Opinion
DOCKET NO. A-3501-13T1 DOCKET NO. A-3502-13T1
04-21-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.T. and R.K., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.J.K., a minor.
Christine Olexa Saginor, Designated Counsel, argued the cause for appellant A.T. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief). Adrienne Kalosieh, Designated Counsel, argued the cause for appellant R.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the briefs). Melissa L. Medoway, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Medoway, on the brief). Linda Vele Alexander, Designated Counsel, argued the cause for minor A.J.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Alexander, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-54-13. Christine Olexa Saginor, Designated Counsel, argued the cause for appellant A.T. (Joseph E. Krakora, Public Defender, attorney; Ms. Saginor, on the brief). Adrienne Kalosieh, Designated Counsel, argued the cause for appellant R.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the briefs). Melissa L. Medoway, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Medoway, on the brief). Linda Vele Alexander, Designated Counsel, argued the cause for minor A.J.K. (Joseph E. Krakora, Public Defender, attorney; Ms. Alexander, on the brief). PER CURIAM
In these consolidated appeals, A.T. (the "mother") and R.K. (the "father") (collectively "defendants") appeal from a March 20, 2014 order terminating their parental rights to their biological son, A.J.K. We affirm.
A.J.K. was born in December 2011.
I.
The Division of Child Protection and Permanency ("the Division") received a referral indicating that the mother, then nineteen-weeks pregnant, had been admitted to the hospital with vomiting, had not received any prenatal care, and was addicted to Percocet. The Division learned that defendants also had drug problems. As a result, it provided initial services to defendants including drug treatment.
The mother had a history of referrals to the Division related to her oldest son, E.T., as well as her status as a Megan's Law offender. E.T. is not involved in this litigation.
The mother prematurely gave birth to A.J.K. several months later, and at that time, A.J.K. was diagnosed with Noonan's Syndrome. He remained in the hospital for an extended period, before being released to defendants. A.J.K.'s condition required a feeding tube and that his caregivers be certified in CPR because of the high risk of cardiac and pulmonary arrest. The hospital assigned a home health aide to assist defendants, and instructed defendants to schedule appointments with pediatric, cardiac, and gastrointestinal doctors.
Noonan's Syndrome is a genetic disorder resulting in severe physical impairments including congenital heart disease. Stedman's Medical Dictionary 1907 (28th ed. 2006).
Defendants and A.J.K. became displaced from their residence shortly thereafter due to a fire. The home health aide reported to the Division that A.J.K. missed an appointment with his pediatrician, and that defendants had not scheduled any of A.J.K.'s appointments with the specialists. The mother's substance abuse counselors notified the Division that the mother had not attended the counseling portion of her treatment for several weeks, and that she had tested positive for opiates, benzodiazepines, and alcohol. The father was also noncompliant in his substance abuse treatment program.
As a result, the Division conducted a Dodd removal and obtained custody of A.J.K. At the mother's request, the Division placed A.J.K. with his current foster mother (the "foster mother").
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
E.T. was removed from the care of the mother at this time, and the Division received custody for that child as well. The Division placed E.T. with his biological father, who is not R.K.
The Division continued offering defendants substance abuse counseling, as well as rental assistance, bus passes, and additional reunification services, such as parenting classes, therapeutic visitation, psychological evaluations, and family meetings. However, defendants were noncompliant and missed meetings or showed up more than two hours late for scheduled sessions. Defendants continued testing positive for drugs.
The Division then filed its guardianship complaint and continued providing services to defendants. Defendants received additional psychological and bonding evaluations, which concluded that defendants were incapable of providing A.J.K. with a safe and secure home.
Judge George E. Sabbath conducted a guardianship trial over several days, taking testimony from the Division's caseworkers; the Division's parental capacity and parental bonding expert; the foster mother; the mother; and A.J.K.'s paternal great-grandmother. Judge Sabbath concluded that the Division had established by clear and convincing evidence that termination of parental rights was warranted, and entered the order under review.
On appeal, defendants contend primarily that the judge erred by concluding that the Division presented sufficient evidence to terminate their parental rights. We disagree and affirm substantially for the reasons set forth in Judge Sabbath's well-reasoned oral opinion. We add the following remarks.
Defendants also argue that that the judge gave too much weight to the testimony of the Division's expert. After careful consideration of the record, we are satisfied that this argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
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II.
A court may terminate an individual's parental rights if the Division shows that:
(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 [D]ivision 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.]
A decision to terminate parental rights must be supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986). We accord substantial deference to the Family Part's fact finding due to its "special jurisdiction and expertise in family matters." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the trial court's findings "will only be disturbed if they are 'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Here, the Division satisfied by clear and convincing evidence all four prongs of the statute. Regarding prong one, that the child's safety, health or development has been or will continue to be endangered by the parental relationship, Judge Sabbath found that A.J.K. has "serious medical issues . . . from the effects of Noonan's [S]yndrome" which include "cardiomyopathy, pulmonary stenosis and feeding issues[.]" A.J.K. requires special feeding procedures and an extraordinary number of medical appointments. The judge found that defendants harmed A.J.K. because "defendants had not been taking [A.J.K.] to the required pediatric appointments[.]" The mother admitted that "she thought it was unnecessary to keep these pediatric appointments with regularity" because of the home health aide. Likewise, the father "failed to properly attend to [A.J.K.'s] health by missing the pediatric appointments."
Regarding prong two, the Division produced clear and convincing evidence that defendants were unwilling or unable to eliminate the harm facing A.J.K. The mother tested positive for alcohol, opiates, and cocaine on a number of occasions. The father also tested positive for opiates and benzodiazepines. Judge Sabbath noted that the mother attempted to explain the positive cocaine test
by indicating she was in a car . . . with [the father] and another driver . . . . As a result of some type of traffic violation . . . the car was pulled over. [The mother's] statement to the Division is that [the father] turned to her and gave her a packet of cocaine that she swallowed, and that's why she tested positive.
No matter how you interpret that incident, there is only one conclusion, that [defendants] were continuing to use cocaine, [and] they had cocaine in their possession on that day.
The record is also replete with defendants' failure to comply with services, including the positive drug tests and failing to comply with substance abuse counseling. Judge Sabbath found that based on the credible testimony of the Division's expert, defendants showed "evidence of severe parenting deficits[,]" that the mother's "prognosis for change is poor[,]" and that the father "is unable and unwilling to eliminate [the] harm . . . facing the child."
Judge Sabbath also properly concluded that clear and convincing evidence existed to establish prong three, that the Division made reasonable efforts to provide services to the parents to correct the circumstances which led to the child's placement outside the home, and that there were no alternatives to the termination of parental rights. Judge Sabbath found that there
can be no serious dispute with respect to the number of services that have been provided. . . .
These services included the following. Supervised visits; substance abuse assessments, over and over again despite many cancellations; drug testing, . . . referral to programs such as the substance
abuse initiative . . .; psychological testing; family counseling, planning and therapy; attendance at Bergen Regional detox center; . . . family team meetings . . .; bus passes; exploration of relative caretakers; and a cash payment of $1,650 to assist [the mother] in relocating to an apartment . . . .
Judge Sabbath concluded that the Division properly ruled out the relative referrals, that the mother selected the foster mother to care for A.J.K., and that A.J.K. was "securely bonded to the foster mother, such that separation will cause serious enduring harm if the child is removed[.]" The testimony of the foster mother also indicated that she is willing to adopt A.J.K. and that she has "an impressive history with respect to providing . . . medical services for children that are deemed to be medically fragile."
Finally, there exists clear and convincing evidence under prong four that the termination of parental rights will not do more harm than good. The Division's expert concluded that the mother "lacks the capacity to safely parent [A.J.K.], now or in the foreseeable future and that her psychological deficits indicate life's ordinary requirements are likely to be a struggle for [the mother]." The expert concluded that the father "lacks the capacity to safely parent [A.J.K.]." The expert found the father to be "unreliable and irresponsible in his capacity to cope with the demands of daily life and [his] child rearing [ability] is very limited." Additionally, the expert indicated that A.J.K. was "securely bonded to the foster mother and in the vernacular he sees [the foster mother] as his mother and refers to her as mom."
Judge Sabbath found the expert's "opinions and diagnosis to be credible and to be supported by the objective and undisputed facts in the record." He therefore concluded that the "[t]ermination of parental rights would clearly be in the best interest of the child, providing him with the permanency and care he needs." As the judge stated, this is because A.J.K. "has numerous health issues, is developmentally delayed, and most likely will require life-long care. He needs parents or a parent who is consistent, predictable and reliable[,] [c]haracteristics not attributable to . . . either of the defendants."
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION