Opinion
DOCKET NO. A-5038-14T1
04-13-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.J.B., Defendant-Appellant, and N.C. and T.R., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF T.K.B., K.H.B., and J.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-151-15. Joseph E. Krakora, Public Defender, attorney for appellant (Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Eleanor M. Armstrong, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant A.J.B. appeals from the Family Part's June 29, 2015 final judgment terminating her parental rights to her young children, T.K.B., born in November 2007, K.H.B., born in July 2011, and J.B., born in September 2013. For the reasons that follow, we affirm.
The judgment also terminated the parental rights of K.H.B.'s biological father, N.C., as well as the biological fathers of T.K.B. and J.B., who were unable to be identified.
The guardianship trial was conducted on June 29, 2015. Division of Child Protection and Permanency (Division) case manager Shante Rollins testified that she was initially assigned to the case in June 2012. Prior to her involvement, the Division had filed for care and supervision of the two older children because defendant had been noncompliant with substance abuse treatment as well as medical treatment for T.K.B., who suffered from lead poisoning.
The Division effected an emergency removal of T.K.B. and K.H.B. on June 13, 2012, due to concerns for their safety. According to Rollins, defendant had not attended her last five appointments for substance abuse treatment and had failed to remain in contact with the Division. T.K.B. and K.H.B. were placed in foster care together, and remained there until September 2013.
Also in June 2012, defendant was arrested on open warrants and for spitting on a State employee. Defendant pled guilty to assault on July 31, 2012, and remained incarcerated until December 2012. The Division arranged for the children to visit with defendant while she was incarcerated.
Following her release from custody, defendant entered a "Mommy & Me" program at Newark Renaissance House. Defendant was provided with numerous services while attending the program, including individual and group counseling; parenting skills classes; and substance abuse treatment. The Division arranged for defendant to have visitation with the children while at Renaissance House.
Defendant was evaluated by psychologist Leslie J. Williams, Ph.D., at the request of the Division in February 2013. Dr. Williams found that defendant was experiencing a moderate mental disorder. He noted that defendant was not forthcoming with the details of her current Division involvement or her noncompliance with substance abuse evaluations. Defendant expressed that her plan was to have T.K.B. and K.H.B. placed with her, but that she was unhappy in the Renaissance House program. Dr. Williams opined that defendant was "not currently capable of providing adequate parenting of her children," and her "prognosis for making and sustaining positive changes in her life . . . [was] guarded."
Defendant was referred for individual psychotherapy at the Youth Development Clinic (YDC). On February 22, 2013, defendant's counselor at Renaissance House reported that all her recent toxicology results were negative and that she had a positive attitude regarding treatment. Defendant also did well during the time she attended the YDC program. Rollins testified that it was the Division's intention to reunify defendant with T.K.B. and K.H.B. at Renaissance House. However, that did not occur because defendant was subsequently discharged for failing to follow the program's rules and regulations.
Upon her discharge from Renaissance House, defendant resided at the Real House shelter. As part of her placement in the shelter she completed an assessment by a certified drug and alcohol counselor (CADC assessment) on May 23, 2013. Based on the results of the CADC assessment, and because defendant was homeless and five months pregnant with J.B., it was recommended that she participate in another "Mommy & Me" treatment program and undergo a psychiatric evaluation.
J.B. was born in September 2013. On September 23, the court granted the Division care and supervision of J.B. The order also provided that, upon discharge from the hospital, J.B. would be placed with defendant in the CURA "Mommy & Me" program. T.K.B. and K.H.B. were also reunited with defendant in the program two days later.
During her treatment, defendant consistently tested negative for substances. However, on February 7, 2014, defendant left the CURA program and went to live with her sister. CURA referred defendant to Bethel Counseling Services to continue her outpatient treatment.
Upon her relocation, the Division and defendant entered into a case plan that required defendant to: transfer her welfare benefits to Essex County where she now resided; enroll T.K.B. in school; and schedule early intervention assessments for K.H.B. and J.B. The agreement further provided that if defendant failed to timely complete these tasks, the Division would petition the court for custody.
Defendant did not comply with the case plan and failed to maintain contact with the Division. Consequently, on March 20, 2014, the Division filed an emergency application for custody of the three children. The court granted the application, citing defendant's failure to enroll T.K.B. in school for over a month, her failure to follow up with recommended substance abuse treatment, and her failure to plan for T.K.B.'s safety given the presence of lead in her Essex County residence.
When the children were removed, Rollins noted that they were unkempt and dirty and appeared to be hungry. She also noted that J.B. had a bad case of cradle cap that had gone untreated. The children were placed in a foster home together. Rollins explained to defendant that although the Division's goal had now changed to adoption, there was still a window of opportunity to shift that goal back to reunification if defendant complied with the Division's recommendations.
On July 17, 2014, defendant completed a second psychological evaluation with Dr. Williams after failing to keep appointments on May 20 and June 3. Dr. Williams reported that defendant was not capable of providing adequate parenting to her children. He again found that defendant was experiencing a moderately severe mental disorder, and noted her failure to successfully complete a substance abuse program. Dr. Williams recommended that defendant participate in a Mentally Ill Chemical Abuser (MICA) program so that her psychological and substance abuse issues could be addressed simultaneously.
Theresa Dawson, a Division adoption worker, was assigned to the case in September 2014. Dawson referred defendant to a MICA program. Although defendant appeared for the initial intake on November 17, 2014, she thereafter failed to attend the program. Dawson made a second referral, but defendant again failed to attend.
Although Dawson arranged for weekly visitation with the children, defendant failed to attend on a regular basis and when she did attend, she arrived late. On one visit, defendant was accompanied by a male companion and another child. When told that her male companion would have to leave, defendant left without exercising visitation with the children. Dawson testified that between January 20, 2015 and the June 29, 2015 trial date, despite being offered weekly visitation, defendant attended only five times, the last of which occurred on March 19.
Dawson indicated that the Division's goal was select home adoption. A family was recently located that had a son who is acquainted with T.K.B., and the family had expressed a willingness to adopt all three children.
The Division also presented the testimony of expert psychiatrist Samiris Sostre, M.D., and Dr. Williams, at the guardianship trial. During her interview with Dr. Sostre, defendant stated that she used marijuana a week earlier and acknowledged a history of alcohol and marijuana abuse. Dr. Sostre diagnosed defendant as suffering from a mood disorder, not otherwise specified. In her opinion, defendant was incapable of providing the children with a safe home. Dr. Sostre viewed defendant's failure to attend visitation and treatment over the months leading up to trial as evidence of her lack of motivation to make the changes necessary to provide a safe home for her children.
Dr. Sostre testified that defendant's prognosis for recovery was poor. She based this assessment on the pervasiveness and duration of defendant's symptoms and defendant's resistance to treatment. Dr. Sostre further testified that although defendant showed improvement when she participated in inpatient programs, she failed to demonstrate the ability to maintain sobriety outside such structured environment. The doctor estimated that a "very optimistic timeframe" within which defendant could sufficiently address her issues would be six to twelve months, but "realistically much more than one year."
In addition to his two earlier evaluations, Dr. Williams conducted an updated psychological evaluation of defendant in April 2015. He again concluded that defendant is not capable of providing a safe home for the children, who would be at risk in her care. Dr. Williams based his opinion on defendant's ongoing substance abuse, her continued symptoms of depression and dependency, and her failure to maintain regular contact with the children. He also noted defendant's struggles with maintaining housing and employment, and that she "blames other people and doesn't take responsibility for her non-compliance."
Following a bonding evaluation that he conducted, Dr. Williams opined that the children do not regard defendant as a stable and nurturing caregiver, and that they "don't view her as a parent in any stretch of the word." He concluded that the children would not suffer severe and enduring harm were defendant's parental rights to be terminated. The following colloquy ensued:
Q. And in your opinion, has the lack of permanency that the three children have been experiencing, has that been harmful to them?
A. Well, yes. I mean, children need permanency. And in this instance, this has been going on for years. [Defendant] has had years to do what she . . . needs to do. So that [] has created stress and distress in these kids.
Q. And you're aware that in the case of K.H.B. and J.B. that they were actually reunified with [] their mother in September [] 2013 - -
A. Yes.
Q. - - subsequent to J.B.'s birth? So all three children were living with their mother to only then be removed again in March [] 2014. Given that placement history, do you have an opinion what the impact of another failed reunification would be on these children?
A. I think it would further intensify the distress. I think they would be angry, I think that they would be depressed. In light of what they've gone through, it would really be unnecessary suffering.
Defendant did not appear at the guardianship trial, despite the fact that Dawson called her and reminded her of the court date. Maureen R. Santina, Ph.D., an expert psychologist, testified on defendant's behalf. Dr. Santina evaluated defendant on June 11, 2015, and diagnosed her with chronic post-traumatic stress disorder, major depressive order, and cannabis dependence. The doctor opined that defendant required trauma-focused treatment, which had never been provided, as well as medication to alleviate her depression. Also, Dr. Santina noted "there's no question that [defendant] needs further substance abuse treatment." She also conceded that defendant was "inconsistent" in exercising visitation, but that "the visits between [defendant] and her children have generally been positive" when they did occur.
Dr. Santina also conducted a bonding evaluation of defendant with the children. The doctor noted that defendant "showed good parenting skills during this evaluation and she was very loving with the children." The two older children demonstrated a positive parental attachment to their mother, and J.B. showed a level of attachment consistent with his young age.
Dr. Santina concluded that defendant is not ready to assume parental responsibility for her children but that she has the potential to do so. She recommended that defendant undergo six months of trauma-focused treatment, and that reunification with the children could then be considered if defendant demonstrated progress in her treatment.
Judge Stephen J. Bernstein issued an oral opinion on June 29, 2015, finding that the Division had satisfied all four prongs of the best interests test, N.J.S.A. 30:4C-15.1a. The judge began by noting his lengthy involvement with the case. He then made findings with respect to the credibility of the expert testimony. The judge found that Dr. Santina did not present as a credible witness. In contrast, he found the testimony of Dr. Sostre and Dr. Williams to be credible and consistent with the history of the case.
Judge Bernstein noted that defendant did not advance any argument that the Division had failed to satisfy prongs one and two of the best interests test. As to those prongs, the judge expressed that "there[] [is] nothing more devastating than reuniting children and then having to remove them for a second time." The judge found the children were harmed by defendant's failure to appear for the scheduled visitations, and that her failure to register T.K.B. for school was also harmful.
The judge found that defendant made "zero effort . . . since removal over a year ago." He determined that defendant's numerous failures to comply with the Division and with treatment in the past are indicative of her present inability to deal with her problems. The judge found "[t]he possibility that progress is going to miraculously start at this time" was highly unlikely, given all the treatment made available to defendant in the past. He concluded that there is "no reasonable possibility that . . . [defendant] is going to be able to care for these children now or in the [] future."
With respect to prong three, Judge Bernstein noted "all the different programs that [the Division] provided and all the attempts they[] made to reunify and all the services they[] provided." He found it clear that "the Division has made reasonable efforts in trying to help [defendant]."
As to the final prong, the judge stated that, through her behavior, defendant has "done everything possible to negate any . . . bonding" she had with her children. Because defendant essentially stopped visiting her children, he found that significant harm would not result from the termination of parental rights. The judge also emphasized that the Division located a prospective adoptive home that is committed to having the children maintain contact with their current foster care placement.
On appeal, defendant raises the following points for our consideration:
POINT I - BECAUSE DCPP FAILED TO PLEAD OR PROVE THE CONDITIONS PRECEDENT TO FILING A PETITION FOR GUARDIANSHIP[] AS SET FORTH IN N.J.S.A. 30:4C-15, THE TRIAL COURT LACKED JURISDICTION TO ENTER A JUDGMENT OF GUARDIANSHIP.
A. THE EVIDENCE BELOW SHOWS THAT [A.J.B.] DID NOT ABANDON HER CHILDREN UNDER N.J.S.A. 30:4C-15(e) OR N.J.S.A. 30:4C-15.1b.
B. THE EVIDENCE BELOW SHOWS THAT [A.J.B.] DID NOT RECEIVE REASONABLE EFFORTS OF DCPP TO ENCOURAGE AND STRENGTHEN THE PARENTAL RELATIONSHIP OR TO ASSIST HER IN REMEDYING THE CONDITIONS THAT LED TO THE REMOVAL OR PLACEMENT OF THE CHILDREN; NOR WAS SHE PHYSICALLY AND FINANCIALLY ABLE TO REMOVE THE CIRCUMSTANCES OR CONDITIONS THAT LED TO THE REMOVAL OR PLACEMENT OF THE CHILDREN AND THUS DID NOT FAIL, FOR A PERIOD OF ONE YEAR, TO DO SO, UNDER N.J.S.A. 30:4C-15(d).
C. THE EVIDENCE BELOW SHOWS THAT IT WAS NOT IN THE BEST INTERESTS OF [A.J.B.'s] CHILDREN TO BE PLACED UNDER GUARDIANSHIP UNDER N.J.S.A. 30:4C-15(c).
1. The Trial Court Improperly Relieved DCPP of its Burdens of Proof and Persuasion By Clear and Convincing Evidence, That the
Children's Safety, Health or Development Was or Would Continue to be Endangered by the Parental Relationship or That There Was Any Harm Facing the Children That [A.J.B.] Was Unwilling or Unable to Eliminate or That the Children Faced Harm Because [A.J.B.] Was Unwilling or Unable to Provide a Safe and Stable Home For the Children and Delay of Permanent Placement Would Add to That Harm.
2. DCPP's Evidence at Trial Proved That DCPP Failed to Make Reasonable Efforts to Provide Services to Help [A.J.B.] Correct the Circumstances Which Led to the Children's Placement Outside the Home or That the Court Considered Alternatives to Termination of [A.J.B.'s] Parental Rights.
3. DCPP's Evidence at Trial Proved That Termination of [A.J.B.'s] Parental Rights Would Do More Harm Than Good.
POINT II - THE TRIAL COURT'S OPINION FAILED TO SATISFY [Rule] 1:7-4 AS IT DID NOT CONTAIN FINDINGS OF FACT OR CONCLUSIONS OF LAW CONSISTENT WITH EITHER THE TRIAL EVIDENCE OR THE RELEVANT STATUTORY AND CASE LAW IN ORDER TO JUSTIFY AN AWARD OF GUARDIANSHIP TO DCPP.
Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted).
In New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591 (1986), the Supreme Court identified four factors that must be analyzed when deciding whether the termination of parental rights is in a child's best interests. Id. at 604-11. In accord with the standards articulated in A.W., the Legislature codified these factors as follows:
(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;The four factors "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).
(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-15.1a.]
The Division bears the burden of establishing each enumerated prong by clear and convincing evidence. P.P., supra, 180 N.J. at 505-506. In that vein, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347. However, the best interests of the child remain the ultimate consideration. N.J.S.A. 30:4C-15.1a.
In the present matter, we are satisfied that Judge Bernstein's findings, related to each of the four prongs, are supported by substantial credible evidence in the record and are entitled to our deference. We are additionally persuaded that the judge applied the correct legal principles in concluding from those facts that the Division established, by clear and convincing evidence, termination was in the children's best interests. We add the following comments.
The appropriate test under the first prong is "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The second statutory element of the best-interests standard is that the parent is unwilling or unable to eliminate the harm facing the child, or is unable and unwilling to provide a safe and stable home for the child and delay of permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2). Causing harm and the inability to eliminate it are related factors. Thus, the evidence that supports one, informs, and may support the other. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Defendant contends that the Division did not offer any evidence establishing the first two prongs, but rather, the trial court relieved the Division of satisfying its burden on these two prongs. We disagree. The record clearly supports Judge Bernstein's finding that the Division satisfied its burden of proof as to the first prong of the best interests test. The evidence presented at trial demonstrated a pattern of harmful conduct engaged in by defendant. This included her failure to enroll T.K.B. in school, her failure to bring K.H.B. to the doctor for the first ten months of her life, and her failure to maintain any contact with the children leading up to trial, which the judge characterized as an essential abandonment of her children.
This same evidence clearly and convincingly demonstrated defendant's inability or unwillingness to prevent harm to the children's safety, health or development, thereby supporting the judge's findings under the second prong. The expert testimony of Drs. Sostre and Williams at the guardianship trial clearly and convincingly established that defendant is unable to provide a safe home or otherwise ameliorate the risk of harm either now or in the foreseeable future. Even defendant's own expert, Dr. Santina, acknowledged that defendant is not yet able to assume parental responsibility for the children.
The third prong requires that the Division make "reasonable efforts" to help parents correct the circumstances that necessitated removal and placement of the child in foster care. N.J.S.A. 30:4C-15.1a(3); K.H.O., supra, 161 N.J. at 354. Whether the Division's efforts were reasonable depends on the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The Division's efforts on behalf of a family are "not measured by their success." Id. at 393.
The record does not support defendant's argument that the Division did not make reasonable efforts to provide services to help her correct the circumstances that led to the children's placement outside the home. Rather, as Judge Bernstein stated, it would be difficult to "imagine a case where it would[] [not] be clear that the Division [] made reasonable efforts in trying to help [defendant]." The Division offered a multitude of services to help defendant address her substance abuse, psychological, and parenting issues. The Division also provided defendant with transportation to these services. After the children were removed from the home defendant was afforded visitation, which more often than not she failed to attend. The Division continually strove to reunify defendant with the children. Unfortunately, defendant avoided the Division and the services it offered. Even when the Division worker reminded defendant of the trial date, and defendant assured the worker she would appear, she nonetheless failed to do so.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1a(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question is "whether a child's interest will best be served by completely terminating the child's relationship with that parent." Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents generally requires expert testimony on the strength of each relationship. Ibid.
Defendant argues that because the foster parent did not intend to adopt the children, there was no comparative bonding evaluation to prove the fourth prong. However, when a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (1996).
Here, at least by implication, the judge accepted Dr. Williams's expert opinion that the children lack a sustained positive bond with defendant, and rejected Dr. Santina's contrary view. The judge also properly found that any potential bond between defendant and the children was negated by defendant's failure to exercise visitation. The judge determined that the Division was committed to securing an adoptive home for the family and that the children would enjoy "an extremely comfortable situation" with the prospective adoptive family.
Most importantly, the children have a paramount need for permanency. Unfortunately, after three years of litigation, a failed reunification, and numerous failed services, defendant has evidenced no ability to provide the children with the safe, stable and permanent home they deservedly require.
In summary, we are bound by the trial judge's factual findings so long as they are supported by sufficient credible evidence. R.G., supra, 217 N.J. at 552. Here, Judge Bernstein accepted the Division's evidence as credible, and found that it was more than sufficient to prove all four prongs of the best interests test clearly and convincingly.
Defendant's additional appellate arguments are without sufficient merit to warrant discussion, beyond the following comments. See R. 2:11-3(e)(1)(E). For the first time on appeal, defendant contends that the Division's pleadings were deficient so that the trial court lacked jurisdiction to enter a judgment of guardianship, and that the Division failed to properly plead or prove abandonment. However, the Division filed the guardianship complaint pursuant to N.J.S.A. 30:4C-15.1a, and the trial court terminated defendant's parental rights based on the best interests of the children, not on abandonment. Also, contrary to defendant's argument, the trial court's findings of fact and conclusions of law were sufficient to satisfy Rule 1:7-4(a).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION