Iofin, M.D., noted Lela admitted she had "a history of fire setting," "suicidal ideation," marijuana use, occasional underage drinking, juvenile delinquent conduct, and uncontrolled anger. Lela also confirmed she suffered flashbacks of being raped and "some type of auditory, as well as visual hallucinations[.]"

Lela was sexually active and the Division learned she was pregnant. The Division continued Lela's individual counseling and added prenatal support and parenting skills instruction. The Division also took steps to secure custody of Lela's baby. When Alvin was born, the Division imposed a hold preventing Alvin's discharge from the hospital and sought a court order for his placement. On May 13, 2008, a Family Part judge found Lela could not "independently provide for herself or her son as she d[id] not have financial stability, housing, or medical insurance" and temporarily awarded the Division custody, care and supervision of Alvin. Lela lived with her adult sister and Alvin was placed in a foster home pending the Division's identification of a joint placement for Lela and Alvin. In preparation for this placement, Lela and Alvin enjoyed weekly visitation and later were permitted to spend weekends together in the home of and supervised by Lela's sister.

In July 2008, Lela and Alvin were placed in the Union Industrial Home Family Partners "Mommy & Me" program (UIH), a residential home for teen mothers and their babies. Lela had completed a psychological evaluation and was directed to engage in individual counseling. The weekend visits supervised by Lela's sister continued with the added assistance of a home health care aid to instruct Lela on the safe and necessary care of her son.

On October 1, 2008, UIH terminated Lela's program participation as a result of her "defiant, non-compliant behavior and her willingness to leave the program[.]" While some of the identified issues were likely the result of Lela's inexperience and uncertainty in mothering (e.g., a difficulty in administering medication), other conduct, such as "[r]efusing to listen to staff's directions[,]" "crank[ing] up her radio to drown [out]" staff instructions, "verbally threaten[ing] both staff and residents," "verbally and physically aggressive [conduct toward] peers and staff[,]" and "[r]efusing to follow house rules[,]" resulted because of Lela's unwillingness to comply with the program's requirements. UIH's program director recommended Lela needed "intensive counseling" and "anger management" and concluded she was not "capable of caring for her son."

Lela returned to live with her sister. Alvin was placed with a resource family, who currently provides his care. The resource family has expressed its interest in pursuing adoption, if permitted.

The Division referred Lela to additional programs to teach her the necessities of parenting. Instruction by Babyland Family Services, Inc. and development of a comprehensive care plan by Innovative Specialists Inspirational Services, L.L.C. (ISIS) set specific skill goals for Lela through in-home therapy and group anger management counseling. Lela completed Babyland's parenting program and was cooperative with the ISIS social worker. The Division's reunification efforts continued, as it coordinated in-home therapy, visitation, life skills instruction, and intensive one-on-one parenting classes for Lela.

On May 9, 2009, Lela's sister called the Division, requesting Lela's removal from her residence. An argument had erupted between the siblings, during which Lela punched, hit, and scratched her sister, then grabbed a pair of scissors and threatened to kill her. Lela's sister called the police and the Division when Lela refused to drop the scissors. Her sister also reported Lela was "skipping school" and neglecting to take prescribed medication for bi-polar disorder. The Division discovered Lela had missed many days of school; some were to attend court hearings, but others were unexplained. On May 14, 2009, she was suspended for two days and missed the entire week after being removed from her sister's home.

Lela was placed in the Newark YMWCA shelter program and directed to undergo anger management and individual therapy. Before month's end, Lela engaged in a physical altercation with another YMWCA resident and was asked to leave. The Division placed Lela in a foster home and scheduled another psychological evaluation, this time with Dr. Leslie A. Trott, Ed.D.

Dr. Trott noted Lela was "quite psychologically distressed" and difficult to manage during the assessment. She appeared confrontational, "unruly, loud[,] and belligerent." She appeared "agitated and impulsive[,]" exhibited "violent, aggressive reactions," was "struggling and in need of help." Lela also reported experiencing hallucinations, including visions of her dead grandmother and told Dr. Trott she sees spirits. Dr. Trott diagnosed Lela as suffering from mental illness, but she refused to take medication. Based upon his evaluation, Dr. Trott concluded Lela had "good cognitive potential" but struggled "to reason right from wrong and lack[ed] the potential to cognitively compose appropriate solutions to child management challenges. Her psychological distress deteriorates her common sense, causes poor judgment and diminishes her potential to parent." He concluded "[s]he should not be visiting her infant without close supervision" and suggested she "live in a residence for teens where psychiatric services are available" and "be evaluated by a psychiatrist for medications to intervene with her hallucinations and impulsive, confrontational tendencies."

On June 7, 2009, the Division received a report from Mary

M. Gibbons, L.S.W., Lela's in-home therapist. Gibbons advised Lela's attendance had been "sporadic[,]" and she had "not made progress on the goals stipulated by the court - specifically the anger management issues and addressing the emotional issues related to her abusive past." Gibbons related a recent illustrative incident. Lela requested Gibbons give her "an honest answer" regarding what she was doing that jeopardized her reunification with Alvin. When Gibbons proceeded to do so, Lela "became very angry and told [Gibbons] to leave." Despite a brief delay, Lela would not calm down and repeated her demand for Gibbons to leave. Gibbons opined Lela's "current level of in-home services [wa]s not sufficient[,]" and "perhaps a more intensive day treatment program where [Lela] might receive psychiatric treatment as well as potential group and/or individual therapy would more adequately and appropriately assist her[.]"

Other information weighed against reunification of mother and son. A June 2009 visitation report from Children's Aid and Family Services, Inc. (CAFS), the agency supervising Lela's visits with Alvin and responsible for providing "hands-on parenting skills training[,]" stated Lela was making little progress as a mother, and "lack[ed] the maturity and insight to care for and parent [her] child." On July 9, 2009, Lela's resource mother telephoned the Division at 10:55 p.m. stating she had contacted the police because Lela left for summer school at 7:00 a.m. and had not returned, despite her 8:30 p.m. curfew. Lela arrived home shortly after midnight. The resource mother also revealed Lela had been "running away on and off" and was "very abrupt and nasty" with her. Based on additional reports, the Division believed Lela also had someone pretend to work for the Division, and call the resource mother to advise Lela had permission to spend time with her sister whenever she wanted.

By September 2, 2009, the court accepted the Division's proposed change in the permanency goal for Alvin: the Division intended to seek guardianship and termination of parental rights followed by Alvin's adoption. The family court judge found Lela had "not complied with . . . services[,]" had "unresolved anger issues[,]" "disrupted [the] mommy and me placement, and then her relative home placement[,]" and lacked "maturity, stable housing or income to care for her child." Lela was again scheduled for individual counseling and anger management services.

The Division investigated alternative relative placements for Alvin. His paternal grandmother and Lela's cousin were ruled out. Lela's sister did not respond to the Division's repeated inquiries, and she too was ruled out when the Division learned she was homeless. Further, the Division also worked with Alvin's father, who initially expressed interest in parenting his son, but he failed to follow through and engage necessary services and visitation.

Lela was re-evaluated by Dr. Iofin on September 6, 2009. When asked, she denied experiencing hallucinations, adamantly insisting she suffered no psychiatric symptoms and claimed she had been "playing" with Dr. Trott. Dr. Iofin rejected this explanation as "highly, highly improbable," stating Lela's response needed "to be approached as a response [of a] 'street smart' person, [who knows] such disclosures will [not] be in her best interest." Dr. Iofin diagnosed Lela with impulse control disorder, intermittent explosive disorder, opposition-defiant disorder, psychotic disorder, anxiety disorder, personality disorder, and narcissistic personality traits. He opined she was not "a reasonable candidate for reunification with her child[,]" and recommended her visits with Alvin be supervised by the Division "in a professional setting."

Although she missed her first appointment, beginning on September 9, 2009, Lela attended individual therapy focused on anger management conducted by Claire M. Forte-McRobbie, L.S.W. of Family Connections. Over the following five weeks, she attended all sessions; "present[ed] as cooperative, open, and pleasant"; "engaged actively in discussions of her problem[s]"; "actively participated in the formulation of her treatment plan"; demonstrated "good progress" in therapy; and "appear[ed] dedicated to being reunited with her son." By year's end, Lela missed a few sessions because of transportation problems, otherwise she demonstrated "some progress" in managing her anger, but continued to have "difficulty with impulse control under other circumstances, particularly in the school environment." Forte-McRobbie recommended individual therapy continue.

Lela attended individual therapy offered by Independence: A Family of Services, Inc. (IFS), which was also involved in her education. Joyce Lopez, L.C.S.W., the high school counselor, informed the Division Lela had twenty-five sessions focused on her anger and sadness given the removal of her son. Lela's motivation was to demonstrate a willingness to comply with the Division's requests and engage in a therapeutic process in anticipation of eventually reuniting with Alvin. Lopez recounted Lela's school improvement, as she exhibited no behavioral problems, had not been sent to detention, achieved perfect attendance that fall, and recently received an honor for attaining an "A" in her subjects. Lela also completed parenting skills courses and earned the relevant certificates. Lopez wrote Lela "should be commended for her determination to get her son back and for her acknowledgment that she would need help in raising him."

On January 6, 2010, the Division filed a complaint seeking guardianship of Alvin. The protective services matter was voluntarily dismissed.

At the Division's request, Rachael Ann Fite, Ph.D., performed a thorough psychological evaluation on March 8, 2010. Dr. Fite was able to eliminate the possibility of psychosis or a concern posed by past fire-starting conduct, stating it did not "appear to be currently of concern." She credited Lela's avoidance of substance abuse and acknowledged her commitment and success in school. Dr. Fite also noted Lela's improved behavior management, stating "[a]lthough not completely remediated, she has been able to substantially curb a long-term pattern of violent outbursts and physical assault of others." Dr. Fite identified Lela's modified behaviors, commitment to therapy, consistent visitation attendance, expressed love for her son, and sincere desire to be Alvin's caregiver.

However, Dr. Fite's assessment report identified several deficiencies impeding Lela's independent parenting of Alvin. Lela's statements regarding parenting were general and abstract, void of a realistic understanding of parental responsibilities. Further, when directed to discuss specific problem areas that could affect the child's safety, Lela became defensive and often minimized her responsibility, suggesting someone else was at fault. Dr. Fite noted Lela had been able to develop "a far more appropriate interaction style" but "[d]espite her obvious efforts to manage her own behavior, . . . she continues to find herself sporadically having made a significant mistake in judgment and behavior and had continued to destabilize herself in this matter." Based on her review of the visitation reports, Dr. Fite noted Lela had been unable to engage her son adequately to allow for visits to occur without strain and discomfort on the part of the child. It is of particular concern that the visitation supervisor reported that [Alvin] consistently runs from the room at the first suggestion that the visit is over. Additionally concerning is the continued need to discuss with [Lela] that she allow the two[-]year old to be the priority instead of herself during the visit.

Evaluating the testing, the clinical interview, review of prior evaluations and assessments, and information obtained from collateral communications, Dr. Fite opined Lela "has not yet managed to achieve adequate stability or parenting skills to warrant a reasonable expectation that she could safely and appropriately care for her son . . ., now or in the near future." Dr. Fite recommended the Division "consider terminating her parental rights . . . releasing [Alvin] for adoption."

Lela continued therapy with Forte-McRobbie, missing only three of twenty-six sessions over six months. Lela "responded positively to the anger management and counseling treatment" showing a "strong commitment to self-improvement[,]" and her "judgment, insight, and impulse control all appear[ed] to have shown improvement."

Recent reports by CAFS informed the Division Lela remained consistent with her visitation participation and deeply loved her son. She had continually shown obvious love and concern for her son. She showers him with affection, makes sure he is safe . . . , and is attentive in caring for his needs throughout the visit . . . . She often speaks of her plans for him once she can take him home. She tries to teach him things and seems to enjoy spending time with him. She has purchased several items including shoes and clothes and took pleasure and pride in presenting them to him.

However, she continued to exhibit deficits in parenting when the child was fussy or upset. Lela acted immaturely "with respect to being a self-less parent[,]" holding expectations of Alvin to entertain her and give her affection and attention that were beyond his developmental ability. Further, she could not consistently separate her own needs from his. Moreover, she was idealistic and failed to recognize "the reality of parenting despite [the] worker's attempts to educate her." The worker noted Lela might be able to provide adequate basic care to her son. However, the unease comes from [Lela]'s lack of understanding and knowledge of a child's physical, emotional, cognitive, and social development. Although she has taken parenting classes, this worker feels that her age and maturity level make it difficult for her to absorb much of the information. There is also concern that with the stressors inherent in everyday life and lack of familial support, [Lela] would be overwhelmed and frustrated easily, making it extremely difficult to respond appropriately when parenting her child.

These same issues surfaced in the final evaluations procured by the Division. On October 20, 2010, Mark Singer, Ed.D., was engaged to perform an evaluation of Lela's "parenting ability, mental status, and treatment needs." Also, he performed a bonding evaluation of Lela and Alvin and a bonding evaluation between Alvin and his resource parents.

Dr. Singer concluded Alvin had formed multiple attachments viewing "his caregivers and his mother as being significant parental figures in his life. The child appears, at least on an intellectual level, to recognize that he has 2, 'mommies,' and a 'daddy.'" Difficulties were observed in Lela's ability to provide structure for the child; she seemed unable to grasp his developmental abilities, for example, when he resisted her directions regarding play and affection. Dr. Singer found Alvin "may have, to some degree, distanced himself from his mother" as a result of being separated from her. Dr. Singer concluded:

While there are clearly concerns regarding [Lela]'s ability to provide an appropriate environment for her child, and while the data does clearly indicate that, within a reasonable degree of psychological certainty, [Lela] lacks the skills and resources needed to care for any child independently at this point in time, the data does also suggest that, with appropriate continued intervention, [Lela] may become a viable parenting option for her son in the foreseeable future.

Dr. Singer specifically recommended Lela be placed in a highly structured "Mommy & Me" program, to which Alvin would be transitioned with Lela under supervised care. Dr. Singer cautioned that another removal after reuniting with Lela ...

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