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New Jersey Division of Youth and Family Services v. L.T.

Superior Court of New Jersey, Appellate Division

October 3, 2013

L.T., Defendant-Appellant IN THE MATTER OF THE GUARDIANSHIP OF T.D.W. and J.S.W., Minors


Submitted September 9, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0128-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Curtin Gouldin, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Kendra Andrews, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief).

Before Judges Ashrafi, St. John and Leone.


Defendant-mother, L.T., appeals from the judgment of the Family Part terminating her parental rights to two daughters, T.D.W. and J.S.W., now ages thirteen and ten. We affirm.

Defendant also has three older daughters, now twenty-one, twenty, and seventeen years old. She and the children have been involved with DYFS virtually all their lives. In the 1980s, defendant and seven of her siblings were removed from her mother's custody because of the mother's abuse of alcohol and drugs and her inability to provide adequate care and nurture for her children. Defendant lived in different foster homes during much of her childhood, periodically running away. She was sexually abused by an older relative, as had been her own mother in her childhood. Defendant was suspended from school while in the tenth grade and never returned.

Defendant's first daughter was born in 1992 when defendant was eighteen years old, and the next two girls were born by 1995. DYFS received a referral in 1996 that defendant was physically abusive toward the girls. Over the next several years, DYFS received five additional referrals of abuse or neglect of the girls, and it substantiated some of the referrals and not others. DYFS provided services to address defendant's difficulties in caring for her children.

The older of the two girls who are the subject of this appeal was born in 1999. In 2002, one of her sisters came to school with a black eye. DYFS investigated and determined that defendant was disciplining the girls with a belt and had punched the eight-year-old child in the face. DYFS removed the child and her three sisters from defendant's care. DYFS then provided further services to defendant and the children. While the four girls were in the custody of DYFS, the youngest of the five daughters was born, in 2003. Defendant tested positive for use of marijuana at the time of the baby's birth.

Defendant took advantage of the services provided by DYFS, and the family was reunited in 2004. For the next two years, all five girls lived with defendant. From time to time, the household included the father of the two youngest girls. DYFS continued to provide services to the family after the reunification, including financial assistance so that defendant could pay arrearages on her utility bills for their home. In October 2006, the father of the two youngest girls died of leukemia. According to defendant, she suffered from severe depression after his death.

In April 2008, DYFS received a referral that defendant was living with her three youngest daughters in an apartment without electricity and that the girls were otherwise neglected. (The two oldest girls were living with their father's family at that time.) DYFS investigated the referral and found defendant's apartment had no electricity for more than a month, defendant being $2, 600 in arrears on paying her electric bill. An extension cord from a neighboring apartment provided the only electric power for defendant's apartment.

Defendant's lack of financial means seemed to be a result of her long-term unemployment and also her chronic use of marijuana. She received Section Eight housing assistance from the federal government, and her personal obligation on rent was only $40 per month. She also received food stamps and a monthly welfare payment. She and her daughters had a home and food, but defendant repeatedly failed to pay her utility bills. When DYFS investigated the April 2008 referral, it determined that defendant had no money although she had just received her monthly welfare check four days earlier. She admitted she was using marijuana but denied that all her disposable cash went to pay for the marijuana.

DYFS placed the three girls with relatives and provided follow-up services. Among other things, DYFS paid a substantial portion of defendant's electric bill and local welfare officials paid the rest. The following month, DYFS received a referral that the girls were again living with defendant in a home without electric power. When DYFS investigated, it found defendant's nineteen-year-old boyfriend at her apartment, and he admitted he was using marijuana. In response to questioning by the DYFS caseworker, one of the girls revealed that defendant and her friends smoked marijuana when the children were present.

DYFS referred defendant to an outpatient drug program, but she continued to test positive for marijuana use. In July 2008, DYFS effected an emergency removal of the children when it became apparent that their home situation was not improving through alternative measures. Defendant exhibited hostility to DYFS caseworkers and seemed to believe that the children were not in need of better care and stability than she was providing. DYFS obtained the approval of the Family Part to take custody of the girls and to place them in foster homes.

Over the following months and years, DYFS provided a host of services to defendant and the girls with the goal of again reunifying them. The girls were evaluated and provided individual therapy. Defendant was referred to drug use programs, parenting classes, and psychiatric and psychological evaluations. Defendant would attend programs for a time but not steadily, and she was terminated from programs for failing to attend. Also, she continued to test positive for marijuana use while on drug treatment programs. Periodically, she would refuse to be tested, admitting that she had used marijuana. As the trial court found later, the programs were not effective because defendant was not committed to them and seemed to have no intention of stopping her regular use of marijuana.

With some variation, the psychiatric and psychological evaluations determined that defendant suffers from mental and emotional conditions, primarily diagnosed as depression and anxiety. The evaluators concluded uniformly that defendant was not at that time capable of providing the stability and nurture that children need. One evaluator found that defendant has "significant difficulty acknowledging and responding to the needs of others, including children." A psychiatric evaluation concluded that more extensive evaluations were necessary but also recommended against immediate reunification of the children with defendant. Defendant told a third evaluator that she had in the past been prescribed certain psychotropic medications, but she was not taking them and preferred to use marijuana to treat her depression. With DYFS's help, defendant was enrolled in a Mentally Impaired Chemically Addicted (MICA) program. She was later discharged from the program because she continued to use marijuana, making it difficult for the therapists to evaluate and treat her mental conditions, and she also did not attempt to find a job as recommended by the program. Over the ensuing months, DYFS managed to get defendant re-enrolled in a MICA program.

DYFS also provided supervised therapeutic visitations of defendant with her daughters. The therapists reported that defendant and the children were happy to see each other but that defendant sometimes acted inappropriately in the presence of the children. Subsequently, the therapeutic visitation program reported to DYFS that defendant had not made any significant improvement in obtaining employment, stabilizing her home circumstances, or ending her chronic use of marijuana.

Although DYFS had previously recommended, and the Family Part had approved, a permanency plan for reunification of defendant with her daughters, DYFS changed the recommendation in November 2009 to a permanency plan for termination of defendant's parental rights and future adoption of the girls. The Family Part approved the new permanency plan.

DYFS's guardianship complaint was filed in February 2010. Services continued for defendant and the girls as the case proceeded toward trial. Despite prior terminations from programs, defendant was accepted again in a MICA program and a Substance Abuse Initiative program. While enrolled in the programs, defendant continued to test positive in her drug screens, both at the programs and in conjunction with her attendance at periodic review hearings in the Family Part.[2] In addition, defendant had to be admonished at her therapeutic visitations with the girls not to use profanity, not to be overly critical of them, and not to tell them they would soon be reunited with her because that suggestion was false and caused problems in the girls' behavior in their foster home.

During this time, DYFS considered potential placement of the girls with relative caregivers, but the relatives who were identified were not appropriate for the task. In particular, defendant's mother was ruled out upon confirmation of her history with DYFS and her own children, as well as information about her prior abuse of alcohol and drugs.

DYFS also continued to provide services for the girls, who were displaying emotional and behavioral problems in their foster homes, the youngest also in need of special educational services at her school. The girls were assigned mentors from the Youth Advocacy Program. The two girls who are the subject of this appeal were relocated to different foster homes several times because of problems such as stealing by one and excessive crying by the other. Eventually, on August 31, 2010, the two girls were placed together in a therapeutic foster home, and they remained there to the time of trial. The law guardian informed the court that their behavior had improved.

Defendant's attendance at her MICA program began to decline in the latter part of 2010, and she continued to test positive for marijuana or to refuse to be tested. She also had behavioral outbursts while attending her programs. At a court review hearing in March 2011, she admitted her electricity had again been shut off because she had not paid the bills.

Trial of the guardianship complaint was conducted on three non-consecutive days in May and June 2011. The court interviewed the older girl and heard testimony from two psychologists that had evaluated defendant and the children. It also reviewed a full history of defendant's involvement with DYFS. At the time of trial, the foster parents were not yet committed to adopting the two girls.

Psychologist Denise Williams-Johnson was called as a witness by the law guardian. The doctor had conducted a bonding evaluation and found that the girls had a positive, mutual bond with defendant and preferred to live with her. At the same time, they acknowledged that their foster mother had taken good care of them and they were willing to accept her as an alternative to defendant. Dr. Williams-Johnson found defendant at high risk of the same kinds of problems that had beset the family when the children were removed several years earlier, and she did not believe defendant was ready to provide a stable, nurturing home for her daughters. However, because the foster mother had not committed to adoption, Dr. Williams-Johnson recommended against termination of defendant's parental rights. She believed the girls would suffer harm if they lost contact with both defendant and their foster mother.

DYFS called psychologist Robert Clyman to testify. Based on his recent evaluation of defendant in March 2011, Dr. Clyman testified that she was limited in her ability to address her deficiencies, did not accept responsibility, and had no coherent plan for providing stable housing for her daughters. He found that her marijuana use and inability to find employment were impediments to her ability to care for the children. He expressed doubt about her capacity to improve in the future and to provide for the children's needs. He concluded that defendant and the girls would regress if they were returned to live with her.

Dr. Clyman had also conducted a bonding evaluation and agreed that the girls had a positive relationship with defendant, but he believed their attachment to her was insecure. While the girls were happy to spend time with defendant during the supervised visits, they did not look to her to fulfill their needs. He concluded that the girls would suffer harm in the short term if defendant's parental rights were terminated but termination was in their best interest because they needed a sense of permanency in their lives.

The defense did not present any witnesses at the trial. The Family Part judge stated his decision orally on June 23, 2011. He found that defendant's failure to provide a stable and healthy home for her daughters caused them harm, and that she displayed an unwillingness or inability to eliminate the harm. Her spotty record with many programs to which she had been referred was a clear indication of her unwillingness or inability to improve her living condition for the benefit of the children. The judge referred to defendant's continuing use of marijuana as an obstacle to her finding employment, since many jobs to which she might apply would conduct drug tests. In addition, her constant marijuana use indicated a focus on her own desires and needs rather than her children's needs.

The court found no question that DYFS had provided many services to defendant and the children with the goal of reunification, but the services had not succeeded. Even when defendant attended and finished a program, the court observed, the program seemed to have no positive effect on her ability to function as a parent. Also, DYFS had satisfactorily proven that it attempted to find alternatives to termination of defendant's parental rights, including placement of the girls with relatives. None of those alternatives was viable.

In considering whether termination of parental rights would harm the girls, the court considered their stated wish to maintain a relationship with defendant, and also took into account that the foster mother was not committed to adopt them. Nevertheless, the court concluded that termination would not do more harm than good. The court considered that both experts who testified, and those who had conducted evaluations but were not called as witnesses at the trial, all agreed that defendant was not then capable of providing adequate care of the children. The court mentioned defendant's own childhood and family history, and it stated that there was too great a risk of that history being repeated by her daughters if they did not find some permanency and stability in their lives. The court said:

[Defendant] was in and out of foster homes throughout her whole life. She never had a stable environment of her own. And now she's asking the Division to do the same thing to her children, keep them in foster care for their lives. It didn't work for her. It's not going to work for these children either.

The court entered judgment terminating defendant's parental rights.

While appeal of the June 23, 2011 judgment was pending, the foster mother indicated her intent to adopt the girls. Defendant also claimed that she found employment and stabilized her housing. DYFS moved before this court for a remand to the Family Part to supplement the record with the new evidence of the foster mother's intent, and defendant agreed to the remand for her own purposes. We remanded the matter and dismissed the prior appeal.

The Family Part conducted a hearing on remand on May 14, 2012. Defendant did not attend the hearing and her attorney presented no evidence of defendant's own current circumstances. The attorney did present testimony through a DYFS supervisor that defendant's two older daughters were again living with her, both having reached the age of majority. DYFS presented testimony that the foster mother had expressed her intention to adopt the two youngest girls and that the girls were amenable to the adoption. The law guardian now favored termination of defendant's parental rights because adoption had become a true prospect for the girls. The court concluded that the new evidence did not create any reason to alter the judgment of termination and, in fact, confirmed that it was appropriate.

In the current appeal, defendant argues that DYFS failed to prove the necessary criteria for termination of her parental rights in accordance with N.J.S.A. 30:4C-15.1(a). Under the statute, parental rights may be terminated when:

(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)[DYFS] 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.

DYFS bears the burden of proving the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). The Family Part's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

As an appellate court, we do not weigh the evidence again as if we must make an initial decision. We defer to the trial court's findings of fact and the conclusions of law if they are supported by the evidentiary record. G.L., supra, 191 N.J. at 605; N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J.Super. 418, 433 (App. Div. 2009). We accord deference to the trial judge because he had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus supporting a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). In E.P., the Supreme Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Ibid.; accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "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." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605). Here, the Family Part's conclusions were not wide of the mark but well-supported by the evidence DYFS presented.

The Family Part found that the girls had been harmed because of defendant's marijuana use as a substitute for prescribed medications to treat her mental and emotional difficulties. It concluded that the children were neglected as a result. Defendant's addiction to marijuana diverted her from her children's needs. It interfered with her inclination and ability to find employment and to produce a stable income by which she might provide a safe home for the children. The first prong of the statute was proven by the mother's failure to provide stable housing for the children despite many efforts of DYFS and other social services agencies to assist her, including direct financial assistance.

The second prong and part of the third prong of the statute were proven by evidence showing no improvement in defendant's circumstances despite years of services and referrals. Defendant was unwilling or unable to take proper advantage of those services. She was repeatedly discharged or failed to attend programs to address her drug use and her mental and emotional deficits. Even when she attended, the programs had no effect on her behavior and marijuana use.

Also pertinent to the third prong, DYFS attempted to find alternatives to termination, especially because the girls were closely bonded with defendant and all parties wanted to maintain the positive aspects of the parent-child relationship. The history of DYFS's involvement with defendant demonstrated that plans of reunification were considered, and that they had been implemented without success. Relatives were not available to care for the two youngest girls, as they were for the temporary care of the older teenagers. Only when a stable therapeutic foster home was located for the youngest girls did their personal problems begin to improve. Now what they needed most was permanency in their lives.

Defendant argues that the evidence did not demonstrate by the clear and convincing standard of proof that termination of her parental rights did not do more harm than good, especially because the girls wanted to maintain a relationship with their mother as the older daughters had done. The trial judge took into consideration the girls' wishes but aptly described the potential long-term detriment in their lives if they were to forego an opportunity for permanency in their home and family lives for occasional contact with defendant Such a result might cause the girls to be relocated like defendant into changing foster homes The court was concerned that the girls should have a better opportunity than defendant did to overcome their difficult childhood and to find a stable nurturing home

Whether these two girls remain in contact with defendant cannot be predicted but the Family Part was not clearly mistaken or wide of the mark in elevating the children's need for permanency see N.J. Div. of Youth & Family Servs. v. F.M. 211 N.J. 420 453 (2012) over defendant's and their need to have periodic contact It did not err in concluding that termination of parental rights would not do more harm than good

Because "substantial and credible evidence on the record" supports the Family Part's judgment id. at 448 we reject defendant's arguments on appeal and affirm the judgment terminating her parental rights


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