Opinion
DOCKET NO. A-3238-14T2 DOCKET NO. A-3239-14T2
02-25-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.M. and V.C., Defendants-Appellants, and J.C. and J.J.G., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF J.M., V.E.C., J.I.C., C.C., and D.C., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant E.M. (Marc D. Pereira, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant V.C. (Mark E. Kleiman, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman, Leone and Whipple. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-62-14. Joseph E. Krakora, Public Defender, attorney for appellant E.M. (Marc D. Pereira, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant V.C. (Mark E. Kleiman, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jane S. Blank, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Danielle Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendants E.M. (Mother) and V.C. (Father) separately appeal the termination of their parental rights. We listed their appeals back-to-back, and consolidate their appeals for the purposes of this opinion. We affirm.
I.
The statement of facts and procedural history are set forth at length in the comprehensive April 10, 2015 written opinion of Judge Margaret M. Foti. Thus, we provide only the following brief factual and procedural history.
E.M. is the Mother of J.G., J.M., V.E.C., J.I.C., C.C., and D.C. V.C. is the Father of V.E.C., J.I.C., C.C., and D.C. At the time of the guardianship trial, J.M. was ten years old; V.E.C. was nine years old; J.I.C. was nearly eight years old; C.C. was five years old; and D.C. was four years old.
E.M. also has an adult daughter, V.G., who resides in Kansas, and a son, I.F., who resides with a different father. Guardianship of I.F. is not at issue on appeal.
J.J.G. is the father of J.G., and J.C. is the father of J.M. Because J.G. was almost eighteen years old, the Division chose not to seek termination of the parental rights to J.G. of Mother and J.J.G. J.C. has not appealed the trial court's termination of his parental rights to J.M.
Beginning in 1999 and extending until 2011, plaintiff, the New Jersey Division of Child Protection and Permanency (the Division), received referrals regarding Mother and Father. None of these referrals were substantiated, but the Division provided services to Mother, Father, and the children from 2000 onward.
In May 2012, the Division substantiated Mother for being intoxicated while the children, "ranging in age from 18 months to 15 years old," were in her care and for allowing the children to be "unkempt in dirty clothes and dirty diapers." The Division also substantiated Father because he "knowingly left his children in the care of their mother knowing she had a substance abuse problem and just purchased alcohol for her." Mother and Father subsequently stipulated to this conduct and that it placed the minors at substantial risk of harm.
Following this substantiation, the Division removed all of the children from the home. The trial court awarded the Division custody over all the children on May 2012.
The trial court ordered both Mother and Father, who tested positive for marijuana, to engage in substance abuse and other services and undergo psychological evaluations. Initially, Mother and Father participated in services. The Family Part permitted the parents to have unsupervised visitation with the children. Moreover, the Division planned to reunify the children with Mother.
Unfortunately, in July 2013, during an unsupervised visit with all of the children, Mother was highly intoxicated and engaged in a physical altercation with Father. J.G. called the police and both Mother and Father were arrested and charged with simple assault. Following their arrest, Mother admitted drinking and to being an alcoholic, and Father admitted that he drank with and supplied alcohol to Mother. Father conceded that Mother's drinking had been getting progressively worse each week but he had not told the Division. In addition, Father admitted to not being consistent with services, not having a job, and not having a place to live.
Following this incident, the Division changed its plan from reunification to termination of parental rights for both Mother and Father. The Family Part approved of this change and ordered the parents to continue engaging in services.
After July 2013, the relationship of Mother and Father ended, and their compliance with court orders and attendance at services and parental visitations became sporadic. Father admittedly "gave up" on his children and ceased all contact with the Division. Father was arrested for possession of marijuana in September 2013, and admitted using marijuana in April 2014. Mother was evicted from her home, and tested positive for synthetic marijuana in June 2014.
The younger children — C.C. and D.C. — were living in a foster home with foster parents who wished to adopt them. The older children — J.M., V.E.C., and J.I.C. — were living with a resource mother.
Mother's nineteen-year-old daughter, V.G., expressed a desire to adopt all of the children. V.G. lived in Kansas, and the Division with its Kansas counterpart sought to conduct an "Interstate" home study to determine if V.G. could provide a suitable home for the children. However, V.G. failed to cooperate with the Interstate study, and the trial court excluded her from consideration.
In July or August 2014, Mother and Father began re-engaging in services. However, neither parent had stable housing, and the children had been in placement for over two years.
The five-day guardianship trial commenced on December 1, 2014. At trial, the Division presented over 200 exhibits and five witnesses. In particular, the Division presented expert testimony from Dr. Elizabeth Smith, a psychologist, who testified that neither Mother nor Father would be capable of safely caring for their children in the foreseeable future. Dr. Smith testified that despite the children's relationship with Mother and Father, "given the parents' history, parenting deficits, and the length of time the children have been in placement," she was "compelled to recommend against reunification." The trial court found Dr. Smith "highly credible." Neither Mother nor Father presented any expert testimony.
On February 23, 2015, Judge Foti issued an order, supported by a thorough 102-page written opinion, terminating Mother's parental rights to J.M., V.E.C., J.I.C., C.C., and D.C., and Father's parental rights to V.E.C., J.I.C., C.C., and D.C. On March 16, 2015, Mother and Father filed separate notices of appeal.
II.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347; see N.J.S.A. 30:4C-15.1(a).
The Division may bring an action under Title Thirty "[t]o terminate parental rights and obtain guardianship of a child who has been placed in foster care[.]" N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 60 (App. Div. 2010). The Division must clearly and convincingly prove all four prongs of the "best-interests-of-the-child test" set forth in N.J.S.A. 30:4C-15.1(a), N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447-48 (2012), namely 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 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).]
"Importantly, those four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007) (citation omitted).
Appellate review of a family court's findings with respect to these prongs is "limited." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision is supported by substantial and credible evidence on the record. F.M., supra, 211 N.J. at 448. "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).
Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Thus, "[w]e will not overturn a family court's factfindings unless they are so '"wide of the mark"' that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (citation omitted). We must hew to this standard of review.
In this case, both the Division and the Law Guardian supported termination of parental rights. "[T]he Law Guardian's position [is] of particular significance" because the Law Guardian "has to advocate for the best interests of [children] too young to speak for [themselves], and represents neither adversary in the case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433-34 (App. Div. 2009).
III.
After careful review, we affirm substantially for the reasons given by Judge Foti in her comprehensive written opinion. We add the following.
Mother, but not Father, challenges Judge Foti's finding that the Division proved the requisite harm to the children under prong one, N.J.S.A. 30:4C-15.1(a)(1). Mother repeatedly claims that a psychiatric report by Dr. Samiris Sostre stated she "did not meet the criteria for alcohol abuse." However, Mother's argument mischaracterizes Dr. Sostre's conclusions, which provided that Mother "does meet the criteria for alcohol abuse."
Mother and Father challenge Judge Foti's finding that the Division met its burden under prong two, N.J.S.A. 30:4C-15.1(a)(2), but their challenges are meritless. For years, Mother and Father proved unable to eliminate the harm to the children or provide them with a safe and stable home, and their eleventh hour efforts in the last few months before trial were too little and too late. Although Mother's daughter, V.G., testified that she was willing to be a placement for the children, the trial court discredited her testimony that she had cooperated with authorities to arrange placement.
Mother also challenges Judge Foti's finding that the Division provided sufficient services under the third prong, N.J.S.A. 30:4C-15.1(a)(3). She argues the Division failed to provide her with transportation to services. This argument is belied by the record, as the Division provided bus passes to Mother and also arranged, on several occasions, for a Division employee to transport Mother for services and visitation. While the Division had to cancel some services, it provided ample services to Mother, which she often failed to attend.
Likewise, Father challenges the judge's finding on the third prong, arguing that the Division did not make an effort to help him obtain employment and housing, or to assist him in developing a reality-based plan to care for his children. However, the record indicates that Father did not request help with employment and housing, resisted inquiries into his housing, and obtained employment on his own. Moreover, Father admittedly "gave up" on his children, fell out of contact with the Division, and was inconsistent in attending the services that were provided to him. Thus, Judge Foti properly found that the Division met its burden under N.J.S.A. 30:4C-15.1(a)(3).
Citing their bond with the children, Mother and Father challenge Judge Foti's finding that the Division satisfied the fourth prong, N.J.S.A. 30:4C:15.1(a)(4). However, Judge Foti credited the testimony of Dr. Smith and others that termination was necessary because of Mother's substance abuse issues, the risk of further domestic violence between Mother and Father, their "lack of stable housing, lack of stable employment, inability to manage five children, inconsistency in complying with services and visiting with the children," and the two-and-one-half years the children had spent in foster care. Dr. Smith found that the younger children were thriving and bonded with their foster family. Dr. Smith also found that the older children's strongest bond was to each other, and that their bond with their foster mother was greater than with Mother or Father. As Judge Foti noted, "[t]hese children require permanency, and this outcome cannot be held hostage" waiting for a "reunification with the parents [which] would only further exacerbate the problems these children face." Thus, Judge Foti properly found termination will not do more harm than good.
The Division investigated and rejected the unfounded allegations that the foster parents had slapped the younger children.
A comparative bonding analysis regarding the resource mother and the older children was not necessary, as she was not in a position to adopt the older children at the time of the guardianship proceeding. Following the trial, the resource mother decided that she wished to adopt the older children.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION