New Jersey Div. of Youth and Family Services v. B.G.S.

• Decision Date: 01 July 1996
• Citation: 291 N.J.Super. 582,677 A.2d 1170
• Parties: NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. B.G.S., Defendant-Appellant. In the Matter of the GUARDIANSHIP OF M.A.S., a minor.
• Court: New Jersey Superior Court — Appellate Division

Page 582

291 N.J.Super. 582

677 A.2d 1170

NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. B.G.S., Defendant-Appellant In the Matter of the GUARDIANSHIP OF M.A.S., a minor.

Superior Court of New Jersey Appellate Division.

Argued May 20, 1996.

Decided July 1, 1996.

Philip Harrison, West Orange, for appellant (Sachs, Maitlin, Fleming, Greene & Wilson, attorneys; Mr. Harrison, on the brief).

Magali M. Francois, Deputy Attorney General, for respondent (Deborah T. Poritz, Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Francois, on the brief).

James B. Boskey, Law Guardian, Newark, for M.S. (Seton Hall University School of Law, Family Law Clinic, guardian ad litem).

Before Judges PETRELLA, SKILLMAN, and EICHEN.

The opinion of the court was delivered by

PETRELLA, P.J.A.D.

B.G.S. challenges an order of the Chancery Division, Family Part, which terminated her parental rights as natural mother to her son, M.A.S. The order, prompted by an application made by the Division of Youth and Family Services (DYFS), conditioned the termination upon visitation between B.G.S. and M.A.S. until the initiation of adoption proceedings, at which time B.G.S. was to be given notification to permit her to pursue post-adoption visitation. ¹ Although B.G.S. concedes her inability to care for M.A.S. and seeks neither removal of her son from his legal guardian nor interference with his custody, she asserts that the statutory criteria for termination were not satisfied by clear and convincing evidence. DYFS cross-appeals nunc pro tunc to strike from the orders any mandated post-termination visitation or notification provisions. ²

Our review of the record in light of the arguments presented satisfies us that there is overwhelming evidence supporting the propriety of the termination order. The conditions imposed in that order relating to post-termination visitation and notification of adoption are, however, in contravention of applicable law and are thus stricken.

B.G.S. was forty-two years old in 1994 when the DYFS complaint for termination of her parental rights proceeded to trial. She had abused drugs and alcohol since she was thirteen; her longest period of sobriety had been one year. Her first hospitalization for mental illness occurred at seventeen. She now suffers from bipolar disorder and polysubstance dependence. M.A.S.'s father, A.R., has apparently shared a history of substance abuse as well.

DYFS first became aware of M.A.S. when his paternal grandfather reported on December 19, 1988, that B.G.S. had left M.A.S., her one-month-old infant son, ³ alone in her Irvington apartment and had travelled to the grandfather's South Orange home without either a coat or shoes. As there was no family member able to care for M.A.S., B.G.S. voluntarily placed him into foster care and sought hospitalization for herself. B.G.S. regained custody of M.A.S. on October 17, 1989, when he was eleven months old.

On April 17, 1990, B.G.S. contacted DYFS to report that A.R. had physically abused her and her son. In addition, B.G.S. stated that M.A.S. may have been sexually abused, either by his baby-sitter or A.R. During a DYFS investigation, the baby-sitter reported that B.G.S. had been abusing drugs and that M.A.S. had been poorly clothed, dirty, and smelly. B.G.S. was later apprehended by Summit police while she was driving eastbound in the westbound lanes of Route 24 with M.A.S. in the back seat. She had apparently suffered an acute incidence of substance abuse. When A.R. declined to care for M.A.S., DYFS again took custody of the child on July 29, 1990.

B.G.S. was initially permitted supervised overnight visitations with M.A.S. in his paternal grandmother's home. At first, he had difficulty during and in concluding these visits, throwing tantrums and pulling out his own hair. On one occasion, he had returned with bruises that appeared not to have been accidental but were nonetheless possibly attributable to his grandmother's attempts to restrain him during those tantrums. These home visits eventually ceased after M.A.S.'s grandmother declined further supervision following A.R.'s attempt to break into her home while intoxicated. In any event, DYFS had already discovered that B.G.S. had circumvented supervision by taking M.A.S. to her apartment, where he was allowed unauthorized contact with A.R. M.A.S. was psychologically evaluated in foster care for tantrums, self-abusive behavior, and unprovoked aggression towards other children, the results of which indicated that he was developmentally delayed. His aggression towards other children in his first foster home caused M.A.S. to be moved to another foster home and then to an interim foster home on August 23, 1991. The record indicates that M.A.S. was placed in his current foster home on August 27, 1991, where he has since remained.

By the spring of 1991, M.A.S. had begun to flourish in foster care and to approximate normal levels for his age despite his developmental delay. In accordance with his observations of April 12, 1991, psychologist David Sard had recommended that M.A.S. could be returned to B.G.S. if she continued to progress in her treatment. In a progress report covering the period from May through August 1991, a therapist had cautiously reported progress, but had emphasized that reunification should occur only when mother and child were likely to remain together.

While M.A.S. was in foster care, B.G.S. regularly visited with him, demonstrating interest and concern for him as well as showing some improvement in her parenting skills. B.G.S. periodically participated in therapy but soon relapsed into bouts of mental illness and substance abuse. She also separated from A.R. but later resumed cohabitation with him. The record indicates that domestic violence was commonplace in their relationship. A.R. infrequently visited with M.A.S., occasionally while under the influence of an intoxicating substance. A.R. was generally uncooperative with DYFS.

Although scheduled to return to B.G.S. on December 15, 1991, M.A.S. remained in foster care because B.G.S. had relapsed into substance abuse and mental illness following her reconciliation with A.R. Indeed, M.A.S.'s therapist reported in February 1992 that he was progressing, but that B.G.S. was experiencing difficulty. DYFS then shifted its objective from reconciliation to adoption.

DYFS's expert psychologist, Frank Dyer, concluded that M.A.S. had bonded to his foster mother, that it was in his best interest not to be moved again, and that visitation with B.G.S. should therefore cease. The psychologist characterized an attempt to relocate M.A.S. as likely to be a "devastating psychological blow" of potentially permanent impact. In a June 1993 report, Dyer reiterated that it would be catastrophic to remove M.A.S. from his foster family. Dyer opined at trial that removal of M.A.S. from his foster home would likely cause "extreme psychological harm" that would be a "disaster" likely to affect his self-esteem, basic trust, and capacity to have relationships with new caretakers. The expert considered M.A.S.'s foster parents to be his "only hope for developing into a psychologically well-functioning adult."

Dyer also opined that any short-term problem posed by ending visitation with B.G.S. would not constitute a significant loss to M.A.S. According to the psychologist, it would be harmful to M.A.S. if he remained in foster care indefinitely because it promised no stability and was likely to create anxiety and uncertainty. In fact, M.A.S. had told Dyer that he wished to remain with his foster family. Although he said he would feel sad if he no longer visited with B.G.S., M.A.S. responded "maybe not" when asked whether he would like to live with B.G.S.

B.G.S.'s expert psychologist, Donald Skinner, agreed that M.A.S. had bonded to his foster family and that separation was likely to cause M.A.S. serious, long-term psychological harm. He added that separating M.A.S. from B.G.S. would similarly represent a loss, albeit not to the degree that separation from the foster family would jeopardize his mental health.

In a March 1993 psychiatric evaluation of B.G.S., Dr. Stephen Simring, a psychiatrist, concluded that B.G.S. was unable to function as a parent, but not solely because of her mental health. He determined that she was mentally capable to surrender her parental rights. An April 1994 psychiatric evaluation prepared by Dr. Ellen Platt indicated that B.G.S. was then psychiatrically stable, but involved in a highly dysfunctional relationship with A.R., with whom she still cohabitated. Platt confirmed that B.G.S. could not parent M.A.S. and that her maximal relationship with him could only be supervised visitation.

According to Platt, B.G.S. was afflicted with a bipolar disorder, manic depression, the nature of which is the unpredictability of its cycles. A person with the disorder may suddenly become psychologically unstable for no apparent reason, even if faithfully taking medication. The inherent instability of the disease is exacerbated by drug abuse. Because B.G.S. lacked a support system, Platt concluded that B.G.S. was not capable of caring for M.A.S. on a sustained basis. Moreover, she testified that B.G.S. had impaired judgment and limited ability to cope with stress.

By May 1994, A.R. was HIV-positive and had continued to abuse drugs and alcohol. B.G.S. nevertheless justified her continued cohabitation with A.R. on the ground that she could not abandon him because he was sick and his family had rejected him. B.G.S. claimed that she would discontinue her relationship with A.R. if necessary to continue seeing M.A.S. B.G.S. admitted, however, that DYFS had always made it clear to her that she could not regain custody of M.A.S. so long as she cohabitated with A.R. Furthermore, B.G.S. conceded that she could not parent M.A.S. and offered no plan for M.A.S....