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New Jersey Division of Youth and Family Services v. K.S.C

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 14, 2012

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF-RESPONDENT,
v.
K.S.C., DEFENDANT-APPELLANT. IN THE MATTER OF THE GUARDIANSHIP OF J.L.C., A MINOR.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-26-10.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 5, 2012

Before Judges Parrillo and Maven.

Defendant Karen*fn1 appeals from a judgment of the Family Part terminating her parental rights to her child, Jane, born in May 2004, and granting guardianship of the child to plaintiff Division of Youth and Family Services (Division).*fn2 On appeal, defendant asserts that the Division failed to prove the four prongs of the best interests test by clear and convincing evidence. Because the trial court's decision is adequately supported by substantial credible evidence in the record, we affirm.

These are the relevant facts adduced from the record. This family first came to the attention of the Division in May 2007, when they received a referral reporting that three-year-old Jane was unconscious due to ingesting a pill she had picked up off the floor. At that time, the child lived with her parents, grandmother and uncle. After an investigation in September 2007, the Division did not substantiate any abuse or neglect; however, the agency kept the case open for services regarding the child's developmental needs. The Division noted that the child could not speak well, suffered from hearing problems, was not toilet trained and still used a pacifier.

In March 2008, the Division received a referral from defendant's physician, Dr. Stephen Padnes, who out of concern for Jane reported that defendant may be addicted to prescribed medications, selling her medications, and possibly "doctor and prescription shopping." Dr. Padnes informed the Division that he contacted her insurance company requesting that she be limited to obtaining medications from one doctor and one pharmacy. Although defendant and her husband denied the allegations, the Division opened a case in order to provide the family with services.

As part of the initial review, defendant completed a substance abuse evaluation with the Center for Family Services (CFS) in March 2008 wherein she disclosed that she was taking forty milligrams of Oxycontin three times daily, twenty milligrams of Oxycontin three times a day, ten milligrams of Ambien each day, one milligram of Klonopin four times daily, thirty milligrams of Roxicet as needed and Ibuprofen.*fn3 The results of multiple drug tests revealed that defendant tested positive for various drugs, including opiates and benzodiazepines.*fn4 Based on these results, CFS diagnosed defendant with Opioid Dependence and recommended defendant enter a rehabilitation facility. She, however, refused treatment that day and again in June 2008.

Also in June 2008, Division consultant, Dr. Mariann Pokalo, Ph.D., conducted a psychological evaluation and recommended that defendant participate in a parenting course and begin a pain management program. Another consulting psychiatrist, Edward Baruch, M.D., conducted an evaluation and diagnosed defendant with Cognitive Deficits induced by Opiate Abuse. Dr. Baruch recommended residential substance abuse treatment. Dr. Baruch also stated that defendant could not care for Jane at that time and recommended the child's removal.*fn5

On several occasions, the Division recommended to Karen that the child be evaluated to assess the child's speech deficiencies. After assuring that she would take Jane, defendant failed to appear for the appointment.

In July 2008, defendant was referred to Dr. Frederick L. Cole, Jr., an orthopedic physician, to assess the extent of defendant's back injury and her need for medication. Dr. Cole reviewed an MRI from May 2003 taken shortly after her injury and concluded that there was no evidence of extensive herniation, degenerative changes or chronic instability in the lumbar spine to warrant the type of medication she was taking. Although a 2008 MRI showed a possible bulging of the spinal disk, Dr. Cole opined that the amount of pain medication defendant was taking was not warranted based on her physical condition. In his October 2008 report to the Division, he stated that given his clinical examination, including the review of her MRIs, he declined to fill Karen's request for additional pain medication. Rather, he referred her to a pain management center.

Based upon the consultants' concerns regarding prescription drug usage, Karen's refusal to attend a substance abuse treatment program, and her failure to attend to the child's needs, the Division filed a complaint requesting care and supervision of Jane on October 28, 2008.*fn6 On February 9, 2009, defendant stipulated to neglect, as defined in Title Nine,*fn7 acknowledging that her medication needed to be managed so that she could properly parent her child. The trial court ordered Karen to attend medically managed detoxification followed by residential substance abuse treatment. She was also ordered to attend parenting classes, psychiatric treatment and medication monitoring.

When doctors informed Karen that they would no longer prescribe her narcotics, she began treatment with Dr. Greg Taylor of Cooper Medical Center in December 2008. In February 2009, Dr. Taylor reported to the Division that he modified Karen's medications to sixty milligrams of Oxycontin for back pain, Cyclopenzaprine, a muscle relaxant, and Klonopin, for anxiety. By July 2009, Dr. Taylor reported that her pain medication was reduced from sixty milligrams of Oxycontin twice a day to forty milligrams twice a day. He further opined that Karen had an objective medical reason for her complaint of pain; has taken the prescribed medication appropriately; and the prescribed medication did not render her unable to parent Jane nor placed the child at risk. In November 2009, Dr. Taylor wrote another letter confirming the medication level and reporting that Karen was stable on her current medication and compliant with her scheduled office visits.

Independent of her treatment with Dr. Taylor, Karen was referred to psychological evaluations. In September 2009, she met with psychologist, Meryl E. Udell, PhD., who was asked by the Division to give on overall assessment of Karen and identify any unmet service needs. Dr. Udell, ultimately recommended that: (a) Jane not be returned to Karen because Karen was not aware of her daughter's developmental needs; (b) Karen should participate in counseling to address her unsupported belief that she has a broken back; (c) Karen should attend substance abuse and pain management treatment and receive ongoing drug testing; and (d) supervised visitation should continue. Future evaluations completed by other clinicians would be largely consistent with these recommendations.

Regarding placement, Susanna Dias, Division caseworker, evaluated the family extensively. She made three separate placements. The initial placement, from October 2008 until May 2009, ended when that foster parent reported that she could no longer control Jane's behavioral problems. A second placement was made from May 2009 to July 2010 with the child's paternal aunt. The last placement began in July 2010 with a family who expressed a desire to adopt Jane.

On October 21, 2009, the trial court approved a permanency plan of termination of parental rights followed by adoption, concurrent with reunification pending final review of contested evidence. On January 28, 2010, the Division filed a complaint for guardianship of Jane. On that same date, pursuant to the permanency plan, the court ordered the Division to identify an expert to review the medications Karen was taking to address her pain issues, as well as her psychological disorders, anxiety and depression. The judge noted specifically that "[a]lthough my order today . . . is based on Doctor Taylor's most recent report, I don't find it enough to compromise the underpinnings or the reasoning of the Court's decision[.]"

The trial was held over ten days from September 22, 2010 until May 13, 2011. The trial court rendered an oral decision on July 1, 2011 terminating defendant's parental rights. During trial, the court heard testimony from Susanna Dias, Division caseworker; Drs. James Loving and Ronald S. Gruen, who conducted bonding evaluations; and Elizabeth "Liz" McCool, a substance abuse evaluator. Defendant did not testify nor did she present any witnesses.

In her opinion, Judge White found that the Division satisfied the four-prong test for termination of parental rights, codified in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence.

Judge White stated her findings as follows:

The Division has demonstrated that [Jane's] safety, health and development were endangered by her parental relationship. The child at four and a half was in the second or third percentile of basically every developmental step as compared to other children her age and I do find that that was as a result of her mother's inability to plan for her, care for her as outlined by Doctor Loving and Doctor Gruen, who were both very credible and whose opinions at this point I adopt as credible basically in full.

[Karen] was not able to remedy her situation or provide a safe or stable home for [the child], despite the offer of many reasonable efforts and services, evaluations and many efforts, including through the Court's encouragement, counsel's encouragement, with letters trying to coordinate communication between the various professionals, DYFS and non-DYFS, to work on humane pain control that did not involve parent capacity compromising to a very severe degree pain medication, none of that was successful.

The Division's efforts have been more than reasonable . . . . There are no other alternatives to consider in terms of [Jane's] placement. Her close family lives with her mother. In fact, it's the grandmother who may have spilled the pill on the floor that caused [the child] to overdose at the age of four . . . .

The Court further finds that although [Jane] does not presently have the type of bond . . . with her current caretaker . . . she is thriving in their home, and I do find that based on the lack of any foreseeable change in mother's ability to care for [the child], and in fact it has been deteriorating in the last six months as evidenced by the lack of visits and the continuing situation in her home . . . I do find that the Division has proven by clear and convincing evidence that termination of [Karen's] parental rights to [Jane] will not do this child more harm than good.

Defendant raises the following arguments on appeal:

I. THE DECISION TO TERMINATE [KAREN'S] PARENTAL RIGHTS WAS AGAINST THE WEIGHT OF SUBMITTED EVIDENCE AND TESTIMONY BECAUSE DYFS FAILED TO PROVE THE FOUR PRONGS BY CLEAR AND CONVINCING EVIDENCE.

PRONG 1: THE TRIAL COURT ERRED IN FINDING THAT DYFS PROVED THE FIRST PRONG BY CLEAR AND CONVINCING EVIDENCE BECAUSE DYFS FAILED TO ESTABLISH A NEXUS BETWEEN THE MOTHER'S ACTIONS AND REQUISITE STATUTORY HARM AND DYFS FAILED TO ESTABLISH THAT MOTHER'S ACTIONS CONSTITUTED A PATTERN OF PARENTAL INATTENTION OR NEGLECT.

PRONG 2: THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE MOTHER WAS UNWILLING OR UNABLE TO ELIMINATE THE HARM FACING HER DAUGHTER BECAUSE DYFS FAILED TO ESTABLISH THE REQUISITE HARM FOR THE FIRST PRONG.

PRONG 3: THE TRIAL COURT ERRED IN FINDING THAT DYFS HAD PROVIDED REASONABLE EFFORTS TO [KAREN] BECAUSE DYFS FAILED TO PROVIDE ANY SERVICES REASONABLY AIMED AT ASSISTING [KAREN] IN FINDING PERMANENT HOUSING; THE TRIAL COURT ALSO ERRED IN FINDING THAT THE COURT HAD CONSIDERED ALTERNATIVES TO TERMINATION BECAUSE THE TRIAL COURT FAILED TO CONSIDERED NUMBEROUS NAMED BIOLOGICAL RELATIVES.

PRONG 4: THE TRIAL COURT ERRED IN CONCLUDING THAT DYFS HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD BECAUSE THE TRIAL COURT DID NOT PROPERLY APPLY THE K.H.O. BALANCING TEST.

The law governing our analysis is well known. While recognizing the fundamental nature of parental rights and the need to preserve and strengthen family life, our Legislature has declared that "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests standard, initially formulated by the Court in N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-10 (1986), and subsequently codified in N.J.S.A. 30:4C-15.1(a), requires the State to satisfy the following four-part test by clear and convincing evidence before parental rights may be terminated:

(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.

These four requirements, which are extremely fact sensitive, "relate to and overlap with one another to provide a comprehensive standard . . . ." K.H.O., supra, 161 N.J. at 348.

The scope of our review of a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Generally, we "defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185 (2010). Further, "[b]ecause of the family courts' special jurisdiction and expertise in family matters," including termination actions, "appellate courts should accord deference to family court fact[-]finding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citations omitted).

When the trial court's findings of fact are supported by adequate, substantial and credible evidence, they are binding on appeal. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (l974) (holding an appellate court is not to disturb the factual findings and legal conclusions of the trial judge unless they are "so manifestly unsupportable by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice"). Reversal is required only in those circumstances in which the trial court's findings are "so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted). Applying this standard, we discern ample evidence in the record to support the judge's conclusions that the child's best interests required termination of Karen's parental rights.

The Division established by clear and convincing evidence that Karen has been unwilling or unable to alleviate the harm she has caused Jane and that termination of her parental rights will not do more harm than good. We are also satisfied that the Division made more than reasonable efforts to help Karen address the prescription medication abuse that led to Jane's removal, and that the court carefully considered alternatives to termination of Karen's parental rights. The evidence and testimony clearly indicate that defendant's dependency on prescription medication has had a demonstrable impact on her relationship with and ability to care for Jane.

A.

In addressing the first statutory prong, Karen argues that DYFS failed to demonstrate a correlation where the harm to the child results from the parental relationship. K.H.O, supra, 161 N.J. at 349. Defendant contends that she never harmed Jane and there is "no evidence that [Jane] suffered any physical or mental harm from [defendant's] actions." She states, "[t]he pill-swallowing incident . . . occurred outside [her] presence . . . and DYFS ultimately determined that the allegations were unfounded."

To satisfy the first prong, the Division must prove by clear and convincing evidence that the child's "safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). The Division need not "concentrate on a single or isolated harm or past harm as such. Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348.

"The harm shown 'must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 610 (App. Div.) (citing K.H.O., supra, 161 N.J. at 352), certif. denied, 192 N.J. 68 (2007). The harm need not be inflicted by the parent personally but may arise from the parent's failure to provide a safe and stable home for the children. M.M., supra, 189 N.J. at 289.

Here, the Division established that when responding to the second referral, the home was filthy and smoke-filled. The child and Karen appeared dirty with matted hair. As noted, Jane's development was below average for a similarly aged child. The child also suffered from asthma, from the smoke-filled environment, poor dental health and hearing problems. Based on Drs. Loving and Gruen's testimonies, the trial court determined that Jane's aggregate developmental issues correlated with defendant's inability to safely parent. This was a reasonable determination based on the record.

The second prong of the termination standard analyzes whether it "is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care."

A.W., supra, 103 N.J. at 607. "[T]he second prong may be met by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse [or] the inability to provide a stable and protective home . . . ." K.H.O., supra, 161 N.J. at 353.

The Division established supervised visitation; however, as the litigation continued, Karen increasingly missed visits. The case worker continued to note the worsening condition of the home and Karen's continued problems with personal hygiene. The court specifically found that "[d]espite the reduction in narcotics based medication for [Karen], she had not restored herself as is evidenced by the lack of visits with the child, the deplorable condition of herself and her home . . . she can[not] care for herself, let alone [Jane]."

"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) (citing A.W., supra, 103 N.J. at 616 n.14). The Supreme Court has explained that the lack of a permanent safe and stable home constitutes "harm" under the best interests of the child standard. D.M.H., supra, 161 N.J. at 383-84.

A determination under prong three is two-fold. The Division must make "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 must have considered alternatives to termination of parental rights."

N.J.S.A. 30:4C-15.1(a)(3) (emphasis added). The Supreme Court has held that "'[r]easonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." M.M., supra, 189 N.J. at 281. The reasonableness of the Division's efforts is not measured by its success, but rather "against the standard of adequacy in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393. The sufficiency of the Division's efforts must be evaluated on a case-by-case basis. Id. at 391.

The record confirms that the Division offered and provided numerous services, including psychological evaluations, substance abuse evaluations, substance abuse treatment, pain management programs, parenting classes, medical services for the child and visitation services over a period of three years. Despite the Division's efforts, defendant demonstrated a pattern of unwillingness to comply with Division and court-ordered services. Karen refused drug treatment and pain management program referrals, missed clinical appointments, and continued to rely on pain medications. Karen's visits with her daughter became increasingly sporadic as the litigation proceeded. When she did appear, she was often irritable or found nodding off.

Second, the court must consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This involves placement with relatives. The Division has an "obligation to identify and assess relatives." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Defendant claimed that the court failed to consider numerous biological relatives who were interested in caring for the child. The trial judge, however, noted that both she and the Division considered alternatives to termination of parental rights. An early placement was with an aunt who determined that she could not adopt the child. The Division was unable to place the child with her paternal grandparents because they lived in a 55 community and did not have regular contact with the child. Other close family members, Karen's brother and grandmother, live in the same house, and in the same conditions, with her. Given due consideration to the efforts made, the trial judge concluded "there were no reasonable alternatives to consider" with respect to familial placement. The Division proved this prong by clear and convincing evidence.

Finally, defendant argues that the Division failed to prove by clear and convincing evidence that termination of her parental rights will do more good than harm. The fourth prong of the termination standard requires the Division prove that the termination of parental rights will benefit the child more than it harms the child. N.J.S.A. 30:4C-15.1(a)(4). The Court has recognized that "not all children[] who are 'freed' from their legal relationship with their parents[] find the stable and permanent situation that is desired even though this is the implicit promise made by the [S]tate when it seeks to terminate the parent-child relationship." A.W., supra, 103 N.J. at 611 (citation omitted). In other words, "child[ren] deeply need[] association with a nurturing adult," and courts should "mak[e] provision for a more promising relationship in the child's future." Id. at 610 (citations omitted).

Defendant's argument, however, is not supported by the record as there is substantial, credible evidence to support the court's conclusion that terminating Karen's parental rights will do more good than harm. Dr. Loving diagnosed defendant with "substance abuse and dependant issues" and testified that defendant's drug usage has "impacted and impaired" her ability to parent. Dr. Gruen testified that he did not believe Karen could safely parent Jane and that she would have the ability to remedy her situation in the foreseeable future because Karen was reluctant to change. In addition to their testimonies and evidence of defendant's worsening behavior, of particular note is the child interview by the trial judge wherein Jane stated that she was happy in her current home with her foster parents. In her opinion, the judge noted statements made by Jane that "I know my mommy was taking drugs on purpose" and "I don't like mommy." Sadly, from this interview, it appears that Jane was not experiencing substantial harm from being with her foster family. To the contrary, the child expressed concerns about her mother's drug use. "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." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012). We conclude the court reasonably determined that termination of defendant's parental rights would not do more harm than good.

Our careful review of the record leads us to conclude that the Division established the elements necessary to support the judgment of guardianship and the termination of Karen's parental rights by clear and convincing evidence.

Affirmed.


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