Opinion
DOCKET NO. A-4216-14T1 DOCKET NO. A-5006-14T1
04-12-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.S.S. and A.W., Defendants-Appellants, and C.H., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.N.S., K.R.S. and Z.L.W., Minors.
Eric R. Foley, Designated Counsel, argued the cause for appellant A.W., Docket No. A-4216-14 (Joseph E. Krakora, Public Defender, attorney; Mr. Foley, on the briefs). Amy Kriegsman, Designated Counsel, argued the cause for appellant K.S.S., Docket No. A-5006-14 (Joseph E. Krakora, Public Defender, attorney; Ms. Kriegsman, on the briefs). Erin Marie Greene, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greene, on the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for the minor J.N.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for the minors K.R.S. and Z.L.W. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0136-14. Eric R. Foley, Designated Counsel, argued the cause for appellant A.W., Docket No. A-4216-14 (Joseph E. Krakora, Public Defender, attorney; Mr. Foley, on the briefs). Amy Kriegsman, Designated Counsel, argued the cause for appellant K.S.S., Docket No. A-5006-14 (Joseph E. Krakora, Public Defender, attorney; Ms. Kriegsman, on the briefs). Erin Marie Greene, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Greene, on the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for the minor J.N.S. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief). Caitlin McLaughlin, Designated Counsel, argued the cause for the minors K.R.S. and Z.L.W. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. McLaughlin, on the brief). PER CURIAM
Defendant, K.S.S., appeals from a May 4, 2015 judgment of guardianship terminating her parental rights to her daughter, J.N.S., and her two sons K.R.S. and Z.L.W., and placing them in the custody of the Division of Child Protection and Permanency (Division).
The Division's involvement with the family began prior to the passage of the June 29, 2012 legislation, which changed the name of the Division of Youth and Family Services to the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)). To avoid confusion, we refer to the Division by its current name.
Defendant, A.W., appeals from the provision of the same judgment terminating his parental rights to Z.L.W. Both defendants contend the Division failed to prove by clear and convincing evidence terminating their parental rights was in the children's best interests, as required in N.J.S.A. 30:4C-15.1(a). After reviewing the evidence presented to the trial court, and in light of the controlling legal standards and arguments presented, we affirm the judgment terminating K.S.S.'s parental rights to the three children, but reverse the judgment terminating A.W.'s parental rights to his son Z.L.W.
Z.L.W. was the child of both defendants. The other two children had two different fathers whose parental rights were terminated by default judgments that were not appealed.
I. DEFENDANT K.S.S.
We affirm the order as to K.S.S. substantially for the reasons expressed by the trial judge. We add only the following comments.
We are satisfied that, beginning with the Division's involvement with defendant in 2010, and continuing up to and including the commencement of the trial in May 2015, K.S.S. was unable to overcome the serious problems that render her unable to safely parent her three children. K.S.S. has a history of mental illness requiring inpatient hospitalizations. At the time of the trial, she was committed to a psychiatric institution. She has been hospitalized and treated for psychosis and seizures, and suffers from long term chronic problems with alcohol and drug abuse. In addition, she has a history of unstable and volatile relationships involving domestic violence. She has subjected her children to risk of harm because of these unstable relationships. Significantly, the Division clearly and convincingly, if not irrefutably, demonstrated K.S.S.'s inability to provide for the basic needs of the three children including adequate food and a sanitary shelter.
The Division obtained custody of the three children in September 2012. During the eight months prior to that order, the Division offered services to K.S.S. However, she did not take advantage of the services offered to her, which included an outpatient substance abuse program and a parenting skills class. She also tested positive for illegal drugs during that time. At a fact-finding hearing in November 2012, the court found K.S.S. had abused and neglected her children pursuant to N.J.S.A. 9:6-8.21(c). Up to the date of the trial K.S.S. infrequently visited her children, failed to take advantage of offered services and, for periods of time, was out of contact with the Division. At one point she was incarcerated for approximately one month. On more than one occasion she was discharged from shelters for abused women because of her lack of cooperation with their rules. She missed multiple court conferences as well as the termination trial itself because of her numerous personal problems.
The credible evidence demonstrates K.S.S. lacks the capacity to care for these three children, and unfortunately is incapable of providing them with a safe, stable, and permanent home.
K.S.S. has a fourth child with a fourth father. That child was removed from her and placed in the custody of the Division a few months after birth. The fourth child is not a party to this action. Separate court proceedings have been initiated by the Division as to the future of the baby.
The children did reside together with a resource parent. Unfortunately, the resource family declined the option of adopting the children. It is unclear whether the children will be able to remain together if adopted, although the Division plans to make every effort possible to have the children adopted. Pursuant to R. 2:6-11(f), we learned on March 31, 2016, due to their resource parent's illness, the children were separated and placed in three different resource homes.
At the conclusion of the trial, the court concluded that the Division had met, by clear and convincing evidence, all of the legal requirements for a judgment of guardianship. The trial court's oral opinion tracked the statutory requirements of N.J.S.A. 30:4C-15.1(a) and was supported by substantial credible evidence in the record. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We therefore affirm the judgment as to K.S.S.
II. DEFENDANT A.W.
Based on the evidence in the record, A.W. had a troubled start as a parent and initially demonstrated little ability or desire to care for his son, Z.L.W. The Division first had contact with A.W. in October 2011. At that time, Z.L.W. was approximately fifteen months old. It was reported that A.W. struck K.S.S., causing her to fall down a set of stairs with Z.L.W. in her arms. Following a fact-finding hearing, the court found A.W. had placed his son at a substantial risk of imminent harm even though the child was not injured. That finding was affirmed on appeal.
A.W. underwent a psychological evaluation with Dr. Leslie F. Williams in 2011, where he acknowledged he was dyslexic and illiterate. He was receiving Social Security Disability. A.W. questioned whether he was Z.L.W.'s biological father. The doctor issued a report concluding that A.W. "is not capable of providing adequate parenting." He found that A.W. had very limited involvement with his son and "does not seem particularly interested in him based on his current actions/behavior." Subsequently, A.W. obtained paternity testing, confirming he was Z.L.W.'s father. In September 2012, the Division removed the children from the home of K.S.S. The Division subsequently offered services to A.W. as well as K.S.S. There is a dispute as to whether A.W. attended initial parenting classes and therapy, but there is no dispute that starting in 2012, A.W. visited with his son, took advantage of offered services, and attended the case management conferences throughout the pendency of this litigation. There was no evidence of drug and alcohol abuse or any violent behavior by A.W. after 2011.
The court agreed the opinion of Dr. Williams would not be used as evidence of fitness of A.W. as a parent at the termination trial. Dr. Williams was not called as a witness. Her report is relevant only to show the history of the Division's prior services.
In September 2013, the Division filed a complaint to terminate the parental rights of A.W. to Z.L.W. In October 2013, the court held a case management conference without the presence of A.W.'s counsel. The court ordered A.W. submit to psychological and bonding evaluations. A.W. was also ordered to provide a copy of his lease and information about his cousin-roommate in order to assess A.W.'s living conditions.
On January 28, 2014, the court conducted a case management conference. A.W. was present with counsel and had completed all recommended services except his psychological evaluation. He was ordered to cooperate with the Division to obtain the assessment.
By March 2014, the apartment had been assessed, but the cousin-roommate would not agree to be fingerprinted. The court ordered A.W.'s psychological evaluation be rescheduled as there was confusion about the originally scheduled date. In May 2014, the court advised counsel if A.W. did not attend a psychological evaluation, he would be barred from presenting expert testimony at trial. At this hearing, the judge told A.W. "the only barrier" between him and his son was his housing situation. A.W.'s cousin agreed to a home inspection and provided all necessary information to perform state background checks in New Jersey, which revealed no problems. However, the cousin continued to refuse to be fingerprinted and as a result, the Division did not allow Z.L.W. to move into his father's home. Division's counsel stated:
And I would just like to reiterate to [A.W.], really this is the only barrier that we have. He has completed all services. The Division was, the assessment was, or the home was big enough. The Division was willing to move forward with placing [Z.L.W.] there, we just couldn't get the fingerprints of the cousin.
At the next conference in July 2014, the court barred A.W. from presenting expert testimony at trial since he had missed three scheduled psychological evaluations, although it is unclear why there was confusion as to the first date. By then, A.W. had moved and was living with his mother. The Division advised the court this was not acceptable housing for the child because A.W.'s mother had a case with the Division when A.W. was a child. No evidence of any background investigation or screening of the mother was presented to the court. The court was advised by the Division's counsel that she "believed" his mother had some type of "Division history," but no details were provided.
The Division acknowledged it did not do an assessment of A.W.'s mother, or other paternal family members as possible resource parents, claiming A.W. had not requested any of his family be evaluated. A.W.'s counsel advised the court A.W. was looking for housing assistance through section eight. But the Division did not offer assistance to help A.W. obtain housing at the court conferences. The Division did send one letter on his behalf to a housing authority.
The next case management conference was held in September 2014. It was also a permanency hearing. No one testified. The Division's counsel asked the court to approve the Division's plan to move toward adoption of all three children within six to nine months. Counsel for the Division advised the court that A.W. had completed parenting classes, but did not have stable housing, and reiterated he had missed three appointments for a psychological evaluation.
A.W.'s counsel objected to the plan and stated his client was visiting his son and had complied with all requests except for the psychological evaluation because he had no transportation and no phone. He asserted his client was willing to be evaluated and was looking for housing. The Division's counsel stated A.W. had missed some visits with his son because he had no transportation. The Division agreed to give him bus tickets for future visits. The court approved the permanency plan.
A.W.'s counsel requested another opportunity for an evaluation and asked the court if the Division could provide his client with transportation. The court granted defendant "one more chance," but ordered the defendant would be barred from calling an expert at trial if A.W. was not evaluated.
At the October 2014 conference, the Division advised the court that an evaluation of defendant had been rescheduled for November and the Division would notify him when it confirmed the dates. There was no mention of transportation being provided for A.W. to get to the evaluation despite his counsel's previous request. The record reflects that bus tickets were supplied by the Division to A.W. to visit his son. A.W. was no longer living with his mother. He still did not have what the Division considered appropriate housing and was described as "transient."
At a December 2014 pretrial conference, the court was advised by the Division that neither defendant had appeared for their "third and final evaluation." It is unclear if a re-evaluation had actually been confirmed for November since there were three evaluations missed before the October conference. At oral argument on appeal, counsel for A.W. asserted his client was never given the last chance for a psychological evaluation as promised to him in October 2014 by the court, and that the Division should have rescheduled him and arranged for transportation.
The law guardian for Z.L.W. expressed his concerns at the conferences about the children not being placed in a home where they could be adopted. In December 2014, counsel for Z.L.W. asked if the Division was actively seeking an adoptive home and if the children were going to be kept together. The Division caseworker stated "[t]hat is what we were hoping except for [Z.L.W.]. We were hoping that he could go with dad, but we do wish to keep them together." It was agreed no party would be calling experts at trial except for a possible expert from the Division to testify that children had a better chance of adoption and permanency after the parental rights were terminated. The trial date was scheduled for March 13, 2015.
We received notice after oral argument that the resource parent was now ill and the children had been sent to three separate homes. --------
The Division requested an adjournment because the mother was hospitalized after giving birth to her fourth child. The Division requested a chance to get a psychological evaluation of K.S.S. before proceeding with trial. No mention was made of an evaluation of A.W., and all parties agreed with the request for an adjournment.
The termination of parental rights' trial was held on May 4, 2015. The Division offered into evidence ninety-five exhibits. Counsel objected to the expert report of Dr. Williams being admitted into evidence, and the court ruled it would be admitted only to demonstrate whether diligent efforts to extend services to A.W. had been made by the Division. The court further stated that any embedded hearsay in any of the exhibits would not be considered as evidence.
The Division caseworker, Latoya Bowers, and A.W. were the only two witnesses who testified. The testimony by the caseworker substantially tracked the same information that had been presented at the prior conferences. A.W. had been substantiated for abuse and neglect as a result of the domestic violence incident where K.S.S. was caused to fall down stairs while holding Z.L.W. in her arms. A.W. had successfully completed all training services offered him including courses on domestic violence, anger management, and parenting skills. The caseworker testified the Division had been prepared to allow Z.L.W. to live with his father except for the cousin failing to provide his fingerprints. After A.W. moved to his mother's home, the Division would not assess her because A.W. advised them she was involved with the Division when he was a child. Bowers testified there were three psychological evaluations scheduled for A.W. which suggests that the "last chance" evaluation was never confirmed as promised.
The caseworker stated that Z.L.W. "would love to go with his father" when asked about the children's preferences. In response to a question from Z.L.W.'s counsel as to whether the only thing preventing Z.L.W. from being with A.W. was "housing," the caseworker answered "correct."
A.W. testified he wanted to care for Z.L.W. He described completing all courses offered by the Division. He testified he was receiving Supplemental Security Income checks monthly and applied for Section 8 housing after the December 2014 conference, but was unsure whether he would get assistance. He had made other efforts to get housing, but was turned down because of the prior domestic violence finding against him.
A.W. testified he and his son had developed a "strong bond," and that Z.L.W. cries when their visits conclude. Finally, he testified he was trying to improve himself for his son and was going to a class every Wednesday at Seton Hall College to learn how to read. He testified he was dyslexic and still reading children's books, but had improved to a fifth grade level. When asked if he could take all three children, he testified he could not, but when asked if he would allow his son to visit with his half-siblings, he said that would be "great." He also stated he was aware of his responsibility to keep his son in school and involved in activities.
At the conclusion of the two-hour hearing and a short break, summations were given and the judge ruled from the bench. He terminated A.W.'s right to his son because he did not have stable housing and had not attended a psychological examination even though three were scheduled. The judge found the Division proved their case by clear and convincing evidence. We conclude the court's decision is not supported by the evidence.
We set forth some of the well-known principles that guide our review. "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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). "The focus of a termination-of-parental-rights hearing is the best interests of the child," and the Division must "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. Those statutory factors are:
(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.
[N.J.S.A. 30:4C-15.1(a)(1)-(4).]
The four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (emphasis omitted) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)).
On appeal, defendant and the law guardian for Z.L.W. urge us to vacate and reverse the order of termination, arguing the Division did not prove any of the four prongs by clear and convincing evidence. Defendant argues that he is being separated from his son only because his poverty has resulted in his not being able to secure independent housing. He recognizes his limitations due to his dyslexia and lack of education, but claims he has been making consistent efforts to remedy these deficiencies so he can provide the parenting Z.L.W. needs.
We have examined the credible evidence in the record and the application of the governing law concerning each prong of the "best interest" standard. As to the first prong, though there had been one episode of domestic violence when A.W. put his child at risk of harm, it happened years before the trial. A.W. completed all courses offered to him to address his conduct. The testimony revealed only positive interactions between A.W. and his son during their frequent visits. Thus, though the Division had proved a single, old incident of endangerment, the time lapse and defendant's intervening compliance with Division services appeared to render the limited evidence supporting this factor to be less than clear and convincing.
The Supreme Court has previously stressed: "Parents are not to be adjudged unfit because they lack resources or intelligence, but only by reason of conduct detrimental to the physical or mental health of the child, specifically in the form of actual or imminent harm." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 616 (1986). We have said that "[t]he Division's efforts . . . must by their very nature take into consideration the abilities and mental conditions of the parents." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). When considering the first prong, the court's focus is not "on a single or isolated harm or past harm," but rather "on the effect of harms arising from the parent-child relationship over time on the child's health and development." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
In finding the Division had proved the first two prongs, the judge noted defendant "was substantiated back in 2011 for physical violence." The judge stated that it is impossible to know if the courses defendant completed have really taught him how to conduct himself as a father. The judge thus appeared to focus on an isolated past harm, which was not directed at Z.L.W. The judge also appeared to not consider the services the Division provided to A.W., which he completed.
The Division presented no evidence A.W. was a danger to his child or an unfit father. In fact, the Division told defendant the only thing standing between him and his child was stable housing. That position hardly squares with the court's conclusion the Division was unable, without additional evaluations, to determine if A.W. was capable of being a parent. To the contrary, it appears the Division did not believe the psychological examination was essential to determine whether A.W. was safe from a behavioral perspective, and it further appears the Division shares fault with defendant for the examination never occurring, since the Division failed to arrange transportation. It also appears both sides simply accepted the court's statement at the pre-trial hearing that neither side was presenting expert testimony at trial as to the father's fitness since the Division had represented to A.W. that housing was the only barrier to his obtaining his son. Moreover, the Division advised the court and defendant it would reschedule the examination for November 2014, and it appears the appointment was not confirmed. The court advised defendant he was being given one last chance to get the examination or he would be barred from producing an expert at trial. Defendant was never advised the failure to get the examination would prevent him from getting custody of his child even if it had been scheduled.
Regarding the second prong, we have said that "[c]oncern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009). Here, A.W. completed all courses offered by the Division and also sought out tutoring on his own so he could be a better parent.
We recognize that the second prong is also established when it is "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." K.H.O., supra, 161 N.J. at 348-49. Defendant did not succeed in finding a home for his child that the Division would approve. However, he lived for over one year in a home with his cousin that was inspected by the Division and found to be acceptable for A.W. and his son. The cousin cooperated with the Division and supplied the necessary information to do background checks on him in New Jersey. The cousin refused to get fingerprinted for the Division which the Division contends may mean he has a record in another state or in the federal system. Defendant attempted to get the cousin to cooperate, to no avail.
A.W. then moved in with his mother, but the Division would not let him take the child there because his mother had a history with the Division. The Division presented no evidence of this history, other than a hearsay statement. A.W.'s mother's home was not assessed by the Division according to the evidence in the record. Without an investigation of the mother and with no testimony about the level of her prior involvement with the Division or how the passage of time may have affected her situation the Division did not present clear and convincing evidence of the inadequacy of the shelter offered by defendant.
There is no question that defendant is both poor and uneducated, and he must be able to offer suitable shelter to obtain custody of his child, but the Division has the burden of proof by clear and convincing evidence that he cannot provide adequate housing with the assistance of the Division. It did not present such evidence.
As to defendant's housing situation, the third prong overlaps with the second prong. The Division was required to make reasonable efforts to assist A.W. in locating housing if his cousin's and mother's homes were not acceptable. N.J.S.A. 30:4C-15.1(a)(3). There is not clear and convincing evidence in the record that the Division rendered reasonable assistance to A.W. to find acceptable housing. A.W. was a single man seeking subsidized housing. The Division knew he had a small but steady stream of income, and he could live alone. A.W. is caught in a vicious cycle whereby if he had custody of his child, he would have a better chance of getting subsidized housing, but the Division required A.W. to obtain housing before he could get custody of his child. The Division provided assistance more than once to K.S.S. to obtain shelter, but the record does not include evidence that similar repeated efforts were made to assist A.W. to find housing. There was a single mention at trial that the Division offered him limited assistance by sending a letter, once, to a housing agency. Yet, the Division knew this was the only barrier preventing Z.L.W. from living with his father.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," as actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "may include consultation with the parent, developing a plan for reunification, [and] providing services essential to the realization of the reunification plan." M.M., supra, 189 N.J. at 281. We conclude the Division did not present clear and convincing evidence of reasonable efforts to assist A.W. in obtaining housing.
Returning to prong two, which also overlaps in this case with prong four, this is not a case where the child has been placed with a family that wants to adopt him. The Division made it clear the resource home was not a permanent placement. Now, the child has been separated from his siblings and moved again. The Division will make efforts to have the children adopted but it cannot guarantee adoption. The testimony of the caseworker and A.W. are consistent that Z.L.W. was not asking to stay in his resource home but asserted he wants to be with his father. It is possible Z.L.W. may be adopted, but there is not clear and convincing evidence that denying him his chance to live with his father would not do more harm than good.
For the reasons set forth, we reverse and vacate the order terminating A.W.'s parental rights to Z.L.W. The matter is remanded to the trial court for further proceedings to assess the current facts and how the reunification of A.W. with his son can reasonably be achieved, including assistance in exploring available housing options.
Affirmed as to termination of parental rights of K.S.S. to J.N.S., K.R.S., and Z.L.W. Reversed as to the order terminating A.W.'s parental rights to Z.L.W., and remanded to the trial court for further proceedings as set forth above. We do not retain jurisdiction.
Affirmed as to K.S.S., and reversed and remanded as to A.W. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION