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


October 29, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0081-10.

Per curiam.



Submitted October 1, 2012

Before Judges Parrillo, Fasciale and Maven.

Defendant, T.N.C., appeals from an order of the Family Part terminating her parental rights to all five of her children: T.T.C., born April 26, 1999; S.S.R.B., born March 28, 2003;

S.J.T.B., born November 1, 2004; S.S.L.B., born April 10, 2006; and K.S.L.B., born January 4, 2008.*fn2 We affirm.

By way of background, the Division of Child Protection and Permanency (Division) first became involved with defendant in October 1999, shortly after the birth of her first child, T.T.C. Although the allegation that defendant was unable to care for T.T.C. was deemed unfounded, another referral on February 7, 2000, resulted in T.T.C.'s placement in foster care. In 2002, defendant's sister, Alice, assumed legal and physical custody of T.T.C.

Between October 2005 and April 2008, the Division continued to receive numerous referrals concerning defendant. Although these referrals were ultimately determined to be unfounded, the Division opened the case for supervision "due to [defendant's] having a learning disability [sic]," and commenced the provision of services, including, among other things, homemaker services (from March 6, 2006 through October 27, 2006); a parent aide; a home health aide; and daycare and other assistance for the children. Apparently, the parent aide services the Division provided were discontinued in April 2007 "[d]ue to the lack of cooperation by [defendant] in making herself available" for the aide's visits.

On September 24, 2007, S.S.R.B.'s preschool reported that an unknown male had dropped the child off at the wrong school. Although the neglect allegations were deemed unfounded, Division records indicate that an investigator went to defendant's home to discuss the allegations, and reported that the children lacked beds, that the home was unclean and that there was insufficient food. The report also indicated that defendant was five-months pregnant with K.S.L.B., but had only recently begun receiving prenatal care.

On September 27, 2007, the Division prepared a case plan requiring defendant to provide for the children's basic needs, which defendant signed shortly after K.S.L.B.'s birth on January 4, 2008, agreeing to meet her children's basic needs with the help of her cousin, L.K. Each of the children save S.J.T.B., however, has specialized needs. T.T.C. suffers from multiple delays, behavioral problems and ADHD, and occasionally requires medication. S.S.R.B. has speech delays and hyperactivity issues that require medication. He is also classified as mentally handicapped. S.S.L.B. was "pre-school handicapped," and suffered from speech and developmental delays. K.S.L.B. suffers from Type 1 diabetes and requires insulin before every meal.

The Division received additional referrals on January 10, 2008, and February 11, 2008. Although neglect was not found, the Division again began providing defendant weekly homemaker services, effective January 25, 2008.

There was an incident on April 29, 2008, wherein defendant experienced what was later professionally diagnosed as a "psychotic break." Defendant had taken K.S.L.B., who was then three-months old, to the emergency room of the local hospital because the infant was coughing, vomiting and not eating well. When the doctor told defendant that her child had a small cold, defendant insisted the infant be admitted for observation.

Defendant refused to leave, and allegedly wandered around the hospital speaking incoherently. A Division worker met defendant at the hospital and transported her and K.S.L.B. back home. Although the Division representative recommended that defendant submit to a psychological evaluation and attend parenting classes, the psychological evaluation would not actually occur until July 2008.

Meanwhile, Division involvement with the family escalated in May 2008. During a routine visit, defendant's cousin informed Division caseworker, Nicole Davis, that S.B. was abusing defendant, and that defendant at times used her children as shields. Defendant admitted that S.B. was abusing her, and asked the Division to place her in a shelter.

A series of shelter placements followed, each relatively shortened either because of defendant's request, her inability to control her children, or a previous negative experience. During this time, the Division attempted, but was unable, to provide defendant with parenting assistance.

On May 29, 2008, the Division filed a neglect complaint for the care of all the children except T.T.C., who at the time was still residing with defendant's sister, Alice. The court granted the application and appointed a law guardian to represent the children.

Meanwhile, the Division contacted the Newark Housing Authority (NHA) to arrange an emergency transfer, and provided defendant funds to pay back rent that she owed to the NHA. Unfortunately, suitable housing was not immediately available. Therefore, on June 4, 2008, defendant arranged to stay with her sister Alice. During this time, defendant was not provided a parent aide because Alice did not want strangers coming into her home. However, the Division did provide defendant a bus card, parenting classes and day care for the children.

On July 10, 2008, Dr. Mark Singer performed a psychological evaluation of defendant. Based on tests administered, Dr. Singer concluded that defendant was a "significantly intellectually limited individual" who was "functioning within the below average/lower extreme of IQ, as measured by standardized testing." He recommended that the Division assume custody of the children:

[Defendant] has requested that her children be placed by [the Division] and the data support[s] such a request. The above recommendations, if followed, are anticipated to protect [defendant's] children as she pursues steps which are aimed at increasing her ability to parent. The data, however, suggests that [defendant's] cognitive limitations are likely to continue to limit her ability to learn new parenting techniques and to incorporate these techniques into her parenting style.

On July 29, 2008, the Division filed a guardianship complaint for custody of the four children, which was amended on October 15, 2008, to include T.T.C., when Alice advised she could no longer care for him. Based on Dr. Singer's evaluation and defendant's unstable housing situation, the court granted the request. In addition to weekly visitation, the court ordered defendant to undergo evaluations, therapy and domestic violence counseling.

Pending the return date, defendant underwent a psychiatric evaluation by Dr. Alexander Iofin, who reported that defendant was in the moderate range of mental retardation, and diagnosed her with depressive disorder. He recommended that the Division refer her to the Division of Developmental Disabilities (DDD), and predicted that defendant would require "lifelong support from state organizations [to] compensate for her significant disabilities that stem primarily from cognitive limitations." As to her ability to parent, Dr. Iofin concluded:

On her own she is not capable to take care of any minor child. When and if she is placed in an appropriate supervised setting, she perhaps could be capable to take care of some of her children who have no cognitive limitations of their own. It will be highly unlikely that she will be able to take care of four children, even under supervision, as the best case scenario. . . .

I want to reiterate again that she is not currently suitable for independent handling of any minor child. However, I see no contraindication for her to be with the children under appropriate supervision in supervised visitations that perhaps could be liberal in nature because I do not consider her as presenting any danger for the children in regard to inflicting intentional injuries to them.

On the return date of the court's October 15, 2008 order to show cause, defendant stipulated that she had "no housing and [was] in need of services." On that date, the court also conducted a compliance review, and ordered that custody of defendant's children continue under the Division, with weekly supervised visits for defendant. As part of its review, the court further ordered the Division to, among other things, refer defendant to DDD and to provide her "visits in a therapeutic setting with a trained professional who can provide her with guidance."

Thereafter, on December 15, 2008, Dr. Andrew Brown conducted a neuropsychological evaluation of defendant and reported that defendant had mild mental retardation; that the results of her assessments were "overwhelming in depicting [defendant] as mentally inflexible"; and that her "ability to engage in effective and independent problem solving [was] considerably limited . . . ." Dr. Brown concluded:

[Defendant] is not able to parent [her] children independent of supervision subsequent to the extent and pervasive nature of neuropsychological deficits. While participation in parenting skills is not discouraged it is within a reasonable degree of psychological certainty that the magnitude of [defendant's] deficits will overwhelm [the] benefits that may be derived from a course in parenting skills. Furthermore [defendant's] neuropsychological deficits are permanent and will not be lessened or altered with efforts aimed at remediation.

This report may be used to designate [defendant] as a mentally disabled adult and furthermore she should be considered for placement under the Adults with Disabilities Act and subsequent . . . DDD services.

On April 16, 2009, defendant underwent another psychiatric evaluation, this time conducted by Dr. Arnaldo Apolito, who reported that defendant had resumed a relationship with S.B. Consistent with the other medical experts that preceded him, Dr. Apolito found that defendant had "below normal intelligence" and that she would "most probably experience significant difficulty to take [sic] care of her children as a single mother." However, in Dr. Apolito's view, reunification could be appropriate if S.B. "show[ed] appropriate motivation to rehabilitate" himself.

On June 11, 2009, the court held a permanency hearing and compliance review, and found that it was not safe to return the children to defendant because she could not parent independently and because S.B. had been non-compliant throughout the proceedings. The court extended the reunification goal by ninety days, and ordered the Division to develop a "social service/family based plan for reunification."

Consequently, the Division asked Dr. Singer to perform a follow-up evaluation of defendant, which he conducted on August 13, 2009. Based thereon, Dr. Singer concluded that although defendant had managed to create some stability, her limitations made her unlikely to be able to parent independently. Dr. Singer recommended that the Division refer defendant to DDD for appropriate services, and concluded: "the data does suggest that [defendant] may function as a caregiver to her children with appropriate supervision."

At the next permanency hearing on September 10, 2009, the court, citing defendant's inability to parent independently and S.B.'s ongoing failure to cooperate, approved the Division's plan to terminate defendant's parental rights and free the children for adoption. Consequently, on December 10, 2009, the Division filed a complaint for guardianship, and on December 16, 2009, the court terminated the neglect proceedings.

At trial, the Division presented Dr. Elayne Weitz, who had performed a psychological assessment of defendant and multiple bonding evaluations. As to the former, Dr. Weitz concluded that it would be "rare" for a person with defendant's cognitive deficits to parent independently, even if her children did not have specialized needs, and predicted defendant could "only go so far" because of her intellectual limitations. She explained:

[N]o matter how many services she attends, no matter how many classes she sits in, she's only going to benefit to a certain degree. And the other part of that is, she has had a lot of services and, yet, I and others are still saying that she's not able to parent.

Dr. Weitz rejected both the possibility of providing defendant with a twenty-four-hour nurse's aide and the feasibility of coparenting, asserting as to the latter:

The idea of co-parenting indicates that two people share in the caretaking responsibilities and that also means that they're not necessarily both present at the same time. I don't believe that [defendant] should have any unsupervised time with the child, and it's impossible and unrealistic to expect that there's going to be one person who is going to spend 24 hours, 7 days a week with that kind of commitment from now until the youngest child reaches 18.

From her bonding evaluations, conducted when the children had been out of defendant's care for almost two years, Dr. Weitz concluded that defendant did not have a true bond with any of her children and that she simply lacked the skills to form a meaningful bond. Concerning the children's relationships with their respective foster parents, S.S.R.B. and K.S.L.B. were firmly bonded to their caretakers while it was too early to determine whether S.S.L.B., who had only been in her foster home for five months at that time, had developed an enduring bond.*fn3

Also, neither T.T.C. nor S.J.T.B. had yet established a bond with their current caretakers.*fn4 Dr. Weitz ultimately concluded that termination of defendant's parental rights would not do more harm than good, and stressed the importance of providing the children with permanency.

Defendant's expert, Dr. Richard Klein, agreed with Dr. Weitz that as of trial, defendant's cognitive deficits rendered her unfit to independently parent her children. However, he differed from Dr. Weitz as to defendant's "prognosis for parenting," inasmuch as he opined that defendant could potentially become a fit parent in the future, although he was unable to pinpoint any particular time. Dr. Klein also reported that although defendant suffered from mild retardation, she was high-functioning, compliant and motivated, and that individuals with more serious cognitive handicaps than defendant were capable of parenting. In contrast to Dr. Weitz, Dr. Klein opined that the children were bonded to defendant and to each other, and that severing the ties would traumatize them. According to Dr. Klein, maintaining the parental relationship was particularly critical for T.T.C. and S.J.T.B., the latter of whom had already endured multiple placements. At the same time, Dr. Klein conceded that the children had adapted to the separation and were generally doing well in their placements. Indeed, he explained that his opposition to terminating defendant's rights was not that he objected to the children's current placements, but, rather, that he believed kinship legal guardianship (KLG) would better serve the children's interests. Like Dr. Weitz, Dr. Klein rejected the possibility of a coparenting arrangement, noting the unavailability of a suitable co-parent.

Defendant testified on her own behalf, and expressed her desire to be reunited with her children. She acknowledged that she needed help, but felt that she could eventually parent independently.

At the close of evidence, the judge rendered an oral decision terminating defendant's parental rights to all five children, which was memorialized in a judgment of guardianship, dated March 29, 2011.

On appeal, defendant raises the following issues:

I. The Decision to Terminate T.N.C.'s Parental Rights was Not Supported by Adequate, Substantial and Credible Evidence.

A. Prong Three: The Trial Court Erred in Finding that [the Division] Had Demonstrated, By Clear And Convincing Evidence, That Reasonable Efforts Were Made to Provide the Mother with Appropriate Services.

B. Prong Four: The Trial Court Erred in Finding That [the Division] Had Demonstrated, By Clear And Convincing Evidence, That Termination of T.N.C.'s Parental Rights Will Not Do More Harm Than Good to her Children.

N.J.S.A. 30:4C-15.1(a) authorizes the termination of parental rights if the Division clearly and convincingly establishes:

(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 division 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.

While defendant limits her challenge on appeal to the third and fourth prongs only, namely that the Division did not make reasonable efforts to ensure reunification and that termination would cause more harm to the children than good, the statutory factors of the "best interests" test are "neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (internal quotation marks omitted). We, therefore, consider the entirety of considerations in assessing defendant's challenge to the Family Part judge's decision that termination is necessary to ensure the children's best interests.

As to the first prong, the court found that while defendant never physically abused or neglected her children, her inability to parent them independently presented a serious risk of harm. The court noted that the record contained "overwhelming evidence" that defendant's cognitive limitations would always prevent her from independently parenting her children, including Dr. Klein's acknowledgment that defendant would require full-time assistance. Of course, the special needs of the children exacerbated the situation, but in the court's view, even if they had been healthy, defendant "would not be able to parent, because she [did] not understand the various tasks that go into parenting a child." The court recognized that defendant wanted to care for her children, but noted: "[t]he problem is that [defendant] just doesn't have the ability to do so, through no fault of her own."

On the second prong, whether defendant is capable of eliminating the harm, the court found that while defendant "overwhelmingly complied" with the services provided by the Division, defendant was unable to become fit because of her intellectual impairments, and that her cognitive deficiencies would always prevent her from benefiting from any available services. In support, the court noted that despite having completed parenting classes and therapy, defendant was not "any better equipped to parent her children than when they were previously in her care." Furthermore, the court held that the rigorous 24/7 parenting assistance that defendant needed would unreasonably burden the Division and place defendant's interests ahead of the children's.

Concerning prong three, whether the Division made reasonable efforts to ensure reunification, the court listed the services that the Division provided defendant over the course of eleven years, and concluded that the agency satisfied its statutory obligations. The court also rejected Dr. Klein's recommendation of KLG over termination, finding that KLG would deprive the children of permanency and relegate them to a constant state of uncertainty.

In assessing the last factor - whether termination would do more harm than good - the court examined the children's existing placements and the conflicting bonding evaluations prepared by Drs. Weitz and Klein. The court relied heavily on Dr. Weitz's expert opinion and determined that the children did not have strong bonds with defendant, and that removing them from their current placements would be detrimental. The court declined to give significant weight to Dr. Klein's opinion, finding that he "seemed so emotional and compassionate about the circumstances of [this] case that his opinion seemed to be colored."

We review whether a family court decision terminating parental rights is "supported by adequate, substantial and credible evidence on the record." M.M., supra, 189 N.J. at 278- 79 (2007) (internal quotation marks omitted). "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) (internal quotation marks omitted). In this regard, we "accord deference to family court factfindings" because of "the family courts' 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).

Governed by this standard, we find the trial court's termination decision supported by sufficient credible evidence in the record and, therefore, affirm substantially for the reasons stated in Judge Furnari's oral decision of March 25, 2011. We add only the following comments.

"The absence of physical abuse or neglect is not conclusive on the issue of custody. The trial court must consider the potential for serious psychological damage to the child inferential from the proofs." In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194 (App. Div. 1977). Here, all the experts, including defendant's, agreed that defendant was presently unable to independently parent her children. Defendant, in fact, herself conceded as much at trial.

"Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999). Because defendant's condition negatively affects her present ability to meet her children's needs, the first prong has been met. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) ("Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship.").

In addition to examining a parent's ability to eliminate harm, the second factor assesses "the potential future harm caused by a 'delay of permanent placement.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 244 (App. Div. 2010) (quoting N.J.S.A. 30:4C-15.1(a)(2)), certif. denied sub nom. N.J. Dep't of Children & Family v. K.G., 205 N.J. 519 (2011). Here, both Drs. Weitz and Klein agreed that the children needed permanency and that defendant would require significant help to be able to parent. However, the Division is not required to provide the intense supervision that defendant would need to parent her children. See N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 437, 443 (App. Div. 2001) (finding termination appropriate where a parent with psychiatric disability would require full-time supervision), certif. denied, 171 N.J. 44 (2002); In re Guardianship of D.N., 190 N.J. Super. 648, 654 (J. & D.R. Ct. 1983) (holding that the Division did not have to provide the twenty-four-hour supervision that would have been needed to help mentally disabled individuals parent their child). Moreover, although the DDD offered specialized programs for mentally disabled parents and their children, those services were limited. As of trial, defendant remained on the waiting list and had not yet even been evaluated for the program. Based on the record evidence that defendant is not likely to become fit in the foreseeable future as well as the children's need for permanency, we conclude the second factor was met.

The third prong requires the Division to prove that it 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." N.J.S.A. 30:4C-15.1(a)(3). "Reasonable efforts" refers to attempts "by an agency authorized by the division to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." N.J.S.A. 30:4C-15.1(c). Such efforts include but are not limited to:

(1) consultation and cooperation with the parent in developing a plan for appropriate services;

(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;

(3) informing the parent at appropriate intervals of the child's progress, development and health; and

(4) facilitating appropriate visitation. [Ibid.]

The record here amply demonstrates the plethora of services and support the Division provided defendant and her family over many years, including most notably parenting training, in-home assistance and evaluations. Defendant, on the other hand, has failed to identify any additional services the Division could have provided that would have been more effective. Defendant also has not identified any realistic alternative to termination. KLG was rejected because adoption was available and, in any event, no kin had been identified who had agreed to that arrangement. By comparison, the record demonstrates that all of the children are currently in homes that are ready to adopt them and are able to meet their specialized needs.

As to the fourth prong, the record also reveals that removing these children from their foster homes would inflict a serious harm that defendant could not redress. Conversely, according to the Division's expert proofs, because of the lack of bonding, termination of defendant's parental rights will not do more harm than good. In any event, the Division is not required to show that termination will not visit any harm on the child. K.H.O., supra, 161 N.J. at 355. Instead, determining what is in the child's best interests in guardianship proceedings is more realistically a matter of identifying "'the least harmful or least detrimental alternative.'" N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986) (citations omitted), superseded by statute on other grounds, N.J.S.A. 9:3-46, as recognized in In re Adoption of Children by G.P.B., 161 N.J. 396, 405 (1999). As with the other three prongs, there was ample credible evidence supporting the trial court's finding that the final prong of the "best interests" test has been satisfied. Suffice it to say, the termination decision provided permanence and ensured that the impacted children do not "languish indefinitely in foster care while [the] birth parent attempts to correct the conditions that resulted in an out-of-home placement." N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 209 (App. Div.), certif. denied, 192 N.J. 293 (2007).


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