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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 27, 2012

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

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-118-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2012

Before Judges Fisher, Alvarez and St. John.

Defendants H.H.M. (Hank*fn2 ) and T.C.B. (Tara) appeal the February 23, 2011, Family Part judgment terminating their parental rights to M.A.M. (Mary), born October 29, 1997, and N.H.M. (Ned), born October 31, 2002, pursuant to N.J.S.A. 30:4C-15(c) and -15.1.*fn3 For the reasons that follow, we affirm as to Ned, but remand for additional proceedings as to Mary only as to Tara's parental rights.

Care, custody, and supervision of Mary and Ned was granted to the Division of Youth and Family Services (the Division) on March 18, 2009. The children first came to the Division's attention on June 10, 2006, when Hank kicked Mary in the head, resulting in the child's hospitalization. Hank entered a guilty plea to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and on December 15, 2006, was sentenced to five years probation.

During the Division's investigation, Tara reported that she and Hank had problems with domestic violence, and that she had substance abuse difficulties. She admitted the use of marijuana to her Division worker and consistently tested positive for PCP from April to June 2007, sporadically participating in substance abuse treatment. Tara was discharged from one program for nonattendance, and although she enrolled in treatment at a second facility, she refused to submit to mental health assessments or engage in mental health treatment. She did complete one substance abuse program in 2008.

On May 2, 2008, the Division investigated an allegation that Hank and Tara were using PCP in front of the children, and caring for them while under the influence. At that juncture, although Tara denied that Hank resided in her home with the children, as he was prohibited from doing so as a continued condition of her care and custody, she acknowledged that he came to the house daily, gave the family money, and brought food.

In June 2008, the Division provided rental assistance to Tara as she was two months behind in her rent and facing eviction. The Division paid the full amount directly to her landlord; however, in September Tara again requested rental assistance and was referred to the Homeless Prevention Program. The Division continued to have concerns regarding Hank's involvement with the family since Tara continued to allow him in the home, despite the fact he had failed to complete mandated services. Nonetheless, the Division closed the file in November 2008.

On March 16, 2009, the Division received a referral that Tara was caring for the children while under the influence of "angel dust" and was cashing in her food stamps in order to purchase drugs. It was also suspected that Hank was residing in the family's home despite the Division's conditions and his failure to comply with the requirements of his probation. Tara in turn was suspected of committing fraud by maintaining electric and cell phone accounts in other peoples' names.

When the Division worker met with the family as a result of the referral, Tara denied drug use, denied that Hank resided in the home, admitted she was unemployed, and denied any knowledge of Hank's performance regarding his probation conditions. When Mary agreed that her father did not live in the home, Ned responded "yes he does, stop lying." Mary reported seeing her Hank smoke "[B]lack and [M]ild [C]igars," and that after he does, he acts "crazy." Ned confirmed this. Mary also expressed fear of her father because he threatens to "beat [her] up and curses," and her mother would not protect her.

During the interview, the Division worker observed Hank in the kitchen emptying tobacco from a cigar, where an unidentified female was seated and appeared to be "staring off" into space. The home had little food and a hole in the ceiling exposing water pipes and beams. A bucket filled with water was placed beneath the hole.

The Division removed the children, with police assistance, as the parents were minimally cooperative and appeared to be under the influence. The Division worker described Hank as "not coherent, his words [] slurred, and he kept closing his eyes . . . ." Because of his conduct during the removal, Hank had to be placed in the police car. Hank initially admitted that he was residing in the home but then denied it. The children were placed in foster care.

Tara's drug use continued unabated after the placement. The Division referred her to treatment agencies on at least four occasions, and, with one exception, she either did not complete the assessment process or the treatment program. When evaluated in March 2009, Tara admitted that her last use of alcohol was March 17, 2009, and of marijuana and PCP on March 16, 2009. The March 27, 2009 drug screen revealed that she continued to use both drugs. When the Division attempted to reenroll Tara in a substance abuse program in September 2009, she failed to appear for at least one evaluation and did not comply with treatment recommendations.

Because Hank's term of probation was revoked for non-compliance with conditions, on September 25, 2009, he was sentenced to four years imprisonment. His probation violations included testing positive on twelve occasions in 2008 through early 2009 for cocaine, morphine, PCP, marijuana, or benzodiazepine. Additionally, he failed to supply proof of the completion of a drug treatment or anger management program, to secure employment, or to report to his probation officer. Hank had been previously convicted of drug distribution within 1000 feet of school property, N.J.S.A. 2C:35-7, and third-degree resisting arrest, N.J.S.A. 2C:29-2(a).

Hank was not compliant with the drug treatment offered to him through the Division. He was referred to numerous programs, which he either did not begin at all or if he did, he did not complete.

Tara had been placed on probation for three years on a conviction of fourth-degree false incrimination, N.J.S.A. 2C:28-4(a), in November 2008, before the removal of the children. On September 25, 2009, she was resentenced to 364 days of county jail time on a violation of that probation. In his statement of reasons, the judge noted that Tara had failed to remain drug-free, comply with drug treatment, or perform community service.

On April 23, 2010, Tara was convicted of fourth-degree subjecting a law enforcement officer to bodily fluid, N.J.S.A. 2C:12-13, and sentenced to 364 days concurrent. She was released in December 2010. Tara's prior criminal history includes a conviction for robbery, N.J.S.A. 2C:15-1.

The children's visitation with their parents was sporadic. This was attributable to not only their intermittent incarceration, but the parents' own failure to attend even when not in jail.

The Division provided the children with psychiatric and other supportive services once they were placed in foster care. Because Mary engaged in aggressive and threatening behavior towards Ned, commencing March 25, 2010, she was enrolled in individual counseling. Eventually, due to Mary's conduct in the home, she was removed from the placement at the foster mother's request. The foster mother wishes to only adopt Ned.

Dr. Chester Sigafoos, a licensed psychologist, completed multiple evaluations of the family at the Division's request and testified during the trial. He opined that Tara was unable to safely parent either child, diagnosing her as suffering from post-traumatic stress disorder, bipolar disorder with psychotic features, polysubstance dependence, and obsessive compulsive personality disorder and antisocial and paranoid features. Tara's prognosis was "guarded," and he concluded that she had "significant psychopathologies that will interfere with her ability to parent her children."

Dr. Sigafoos's bonding evaluation found the relationship between siblings to be unhealthy, and concluded that as a result their placement in separate homes would not be as harmful as it might be in other cases. Ned had only a "marginal" attachment to his mother while Mary's attachment to Tara was "marginal with some disorganization." Dr. Sigafoos characterized Mary's interaction with her mother as similar to that of a child with an adult relative as opposed to a parent.

Dr. Sigafoos diagnosed Hank as suffering from polysubstance dependence, impulse control disorder, generalized anxiety disorder, depressive disorder, antisocial personality disorder, obsessive compulsive disorder, and narcissistic personality traits. As a result, Hank could not effectively parent his children and insure their safety and well-being. His prognosis was "guarded to poor." As Dr. Sigafoos described it, Hank's psychological disorders made him an unsafe parent because he was "more interested in [his] concerns and welfare . . . rather than that of anybody else . . . ." In Dr. Sigafoos's view, Hank simply "cannot" parent. During the parent-child bonding assessment, the children "really didn't want to have any interaction with" their father. The children actually ended the evaluation session early, leading Dr. Sigafoos to opine there was no bond at all between them and their father.

In contrast, Dr. Sigafoos found that Ned and his foster mother shared a "very secure healthy bond." If Ned were to be removed from her care, he would experience "serious and enduring harm," a harm neither parent could ameliorate. As we have noted, he also opined that a placement separate from Mary would most likely be beneficial.

Despite Mary's expressed desire to be with her mother, Dr. Sigafoos diagnosed the child as having her own "developing character pathologies," making placement with her mother inappropriate. He suggested that she be cared for in a therapeutic setting designed to address her special circumstances. In his opinion, Tara was unable to meet Mary's psychological needs.

The judge rendered his findings from the bench at the conclusion of the trial. He noted, among other things, that Tara was incarcerated for shoplifting from January 29, 2010, to November 19, 2010. The judge briefly reviewed the parties' history of substance abuse, the assault upon Mary, the fact Tara did not appear to be able to protect the children from Hank, and that she seemed unable to remain law-abiding. He also reviewed other expert reports corroborating Dr. Sigafoos's diagnoses of the parents. The judge relied upon Dr. Sigafoos's opinion that although Mary may want to see her mother, the child would be more damaged by a continuing relationship than a termination. The judge quoted Dr. Sigafoos's conclusion that a continuing relationship between Mary and her mother would "sabotage any effort to help [Mary] mature." The court found by clear and convincing evidence that the Division had met the four prongs of the statutory test, see N.J.S.A. 30:4C-15.1(a), and deferred the request by a paternal aunt to take custody of Mary to a later time.

Significantly, the appeal brief filed on behalf of the minors states without record support that Mary now wishes to be adopted by the foster parents with whom she was placed after the trial. They wish to adopt her. This assertion is based on information not presented to the trial judge and is included in the brief submitted on appeal in violation of Rule 2:5-4. Nonetheless, we will address the issue.

On appeal, Hank asserts the court erred with regard to the following:

POINT I - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE STATUTORY REQUIREMENTS OF N.J.S.A. 30:4C-15 AND 30:4C-15.1 WERE MET POINT II - THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT [MARY]'S OR [NED]'S SAFETY, HEALTH OR DEVELOPMENT HAS BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP UNDER THE FIRST PRONG POINT III - THERE WAS INSUFFICIENT EVIDENCE UNDER THE SECOND PRONG TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT [H.H.M.] WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM OR THAT [] THE DELAY OF PERMANENT PLACEMENT WILL ADD TO HARM POINT IV - D.Y.F.S. FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT IT MADE REASONABLE EFFORTS TO HELP [H.H.M.] CORRECT THE CIRCUMSTANCES [THAT] LED TO REMOVAL AND THE COURT FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF HIS PARENTAL RIGHTS POINT V - THERE WAS INSUFFICIENT EVIDENCE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF [H.H.M.'S] PARENTAL RIGHTS WILL NOT DO MORE HARM THAN GOOD, UNDER THE FOURTH PRONG POINT VI - PRONG FOUR HAS NOT BEEN MET DUE TO THE FAILURE OF COMPREHENSIVE, OBJECTIVE AND INFORMED EVALUATION BY THE DYFS EXPERT DR. SIGAFOOS In turn, Tara asserts as error the following:

Point I - There Was Insufficient Evidence To Prove By Clear And Convincing Evidence That The Statutory Requirements Of N.J.S.A. 30:4C-15 And 30:4C-15.1 Were Met Point I(A) - There Was Insufficient Evidence Under The Second Prong To Prove By Clear And Convincing Evidence That T.C.B. Was Unwilling Or Unable To Eliminate The Harm Facing Either [Mary]

Or [Ned] Or Is Unable Or Unwilling To Provide A Safe And Stable Home For Her, And The Delay Of Permanent Placement Will Add To The Harm Point I(B) - There Was Insufficient Evidence To Prove By Clear And Convincing Evidence That Termination Of T.C.B.'s Parental Rights Will Not Do More Harm Than Good, Under The Fourth Prong Point II - Defendant Was Denied The Right To Effective Assistance Of Counsel When Counsel Failed To Use Or Call An Expert To ReEvaluate The Bonding Between [Mary] And The Foster Parents After Their Relationship Deteriorated Parental rights can be terminated only when the State proves 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 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. [N.J.S.A. 30:4C-15.1(a).]

Our task is to determine whether the trial court's decision was "based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). The scope of review is limited, and the trial court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice[.]'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). In other words, "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'" N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super 46, 78 (App. Div. 2003) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)), aff'd and remanded, 179 N.J. 264 (2004), certif. denied, 186 N.J. 603 (2006). Consideration of the four prongs of the statutory test must be given as a whole. See In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

"Clear and convincing" evidence is evidence which results in a "firm belief or conviction as to the truth of the allegations sought to be established." Aiello v. Knoll Golf Club, 64 N.J. Super. 156, 162 (App. Div. 1960). We are satisfied after our review of the record that the Division met the statutory test by such evidence despite Hank and Tara's attacks as to each prong as to Ned. We also conclude the Division established the requisite proofs as to Hank and Mary, but not as to Tara and Mary.

I

We first address Hank's claims of error. "[C]hildren have an essential and overriding interest in stability and [a permanent home]." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). Yet in this case, the father's criminal conduct meant that during substantial periods of time he was incarcerated and inaccessible, making stability and permanency impossible. Hank did not engage in substance abuse treatment, either in order to progress towards resuming custody of his children or to avoid the incarceration he knew would inevitably follow violations of his conditions of probation. The court's factfinding was arguably too abbreviated on this score, but the judge certainly covered the most salient facts with regard to Hank.

Dr. Sigafoos saw no connection whatsoever between Hank and the children; in fact, the children terminated the bonding evaluation early. Hank had no ability to remain substance- or arrest-free during the crucial time his children were in placement. Hank seriously injured Mary and was involved in domestic violence with Tara. Given this record, the Division readily carried its burden to meet the four prongs of the statutory test as a whole, by clear and convincing evidence. See K.H.O., supra, 161 N.J. at 348. Hence Hank's assertions of error lack merit.

Clearly the children's safety, health, and development will be endangered if the parental relationship continues. There was ample evidence that Hank was either unwilling or unable to eliminate the harm he poses to his children, established not only by his failure to engage in - much less complete - any of the treatment options offered to him by the Division but by his failure to successfully complete probation. Delay of permanent placement can only add to the harm done to these children given Hank's diagnosis and his inability to remain drug-free, which poses a threat to their safety and welfare.

In exploring the possibility of kinship legal guardianship, the Division explored the possibility of family members suggested by Hank; the explorations did not prove fruitful. Termination of Hank's parental rights will therefore not do more harm than good, due to the absence of any bond between him and his children, and his unavailability as a parent because of his ongoing substance abuse and other life challenges.

II

a.

Tara asserts that the Division did not establish by clear and convincing evidence that: (a) she either caused harm to the children or was unwilling or unable to eliminate any harm facing the children; (b) she was unable or unwilling to provide a safe and stable home for at least Mary; or (c) the delay of a permanent placement for the children will add to the harm.

Tara's drug use was ongoing during the pendency of these proceedings. It was not a problem that she was able or willing to address, just as she was unable or unwilling to address her psychiatric issues. It was Hank's conduct that first brought Tara to the attention of the Division, and despite Mary being hospitalized because of her father's assault, Tara was unable or unwilling to bar him from her home. Moreover, although the children, according to Dr. Sigafoos, had some connection with her, the bond was not equivalent to a parental bond. It was a tenuous connection, similar to the tie that children have with family members such as an aunt. Even when not incarcerated, Tara did not regularly maintain contact with her children. Tara made little effort to take steps towards becoming a plausible parent.

Additionally, as Dr. Sigafoos stated, Mary's expressed desire to reside with her mother was not in the child's best interest, because of her own emerging mental health needs and her mother's mental health and substance abuse issues. But at the time of trial, no permanent home appeared to be available for Mary, weakening the Division's case as to the fourth prong of the statute.

Which brings us to the issue of Mary's current placement. It is improper for material to be presented on appeal not included in the record of proceedings resulting in the judgment from which appeal is taken. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007); R. 2:5-4. Clearly, counsel was required to convey the crucial information that a family was available to adopt Mary. The proper step, however, would have been the filing of a motion for a remand to supplement the record.

In this unique situation, because of the urgent nature of the interests involved, we ourselves remand the matter as to Tara and Mary to enable the Division to present proof as to the status of the prospective adoptive home. Only in this fashion will the trial court be able to fairly address the fourth prong of the statutory test - whether termination would do more harm than good.

In sum, the Division established the statutory factors by clear and convincing evidence as to Tara and Ned. As to Mary, however, the fourth prong, that the termination of parental rights will not do more harm than good, was not established by clear and convincing evidence. See P.P., supra, 180 N.J. at 511.

b.

Tara also asserts that she was denied the right to effective assistance of counsel because her attorney failed to retain the services of an expert to assess the connection between Mary and her first foster family. It is well-established that because the termination of parental rights "implicates a fundamental liberty interest[,]" the effective assistance of counsel is required. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305 (2007). To test the effectiveness of an attorney's performance, we employ the Strickland standard, which requires a party to establish that counsel's performance was so deficient that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment and that the deficient performance prejudiced the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). But we conclude the issue is moot because of the remand necessitated by the change in circumstances. Thus we do not address the point further.

III

As we have previously said, "[a] child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004).

"A final separation from a biological parent is a harm in itself." In re Guardianship of J.E.D., 217 N.J. Super. 1, 15 (App. Div. 1987), certif. denied, 111 N.J. 637 (1988). It is always a grave loss to a child to lose biological parents. It is for that reason "doubts are to be resolved against" disruption of the relationship. Id. at 16. But permanence, stability, and support for emotional growth are also crucial to a child's upbringing and must be taken into consideration. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986).

The Division readily established by clear and convincing evidence that Hank could not provide either of his children, Mary or Ned, with the safe and stable home to which they are entitled. Hank poses so great a threat to the well-being of his children that even as to Mary, termination will not do more harm than good.

As to Tara, however, we remand the matter for additional testimony to be taken as to the fourth prong, in light of the unsupported claim that Mary is now in a foster home that wishes to adopt, for exploration of whether adoption is indeed an option for the child and to further address the slight bond between mother and child. After a hearing on the issue, the court shall revisit the fourth prong, whether termination of parental rights will not do more harm than good.

Affirmed in all respects except we remand for further proceedings regarding Tara's parental rights to Mary so that there may be an exploration into that child's prospects for adoption. We do not retain jurisdiction.


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