PER CURIAM.
L.B. appeals from an April 23, 2010 Family Part order that terminated her parental rights to her two sons, K.B., born in the fall of 2001, and J.K., born in the early summer of 2005. On appeal, she argues that the order in question should be reversed because the Division of Youth and Family Services (DYFS or the Division) failed to satisfy the statutory standard for termination of parental rights set forth in
L.B. first came to the attention of the DYFS in October 2002, when the agency received a referral alleging that L.B.'s home was in disarray and smelled of urine, and that K.B., then eleven months old, had been pulling on his ears for weeks as though he had an ear infection. The referent also maintained that K.B. had not been seen by a pediatrician after being discharged from the hospital immediately after his birth.
The investigation conducted by DYFS not only confirmed the reports from the referent, but raised serious concerns about L.B.'s ability to parent due to her own longstanding psychiatric problems, which included a past history of psychiatric hospitalization and threats to commit suicide. In particular, during the visit to L.B.'s home, a caseworker found the house to be in "great disarray," with a pervasive smell of cat urine. DYFS learned that in 1997, when L.B. was fourteen years old, she had been admitted to a psychiatric facility following an overdose of Prozac. In the next five years, she was admitted to the psychiatric unit of the University of Medicine and Dentistry of New Jersey (UMDNJ) on two other occasions, due to suicide attempts. Since 1997, L.B. had been treated with numerous medications to treat her depression and her psychotic symptoms, including Risperdal, Paxil, Prozac and Zoloft.
DYFS also learned that L.B. had a history of fire setting, the last one having occurred in 2000. DYFS also discovered that a month earlier, in September 2002, L.B.'s cousin reported to police that L.B. had threatened to jump in front of a moving train to commit suicide. When Dunellen police responded to the train station, they found L.B. on the platform. The police immediately transported her to a crisis center for a psychiatric evaluation, which resulted in L.B. being referred to the University of Medicine and Dentistry of New Jersey (UMDNJ) partial hospitalization program, and being prescribed anti-psychotic medication.
Finally, DYFS confirmed that L.B. had never taken K.B. to a pediatrician for periodic examinations. Consequently, K.B. had received none of the immunizations that infants ordinarily receive at his age. When asked to explain what appeared to be K.B.'s significant discomfort in both ears, L.B. responded that she lacked health insurance, and could not afford to take him to the doctor. She also claimed to have lost her own birth certificate and social security card, which prevented her from applying for the public assistance that would have entitled her to free medical care for K.B.
With the assistance of DYFS, L.B. was approved for Medicaid in February 2003; however, she did not obtain pediatric care for K.B. Nor did she attend the counseling sessions at UMDNJ or take her prescribed medication.
L.B.'s personal circumstances, and her ability to care for K.B., worsened considerably in May 2003, when L.B.'s grandmother, with whom she and K.B. had been living, was killed in a car accident. A staff member of the CARRI Parenting Program, which had been working with L.B., observed L.B. to be extremely depressed. She also expressed concern for the well-being of K.B., who, by this time more than a year and a half old, was still unable to say even "momma." The worker from CARRI also observed K.B. putting things from the dirty floor into his mouth. She reported that the only food L.B. had available for K.B. was dry breakfast cereal. Had the worker not provided L.B. with dinners for K.B., the child would have been forced to subsist on cereal alone.
Due to her grandmother's death, L.B. was forced to vacate her grandmother's home, as the property was in foreclosure, and a lockbox had been installed on the door, preventing L.B. from entering the home. L.B. arranged to stay at a friend's home for one night. The next day, she was homeless. In June 2003, a DYFS caseworker attempted to assist L.B. in finding housing, but was unable to maintain contact with L.B., as L.B.'s voice mailbox was full and no messages could be left.
On July 7, 2003, DYFS conducted an emergency removal of K.B. and placed him in a foster home, where he has remained ever since. DYFS chose not to place K.B. with L.B.'s mother, as DYFS had an active case concerning L.B.'s mother and some of L.B.'s siblings. At the time DYFS conducted the emergency removal of K.B., L.B. had no housing, no food, no money and only the clothes she was carrying. She admitted that she needed "to be on her meds" because her moods and feelings were "all over the place."
In the two-year period between July 2003 and July 2005, when L.B. gave birth to J.K., she continued to drift from place to place as she had no home of her own; and her attendance at the mental health counseling sessions that had been ordered by the judge on January 30, 2004 during a fact-finding hearing, was, at best, erratic. Specifically, during that two-year period of time, L.B. lived on and off with her mother, as well as at two different motels, and at her boyfriend's grandparents' home. Additionally, although L.B. was required to attend Richard Hall Community Mental Health Center for therapy, her therapist reported that her attendance there was sporadic, and he encountered great difficulty in even contacting her about her missed counseling sessions. Ultimately, L.B. dropped out of the program in March 2004.
Although the January 30, 2004 court order had also obligated L.B. to attend parenting classes at CARRI, she attended only half the sessions from May through September 2005. On September 30, 2005, CARRI terminated L.B. from its parenting program "due to client[`s] inability to maintain regularly scheduled appointments." The CARRI staff member assigned to L.B. commented that she was "uncertain of what is going on with this client `mentally' [because she] is beginning to give mixed messages and signs of personality disorder."
After J.K.'s birth in the summer of 2005, L.B. and J.K. lived with J.K.'s father, A.K. Toward the end of 2005, the same pattern that had emerged with L.B.'s care of K.B. began to develop with J.K. In particular, DYFS visited L.B.'s and A.K.'s home in response to a December 2005 referral from a neighbor, who reported that their apartment was filthy, with garbage on the floors, dirty dishes all over the apartment and a persistent smell of vomit.
When DYFS responded to the apartment to investigate, no vomit was observed on the floors, but the smell was everywhere. When asked, L.B. was unable to provide any explanation for the odor. The worker also reported that with clothing, dirty dishes and garbage strewn throughout the apartment, she was unable to see some of the furniture. The worker also noted that as soon as J.K. became mobile, the apartment would present a serious risk to his health and safety. At the time, he was only six-months old.
A follow-up visit on January 9, 2006 revealed that, even though DYFS had issued a warning to L.B. about the condition of her apartment, the situation had actually worsened. J.K.'s swing and highchair were "inaccessible for use" due to the amount of clutter and debris on them. The home was also infested with insects, and the worker observed what appeared to be insect bites on J.K.'s left leg. DYFS returned to the apartment on two subsequent occasions in January 2006, again finding the home in disarray, and on one of the two occasions, finding a row of three open baby food jars on the kitchen counter with green and white mold at the top of each jar. The kitchen sink was obscured by the enormous pile of dirty dishes, and the bedroom floor was cluttered with clothing and other items.
At this juncture, DYFS had not yet filed the guardianship complaint that is the subject of this appeal. Instead, DYFS had been granted care and supervision of both children pursuant to
Over the next six months, DYFS learned that L.B. had been failing to appear for her scheduled mental health counseling, and had not been taking her prescribed psychiatric medication. At an October 26, 2006 fact-finding hearing, at which L.B. did not appear, the judge found that L.B.'s failure to take the prescribed medication, and engage in the required mental health counseling, had placed J.K. at risk of harm. On February 21, 2007, when L.B. again failed to appear at the court hearing without explanation, the judge ordered DYFS to conduct an immediate investigation to determine whether J.K. was safe, and if not, ordered the Division to remove J.K. from L.B.'s custody. On February 26, 2007, after DYFS learned that L.B. had failed to keep J.K.'s immunizations current, DYFS substantiated medical neglect and removed J.K. from L.B.'s custody. DYFS placed him in the same foster home as his older brother K.B., where they remained until trial.
DYFS conducted evaluations of J.K. and learned that he, like his older brother, had special needs, which included social, language and gross motor delays that required early intervention services. At the time of his placement with the foster parents, when he was twenty months old, J.K. was non-verbal, not walking and suffered from pronounced repetitive hand movements.
L.B. continued to decline. She was incarcerated from April 14 through June 8, 2007 for violating her probation on a 2006 conviction for receiving stolen property. Moreover, although the September 2006 KLG order afforded L.B. the opportunity for visitation with K.B., she made no effort to see him during the six-month period after the KLG visitation order was entered. She visited with J.K. on a supervised basis, very infrequently.
L.B. experienced further psychiatric hospitalizations. She was admitted to Somerset Medical Center in July 2007 after attempting suicide by overdosing on a bottle of Tylenol. L.B. reported that she had consumed the "whole bottle" because she was "distressed . . . about not having her kids." She was also psychiatrically hospitalized in September 2007 for two weeks at the 5 West Facility at Somerset Medical Center, and again in October 2008 at the Princeton House Facility, all within a year of the start of the termination trial. L.B. was transferred from Princeton House to Trenton Psychiatric Hospital in November 2008. L.B.'s contact with the criminal justice system continued to be problematic, as she was incarcerated in the Somerset County Jail from October 2008 through February 2009.
In March 2008, DYFS dismissed its earlier care and supervision complaint, and instead filed a guardianship complaint for J.K. The complaint was amended to include K.B. four months later in July 2008.
At trial, which began on July 29, 2009 and continued for six days through September 30, 2009, DYFS presented four witnesses. First was Margie Ferguson, a DYFS caseworker who described L.B.'s long history of non-compliance with offered services, as well as her unstable living arrangements, numerous recent psychiatric hospitalizations, history of mental health problems dating back to her teenage years, and numerous periods of incarceration. Ferguson also commented on L.B.'s failure to visit with her children, and the period of years that had elapsed without L.B. seeing K.B. She also described the additional challenges presented by each child's developmental delays and special needs, commenting that if L.B. had not been able to be consistent and compliant with obtaining services for herself, it was highly doubtful that she would be able to attend to her children's needs.
Next, DYFS presented the testimony of L.B.'s probation officer, Lorena Duque, who testified to L.B.'s numerous failures to report to probation as required, and her resulting incarceration. Duque commented that because L.B. continued to be non-compliant, there was a distinct possibility she would be forced to file yet another petition alleging a violation of probation.
The Division's next witness at trial was psychologist Dr. Alan Gordon, who had conducted two psychological evaluations of L.B. and a bonding evaluation of L.B. and both children. He commented that at the time his May 12, 2008 evaluation was conducted, L.B. had not been visiting with K.B. at all, and her visitation with J.K. "was pretty sporadic." Before describing the results of his bonding evaluation, Dr. Gordon explained J.K.'s special needs, and noted that the child was receiving "12 hours of treatment a week," which included occupational, physical and speech therapy. Dr. Gordon also noted that one of J.K.'s feet "was turned inward and [was] underdeveloped, [the] left side of his body was weak, and he has an aide 12 hours a week." Dr. Gordon also observed that the older child, K.B., "also was special needs" with "a full-time aide." Dr. Gordon opined that L.B. had little or no insight into the special needs of her children, and the enhanced responsibility she faced in rearing them.
Dr. Gordon doubted L.B.'s ability to attend all of the consultations, evaluations and therapy appointments that both of her children clearly needed. He stated:
When asked to describe the relationship that both children had with their foster parents, Dr. Gordon stated:
As to the extent of K.B.'s and J.K.'s bond with L.B., Dr. Gordon first observed that although J.K. positioned himself next to his mother during the evaluation and remained there for the entire session, K.B. was much more distant, choosing to go to the opposite side of the table and never left that position. As far as physical contact [between K.B. and L.B.], "[t]here was none." Dr. Gordon commented that when the boys used the term "mom," they were referring to their foster mother. He opined that although J.K. "had more of a comfort level with [L.B.] than [K.B.] did," the bond between both children and L.B. was "an insecure bond" that did not go beyond "a comfort level." In contrast, he described the relationship of K.B. and J.K. with their foster parents as a "secure bond." He opined that K.B. and J.K. should not be removed from their current placement.
Last, Dr. Gordon was asked to describe what the ramifications would be if K.B. and J.K. were to be returned to L.B.'s care. He responded:
The final witness presented by DYFS was Karen Gilmurray, a therapist from the Moms, Pops and Tots Parenting Program. Gilmurray testified about the parenting skills sessions she conducted with L.B., describing the deficits in L.B.'s "ability to follow through [and] her ability to . . . be a productive parent."
L.B. presented three witnesses. First was Carl Menzies, from Youth Services, who described his observations of the visitation sessions between L.B. and her children. He remarked that the visits were positive in tone, and that L.B. never did or said anything that was inappropriate during the visitation sessions.
Next was R.C., who was L.B.'s fiancé and the father of her third child.
L.B.'s final witness was Dr. Donald Franklin, a psychologist who had evaluated L.B. and treated her for a period of time. Dr. Franklin testified about the results of the psychological and bonding evaluations he conducted on July 8, 2009. When asked if the children have bonded with L.B., he opined that "they were attached to her, that they clearly interacted with her positively, were very comfortable with her care, [and] connected to her in the session."
Dr. Franklin expressed his disagreement with the opinions rendered by Dr. Gordon, and found that there was a bond between L.B. and the children. He concluded that L.B. was "stable enough to be considered a fit parent, but all of the reports and her history indicate[d] that she[] had a lack of stability over time in the past." He suggested a six-month period with extended parental responsibilities to "assess whether she is capable of parenting." Dr. Franklin expressed a preference for encouraging the parent/child relationship over termination of L.B.'s parental rights, and opined that K.B. and J.K. would experience emotional loss if termination were to occur.
At trial, DYFS moved to admit in evidence the written reports of numerous other experts who had conducted psychological evaluations of L.B. or who had performed bonding evaluations. Those experts included, Alexander Iofin, M.D., Margaret Doherty DeLong, Psy. D., Rhonda W. Rapps, Psy. D., Peter DiNigris, Psy. D. and Alan J. Lee, Psy. D. L.B. objected to the admission of these reports because they "contained multiple levels of hearsay and the conclusions in the report[s] are based on multiple levels of inadmissible hearsay in general."
The judge overruled the objection, concluding that because the reports had been prepared by experts serving as consultants to DYFS, they were admissible pursuant to
In a forty-two page written opinion issued on April 23, 2010, the judge found that the Division had proven, by clear and convincing evidence, all four prongs of the best interests of the child test, and issued a judgment terminating L.B.'s parental rights. Judge Marino found DYFS satisfied the first prong of
The judge also found that DYFS satisfied the second prong, that L.B. is unable or unwilling to eliminate the harm she has caused K.B. and J.K., and delaying permanency will add to the harm the children have already endured. In particular, the judge found that L.B. had been "unable or unwilling to comply with services provided to her." Although L.B. has "sporadically engaged in the services," Judge Marino found that L.B. "failed to complete a single program in the six and one-half years of the Division's involvement with her." L.B. failed to obtain the required treatment and services, and at times was out of contact with the Division. L.B.'s "parenting deficits and psychological impairments have not been remediated despite six years of services including mental health treatment, parenting skills training and medication monitoring."
Judge Marino also found DYFS satisfied the third prong, that the Division had made reasonable efforts to provide L.B. with services aimed at eliminating the harm she caused K.B. and J.K., and no alternatives to the termination of L.B.'s parental rights existed. The judge observed that DYFS had offered L.B. supervised parenting time, psychiatric treatment and counseling, parenting skills training, and medication monitoring. L.B. had been provided with "numerous and updated psychological and psychiatric evaluations" and referred for treatment at Richard Hall Community Mental Health Center. DYFS had also provided L.B. transportation and housing assistance. Moreover, the Division agreed to KLG for K.B. as an alternative to termination of L.B.'s parental rights, but L.B. "did not visit with K.B. for one and one-half years," prompting the Division to seek a termination of her parental rights.
Finally, DYFS satisfied the fourth prong, that the termination of L.B.'s parental rights would not do more harm than good. The judge found that K.B. and J.K. would suffer enduring harm if separated from their foster parents, and L.B. lacked the ability to abate such harm. The judge found from the reports of both Dr. Gordon and Dr. Franklin "that a secure, positive bond and emotional attachment exist[s] between the foster parents and the children." Judge Marino concluded that "there would be significantly less harm to the children in severing [L.B.]'s parental rights than in terminating the children's relationship with their foster parents."
On appeal, L.B. argues:
II.
Due to the fact-sensitive nature of family cases in general and parental rights cases in particular, the scope of our review of the findings of fact made by a trial judge is limited.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected."
In a termination case, "[t]he burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child."
New Jersey courts follow a four-part standard in a termination case, as articulated in
These four statutory criteria 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."
As to the first prong, we are satisfied that L.B. has endangered the safety, health and development of each of her two children by virtue of her repeated absence from their lives while incarcerated and while undergoing repeated psychiatric hospitalizations. In addition, she endangered the well-being of K.B. by how she handled her homelessness, depriving him of the stability and safety to which a young child is entitled. Additionally, she subjected K.B. to a significant medical and health risk by virtue of her failure to take him to a pediatrician for the first fifteen months of his life, and her failure to provide him with any food but cereal. She also endangered K.B.'s safety and health by living in an environment pervaded, at various times, by the smell of cat urine and vomit. As to J.K., the record demonstrates that L.B. endangered his health by failing, as she had also done with K.B., to keep his immunizations current. The record demonstrates that DYFS amply satisfied the first prong of the statute.
Addressing the second prong, we are satisfied that L.B. is unable or unwilling to eliminate the harm she has caused her children and that delaying permanency will add to the harm the children have already endured. L.B. failed to complete her mental health treatment at the Club, failed to take her prescribed anti-psychotic medication and failed to complete the parenting classes that Judge Marino ordered. She also lacked understanding of her sons' developmental delays and how to parent both children, who have significant special needs. Having been offered the tools by which to potentially achieve reunification with her two children, L.B. chose not to avail herself of those opportunities. Moreover, her unwillingness to make the effort to visit with her children when offered the opportunity to do so by DYFS also establishes that she is either unable or unwilling, or both, to eliminate the harm she has caused her children. We are therefore satisfied that the first portion of the second prong was satisfied.
As to the second portion of that prong, we are satisfied, especially from the testimony of Dr. Gordon, that any further delay in permanent placement will add to the harm facing K.B. and J.K. As Dr. Gordon so poignantly explained, both children have significant special needs involving developmental delays, speech impairments and, in the case of J.K., a significant physical disability. Delaying permanency for these fragile children will needlessly delay the special attention they both require. We are satisfied that DYFS established by clear and convincing evidence that any delay in placement would exacerbate the harm facing these two children.
Turning to the third prong, we are satisfied that DYFS made reasonable efforts, indeed more than reasonable efforts, to provide L.B. with services aimed at eliminating the harm, and that no alternative existed to the termination of her parental rights. The Division offered L.B. numerous referrals to treatment programs and individual counseling, and provided transportation services, housing assistance and parenting classes. She completed none of the programs, leading to the refusal of many of these clinicians to continue to offer her any further treatment. In addition, DYFS arranged numerous visits between L.B. and her children, but she chose not to avail herself of the chance to see her own children. Therefore, we are satisfied DYFS made reasonable efforts to provide L.B. with services aimed at eliminating the harm facing K.B. and J.K.
We are also satisfied that, under the second part of the third prong, no alternatives existed to the termination of L.B.'s parental rights. In particular, L.B.'s own mother was ruled out as she had been the subject of a DYFS investigation concerning some of her other children, who were L.B.'s siblings. L.B.'s grandmother had died by the time this matter came to trial, and no other relatives were proposed. The record also establishes that DYFS initially sought and obtained KLG as an alternative to the termination of L.B.'s parental rights, but the KLG attempt failed when L.B. did not visit K.B. for one and one-half years. Therefore, Judge Marino correctly concluded that no alternatives existed to the termination of L.B.'s parental rights.
As to the fourth prong, the testimony of Dr. Gordon demonstrates by clear and convincing evidence that L.B. has failed to establish a parent-child relationship with her children and therefore termination of her parental rights to them will not do more harm than good. This is especially so in light of the positive, nurturing and supportive relationship the children have developed with their foster parents, the rupturing of which will cause them significant harm. As was Judge Marino, we are satisfied, based upon the record, that termination of L.B.'s parental rights will not do more harm than good.
The judge carefully reviewed the evidence presented by DYFS, and concluded that DYFS satisfied, by clear and convincing evidence, all the legal requirements for an order terminating L.B.'s parental rights. Her opinion tracks the statutory requirements of
We turn to Point II, in which L.B. maintains that the judge committed reversible error when she agreed to admit in evidence the reports of non-testifying Division experts.
We are satisfied that the reports by Drs. NeNigris, Lee and Iofin, who did not testify at trial, fully satisfied these standards. Moreover, Judge Marino agreed not to consider any embedded hearsay in these reports. If there was any error, it was harmless, as DYFS established its case by clear and convincing evidence even without consideration of the conclusions of Drs. DeNigris, Lee and Iofin.
As for the speech therapy notes, the record demonstrates that the judge did not consider any embedded hearsay, but merely used them for the limited purpose of establishing that K.B. was provided with speech therapy on the dates in question.
As we have noted, L.B. principally argues that despite the judge's assurances to the contrary, she did consider the embedded hearsay. L.B. points to one sentence in Judge Marino's forty-two page written opinion where the judge found Dr. Iofin's "unrebutted psychiatric opinion compelling." This one sentence in a lengthy opinion does not demonstrate that Judge Marino considered embedded hearsay when she made her factual findings at trial. We therefore reject the claim L.B. advances in Point II.
Affirmed.
