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New Jersey Division of Youth and Family Services v. M.G.

Superior Court of New Jersey, Appellate Division

June 3, 2013

M.G. and K.C., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF Y. N.C. , a minor.


Submitted April 29, 2013

On appeal from the Superior Court of New Jersey, Law Division, Family Part, Camden County, Docket No. FG-04-124-12.

Joseph E. Krakora, Public Defender, attorney for appellant M.G. (Anna F. Patras, Designated Counsel, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant K.C. (Richard Sparaco, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lisa A. Puglisi, Assistant Attorney General, of counsel; Lisa J. Godfrey, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Y. N.C. (David Valentin, Assistant Deputy Public Defender, on the brief).

Before Judges Parrillo, Sabatino, and Fasciale.


In these consolidated matters, K.C. and M.G. appeal the termination of their parental rights to their son Y. N.C. We affirm.

Twenty-one year-old K.C. gave birth to Y. N.C. on May 13, 2004. Y. N.C. is a special needs child who is learning and behaviorally disabled. In addition to Y. N.C. , M.G. fathered seventeen other children, born to eleven different women. K.C. is the mother of two of these other children, J. and R., who reside in the custody of their maternal grandmother, D.P. K.C. has one other daughter, I., who resides in the custody of her paternal aunt.

The Division of Youth and Family Services (Division) became involved with this family on November 5, 2003, having received a referral from police officers who witnessed K.C. punching her then-three-year-old daughter I. "five times." D.P. had both physical and legal custody of I. at the time. The Division removed I. from D.P. and eventually placed her in her paternal aunt's care.

On September 20, 2004, only four months after Y. N.C. 's birth, the court granted temporary custody of the child to his maternal aunt, N.W. M.G. did not appear in court, but consented to the transfer of custody via telephone. By her own admission, K.C. agreed to transfer custody to N.W. so that N.W. could get some sort of financial assistance, presumably from the government. It appears that neither K.C. nor M.G. ever had physical custody of Y. N.C.

In September 2006, K.C. gave birth to R. Shortly thereafter, the hospital transferred the baby to another hospital for specialized treatment. The hospital could not locate K.C., and she did not visit her baby at the hospital. On October 24, 2006, the court granted D.P. temporary legal and physical custody of R. In July 2007, K.C. — while apparently homeless — gave birth to J. It appears that M.G. may have been incarcerated at the time. On October 22, 2007, the court granted D.P. legal and physical custody of J. Neither parent was present in court.

At some point after May 2010, N.W. gave physical custody of Y. N.C. to K.C.'s sister, Ka.C. On September 9, 2010, the Division received a referral that K.C. and Ka.C. physically fought when K.C. tried removing Y. N.C. from her custody. A Division worker arrived to investigate and noticed that Ka.C. appeared intoxicated. The Division removed Y. N.C. and placed him in a Division-approved resource home. On or about September 13, 2010, the Division filed a complaint for removal and the court granted the Division legal and physical custody of Y. N.C. After several placements proved unsuccessful due to K.C.'s behavioral problems, on March 25, 2011, the Division placed Y. N.C. in his current resource home.

Meanwhile, on June 24, 2010, Meryl E. Udell, Psy. D., performed a psychological evaluation on K.C. Dr. Udell reported that K.C. "is not considered a safe or appropriate care giver to her child(ren) at this time[, ]" she may be homeless, is unemployed, "does not have any history of successful parenting[, ]" and "has not had her children in her care for quite a while." Based on several tests administered, Dr. Udell concluded that K.C. "did not know what year this was, " and is unable to safely parent a child due to her "poor insight and judgment, history of unstable housing[, ] . . . psychotic symptoms[, and] lack of basic understanding of parenting." Dr. Udell recommended that K.C. take parenting classes, and undergo psychiatric and individual counseling, but K.C. informed her that "it is against her religion to take . . . medication" or "to participate in therapeutic services."

Following K.C.'s completion of an eight-week parenting skills training program, on December 2, 2010, Abayomi Ige, M.D., who performed a psychiatric evaluation of K.C., reported that "[t]here is a striking and bewildering lack of insight in this young lady and her inability to relate a stable home environment and a continuous employment for the purpose of raising children." Dr. Ige concluded that while she has "no obvious diagnosable psychiatric illness, . . . she does not currently demonstrate the temperament and stability to raise her children."

In fact, at a December 13, 2010 fact-finding hearing, K.C. stipulated that she needed parenting skills training, anger management therapy, and a psychological evaluation. However, on February 2, 2011, K.C. was discharged from her anger management therapy because she "refuse[d] to address anything that she believes is not directly related to her current anger management." Her unwillingness to discuss certain matters stymied the therapeutic process. In the evaluator's opinion, K.C. "appears to have relied on other people to raise her children, " and she requires intensive in-home services to ensure she could implement proper parenting skills.

At the February 7, 2011 fact-finding hearing regarding M.G., he stipulated that "he is a family in need[] of services due to [Y. N.C. 's] behavioral problems." The court ordered that M.G. undergo a psychological evaluation and substance abuse treatment. The Division noted, however, that M.G. did not comply with the order and refused to participate in any services.

M.G. has been arrested and convicted several times: on May 30, 1986, he was convicted of burglary; on October 25, 1991, he was convicted of armed robbery; on July 16, 1998, he pled guilty to resisting arrest and third-degree receiving a stolen automobile; on July 20, 1998, he pled guilty to third-degree conspiracy to possess a controlled dangerous substance with intent to distribute; on September 10, 1998, he was sentenced to five years imprisonment, concurrent with his pleas regarding third-degree receiving a stolen automobile and third-degree conspiracy to possess a CDS with intent to distribute; on March 3, 2008, he pled guilty to third-degree aggravated assault and was sentenced to one year of probation; and on July 8, 2009, he pled guilty to third-degree aggravated assault and was given jail credit and sentenced to five years of probation. M.G. also has a history of domestic violence.

Throughout, the Division and the court afforded both parents visitation. M.G. visited Y. N.C. only twice because he did not want to visit him at the Division's office while "inside a closed room" where they would be "monitor[ed]." K.C. missed several visitations, but appears to have "made more of them than she missed." On July 6, 2011, workers for the Robin's Nest therapeutic visitation program reported that K.C. became angry and argumentative with them. Division workers noted that K.C. failed to supervise Y. N.C. during her visits, and one of them reported that K.C. told Y. N.C. to "act out" so that his foster mother would request his removal. She also gave Y. N.C. her photo identification card and told him to "run away" and find her. Due to K.C.'s commands, Y. N.C. had a behavioral "meltdown" and reported that he was upset because he liked his foster home.

Kennedy Behavioral Health personnel have classified Y. N.C. as being learning and behaviorally disabled. He has been admitted to the crisis unit four times due to his behavior. Y. N.C. attends an outpatient therapeutic behavioral program and attends a specialized education class at school.

On October 20, 2011, the Division filed its verified complaint for guardianship seeking to terminate K.C.'s and M.G.'s parental rights to Y. N.C. At the guardianship trial on April 24 and April 27, 2012, the Division presented expert testimony from Frank Schwoeri, Ph. D., while neither K.C. And M.G., both of whom testified, offered any expert proof on their behalf.

On February 6, 2012, Dr. Schwoeri conducted a psychological evaluation of K.C. Ultimately, Dr. Schwoeri concluded that his findings were "substantially in agreement" with prior evaluations finding that K.C. "was unable to parent her children." As to whether she could parent in the future, Dr. Schwoeri testified:

Well[, ] the problems that are interfering with her capacity to parent are not transient; they're long term and they're mostly either difficult to remediate or impossible to remediate. . . . [S]he can't be brought up to a higher level of cognitive functioning. . . . [B]ecause of her low level of functioning alone, it could take a very long time, if ever, to remediate her parenting deficits by guidance, instruction[, ] and support since she also has such poor circumstances. Combining that with her emotional instability, I would say it makes it nearly impossible because she also is resistant and actively refuses help . . . . She doesn't want to be treated.

Regarding his psychological evaluation of M.G., Dr. Schwoeri reported:

[M.G.] acknowledged his criminal history of having spent at least two . . . state prison sentences and a number of incarcerations in the county jail. He had a significant criminal background . . . . When I asked him about what he did, he said he robbed a policeman. . . . [W]hen I expressed surprise about that, he explained to me[] that there used to be a lot of bad cops in Camden, and . . . [the] policeman . . . had taken money from him . . . .
[H]e told me that he has eighteen children by eleven different mothers. When I asked him if he provides support for them, his response was, "I only have three support orders, " which didn't specify whether he's actually complying with those support orders. . . . My impression was [that] he hasn't taken physical care of any of these children and doesn't provide much of any financial support for them . . . .

Dr. Schwoeri found M.G. to have "a true narcissistic personality, which means he tends to be grandiose, very self-involved, with an inflated sense of self worth[.]" As to how this relates to M.G.'s parenting, Dr. Schwoeri testified:

[H]e will tend to see children as extensions of himself rather than as separate persons in their own right and tend to usually misunderstand them in the direction of whatever his own needs are.
I think the fact that he has eighteen children who most or all of whom have not been in his care and most at least who have not been supported by him speaks to a reckless disregard for consequences that doesn't speak to good parenting either.

Dr. Schwoeri diagnosed M.G. as having antisocial personality disorder. M.G. scored in the "clinically significant range on one of the [DSM IV] scale[s], " thereby indicating that M.G. likely "finds it easy to violate the rules of society, to violate other people's rights, to be exploitive and manipulative[.]" On whether M.G. has the ability to parent, Dr. Schwoeri testified "that he doesn't" — his failure to comply with court and Division services "suggests [he] place[s] his own needs ahead of the needs of his child[ren], [Y. N.C. ] in this case." Therefore, the expert concluded that M.G.'s "personality characteristics were incompatible with [Y. N.C. 's] particular needs[.]"

Dr. Schwoeri also performed bonding evaluations. As between Y. N.C. and K.C., the expert stated that "there have been relatively few times, if any, when Y. N.C. was continuously in the sole care of his mother." As such, he concluded that there is no "depth of emotional bonding" between the two.

As to whether harm would result if Y. N.C. 's relationship with K.C. were severed, Dr. Schwoeri opined that "the degree of harm that [Y. N.C. ] would experience is much less than would be experienced by a child who had a continuous relationship with a parent[.]" He further testified that, "even if there [had been] more of an attachment bond previously[, ] the lack of consistent care giving over recent years would have significantly attenuated it."

Dr. Schwoeri conducted at least two bonding evaluations of M.G. and Y. N.C. , the most recent having occurred on April 10, 2012. The expert testified:

[A]gain, I would say in many ways it was similar to the evaluation with [K.C.]. [Y. N.C. ] clearly was familiar with his father and was comfortable with him. But overall[, ] I would have to say that the nature of [their] relationship . . . would be similar to say an uncle that [Y. N.C. ] sees once in a while, not a father. I mean he knows [M.G. is] his father, he refers to him as his father, and he also said he would like to be with him. But . . . he said that about everybody. . . . [T]he bonding assessment includes looking at this in the context of what's known about the history of the relationship as well. [Here, ] . . . the two of them had spent so little time together that I can say with reasonable psychological certainty that . . . [Y. N.C. ] does not have . . . a significant attachment bond to his father, and that he would not be harmed. He would not suffer significant and enduring harm if his father's rights were terminated.

Last, Dr. Schwoeri testified that "it's less likely that [M.G.] could" ameliorate any harm if Y. N.C. were separated from his foster mother. The expert concluded that he does not "think that it's likely, even if [Y. N.C. ] were placed in [M.G.'s] care that he would be the one that would primarily provide the care."

In stark contrast, Dr. Schwoeri found that Y. N.C. "certainly has an attachment [bond] to" the foster parent, "and he would suffer harm, significant and enduring harm if he were to be removed from her care[.]" Dr. Schwoeri also testified as to the importance of permanency for a child and that continuously moving is detrimental to a child. Ultimately, Dr. Schwoeri concluded that he "strongly believe[s] that [Y. N.C. ] is best served, his best interest is to remain with his current foster mother."

At the close of evidence, the Family Part judge found that the Division satisfied by clear and convincing evidence the four prongs of the statutory "best interests of the child" test pursuant to N.J.S.A. 30:4C-15.1(a) and thus terminated K.C.'s and M.G.'s parental rights to Y. N.C. Specifically with regard to the statutory requirements of N.J.S.A. 30:4C-15.1, the judge found:

It is . . . clear and convincing to me[] that [Y. N.C. 's] health, [Y. N.C. 's] development has in the past been endangered by the parental relationship or more accurately, the absence of parental relationship and that it will be continued to be so endangered in the future. That neither parent . . . is able or willing to eliminate the harm facing [Y. N.C. ], and that harm includes evidence that separating him from his source family would cause serious and enduring emotional, psychological harm to him.
The Division has made reasonable efforts to locate other relatives and to provide services to help these parents correct the circumstances which led to [Y. N.C. 's] placement outside the home in the first place. The [c]ourt has considered these other relatives as alternatives to termination of parental rights, and finally for the reasons stated by Dr. Schwoeri, termination of parental rights would not do more harm tha[n] good.

On appeal, both defendants argue that the judge erred by terminating their parental rights because there was insufficient evidence to satisfy the statutory requirements of N.J.S.A. 30 30:4C-15.1. M.G. additionally contends that the judge's findings fell short of Rule 1:7-4(a)'s requirements. We reject these contentions as without merit.

In reviewing parental termination cases,

[o]ur task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations omitted) (internal quotation marks omitted).]

A termination of parental rights hearing focuses on the "best interests of the child." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008). The State bears the burden "to satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." F.M., supra, 211 N.J. at 447. The Division must establish 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 [D]ivision 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).]

These "four prongs are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." F.M., supra, 211 N.J. at 447-448 (internal quotation marks omitted).

To establish prong one, the Division "must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). The Division need not wait "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). "[I]n some cases, the potential for emotional injury can be the crucial factor in child placement." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986), superseded by statute on other grounds, N.J.S.A. 9:3-46.

Here, four months after Y. N.C. 's birth, the court granted custody initially to N.W. and neither parent has ever had a consistent relationship with the child. Because of his parents' unwillingness and/or inability to care for Y. N.C. , he has had four different placements. As Dr. Schwoeri testified, the bonding evaluations between Y. N.C. and his parents did not establish that a significant attachment existed between them. See In re Guardianship of K.H.O., supra, 161 N.J. at 348. Compounding the situation, Y. N.C. is a special needs child with a history of behavioral problems unattended to by K.C. and not even acknowledged by M.G. When the Division took Y. N.C. from N.W.'s physical custody, he was dirty and unkempt. The child has been admitted to the crisis center at least four times and still receives therapeutic counseling. Moreover, the parents' low cognitive functioning and/or psychological deficiencies indicate that their continued parental relationship to Y. N.C. would lead to "continuing deleterious effects on the child." F.M., supra, 211 N.J. at 449 (internal quotation marks omitted). Further, Dr. Schwoeri opined that Y. N.C. 's lack of permanent and stable living in the past has caused behavioral problems which will likely persist if he were to continue being placed in different homes.

Prong two "in many ways, addresses considerations touched on in prong one[, ]" F.M., supra, 211 N.J. at 451, and "relates to parental unfitness[, ]" In re Guardianship of K.H.O., supra, 161 N.J. at 352. "[T]he inquiry centers on whether the parent is able to remove the danger facing the child." F.M., supra, 211 N.J. at 451. The court must "determine whether it is reasonably foreseeable that the parents can cease to inflict harm upon the" child. A.W., supra, 103 N.J. at 607. Alternatively, under this prong, "it may be shown that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." In re Guardianship of K.H.O., supra, 161 N.J. at 348-49.

Here, the undisputed expert proof is that K.C. and M.G. are unfit to raise Y. N.C. , and continue to be. Both, at different points, have refused services or failed to comply with services. Neither is employed nor able to provide Y. N.C. with a safe, permanent, and stable living environment. Both parents suffer from mental and/or psychological limitations and deficiencies that, according to Dr. Schwoeri, prevent them from being able to properly parent Y. N.C.

Prong three focuses on "whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." F.M., supra, 211 N.J. at 452 (quoting N.J.S.A. 30:4C-15.1(a)(3)). The court must consider what steps the Division took "toward the goal of reunification." Ibid. Furthermore, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful." Ibid. (internal quotation marks omitted).

In this case, the Division made several attempts to place Y. N.C. with relatives or family friends, only to reasonably conclude that none was appropriate. Moreover, the record demonstrates the many services that the Division offered both parents, which they either refused or failed to comply with.

Under prong four, the Division must prove by clear and convincing evidence that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(d). The fourth prong "is a 'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "[T]o satisfy the fourth prong, the State should offer testimony of a well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents." Ibid. An important consideration under this prong is "[a] child's need for permanency." Ibid. (internal quotation marks omitted). "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid.

In this regard, Dr. Schwoeri testified at length as to the parents' cognitive functioning, psychological conditions, and parenting abilities. Based thereon, he concluded that neither K.C. nor M.G. would be able to adequately care for Y. N.C. ; neither parent had a significant attachment to Y. N.C. ; and that terminating their parental rights would not cause greater harm to Y. N.C. Instead, Dr. Schwoeri indicated that greater harm would result from terminating Y. N.C. 's relationship with his current foster parent, who is able and willing to adopt Y. N.C. and provide him with a stable and permanent home. These findings remain undisputed.

Accordingly, we are satisfied that the trial judge's findings on which the parental termination decision rests are supported by substantial credible evidence in the record. We are equally satisfied that M.G.'s remaining contention that the judge failed to articulate his factual findings and legal conclusions is without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).


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