Opinion
DOCKET NO. A-5184-13T1
06-26-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.T., Defendant-Appellant, and R.N., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF H.T. AND H.T., minors.
Anthony J. Vecchio, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Vecchio, on the brief). James D. Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-0175-13. Anthony J. Vecchio, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Vecchio, on the brief). James D. Harris, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Rachel E. Seidman, Assistant Deputy Public Defender, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Seidman, on the brief). PER CURIAM
Defendant E.T. appeals from a guardianship judgment, which terminated his parental rights and placed his special needs twins, whom we call Harry and Henry, in the custody of the Division of Child Protection and Permanency (the Division) to secure adoption. The same judgement terminated the parental rights of the children's mother, R.N., who did not participate in the litigation and has not contacted the Division or the children since March 2013. R.N. has not participated in this appeal.
We note the matter was initiated prior to the passage of the June 29, 2012 legislation that reorganized the Department of Children and Families, including renaming the Division of Youth and Family Services as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).
Despite attempts to locate her, R.N.'s whereabouts remained unknown and she was "entirely missing" since March 2013.
Defendant argues the trial judge's conclusions were against the weight of the evidence, because the Division's proofs failed to satisfy three of the four prongs of the statutory test required to demonstrate the best interests of the children warranted termination of parental rights. N.J.S.A. 30:4C-15.1(a). Defendant also argues his trial counsel provided ineffective assistance and, for the first time on appeal, raises evidentiary challenges.
We have reviewed the arguments presented on appeal in light of the record and applicable law. We affirm substantially for the reasons set forth in the trial judge's oral opinion issued June 6, 2014. R. 2:11-3(e)(1)(A). We add these comments.
We fully recognize parents have a constitutionally protected right to enjoy a relationship with and to raise their children. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Both the federal and the New Jersey constitutions protect the inviolability of the family unit. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
However, "the right of parents to be free from governmental intrusion is not absolute." A.W., supra, 103 N.J. at 599. As evidenced by child abuse and neglect cases, some parents may act against the interests of their children. When a child's biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise the child without causing the child further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. "The analysis of harm entails strict standards to protect the statutory and constitutional rights of the natural parents," and the "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
The Legislature has recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether . . . it is in the child's best interest to preserve the family unit . . . ." N.J.S.A. 30:4C-1(a). More recently, "'[t]he child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)).
"The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347. The best interests standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, is now codified in N.J.S.A. 30:4C-15.1(a), and requires the State establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;The four criteria are not discreet and separate, but "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. See also N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010). The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 348. Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.
(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).]
The scope of our review of a determination terminating a parent's rights is limited. The factual findings undergirding such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Accordingly, the judgment of a trial judge "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
Guided by these legal standards, we note the trial judge made very explicit factual findings and credibility determinations. After weighing the evidence presented at trial, which included the testimony of the Division's caseworkers, its psychological expert, defendant, and defendant's sister, the judge identified the clear and convincing proofs supporting each prong of the best interests test. She specifically found, at the time of trial, defendant's conduct had and continued to endanger the children's health, safety, and development, and there was no reasonable prospect defendant would cease the harmful conduct placing the twins at significant risk. Defendant rejected the need for services offered. Finally, the judge concluded termination of parental rights would not do more harm than good.
The twins were born in Massachusetts in 2010, and from birth suffered profound special needs. Immediate concern arose because of parental resistance to necessary medical care to address the myriad of conditions facing the twins. More specifically, Harry was diagnosed at birth with pulmonary hypertension as well as vision and hearing loss; his speech is extremely limited; he is developmentally delayed; and he has a heart murmur. Henry is "medically fragile" and suffers from cerebral palsy, chronic lung disease, and Hemoglobin Sickle Cell Disease (HbSC), which requires "constant vigilance." Because of his conditions, Henry cannot swallow, walk, or stand unassisted. The HbSC also poses potentially life threatening complications, which among other things includes splenic sequestration crises resulting when blood traps in the spleen rather than circulating through vital organs like the heart and lungs.
From their birth, the twins and their parents were supervised by the Massachusetts Department of Children and Families (MDCF). In April 2012, after a Massachusetts court granted the Commonwealth custody of the twins, predominately because of the refusal to treat Henry's HbSC disease, MDCF discovered the parents removed the children to New Jersey. The Division's involvement commenced in April following its emergency removal.
The twins have remained in the same resource home. The resource parents have expressed a desire to pursue adoption.
Contrary to the portrait of defendant painted in his merits brief, the record reflects his consistent anger directed toward medical professionals, Division personnel, and service providers. Although he holds a sincere love for his twins, his resistance to abide recommendations for necessary medical care for their significant health conditions presents a threat to the children's safety and well-being and, potentially, to their lives.
The trial judge itemized the numerous and repeated displays by defendant of resistant, "confrontational, difficult, oppositional, [and] belligerent" behaviors, which interfered with the medical needs of the twins. The instances show defendant chose between the myriad of conditions diagnosed, allowing care only for those he accepted and ignoring those with which he found disagreement. Defendant's "negative attitude and behavior" toward the medical providers caused him to switch care providers, resulting in a lack of coordination of and at times delay in the twins' medical treatment. Defendant, who ironically stated he was a Sickle Cell carrier, believed doctors misdiagnosed Henry's HbSC condition and refused to accept training on the potentially fatal symptoms of distress. He expressed his view that doctors were using the children as "guinea pigs," and asserted the twins were being held "in prison like lab rats" in the hospital.
Another significant piece of evidence supporting the judge's findings and the expert's opinion of defendant's personality disorders and inability to change his behaviors was a July 18, 2012 letter defendant wrote to the Division caseworker and her supervisor, shortly after the children's removal from his care. The letter denied the twins suffered sickle cell disease and characterized the Division as "[e]vil people," who were "killing [the twins] slowly," and "holding them just to destroy them." At trial, defendant denied he participated in the letter's authorship, a claim rejected by the trial judge as deceptive, noting statements defendant made at trial were virtually identical.
Defendant declined to participate in treatment services, such as counseling, parenting education, therapeutic visitation, or family meetings to discuss the children's needs to effectuate reunification. Further, despite documented attempts to educate him regarding the twins' conditions and needs, he remained uninvolved.
Defendant participated in visitation with the children, supervised by the Human Services Police because of defendant's angry outbursts. On December 10, 2012, visitation was ultimately suspended when for a second time defendant refused to release the twins at the conclusion of a visit. In the presence of the children, defendant was arrested and criminally charged with interference with custody, N.J.S.A. 2C:13-4(a)(3) and obstruction, N.J.S.A. 2C:29-1(a). A bail condition precluded defendant's contact with the twins. Defendant refused to accept services to allow resumption of visitation. The criminal matter was finalized; supervised visitation resumed in March 2014.
"The Human Services Police Force protects facilities across the state which are open and operated by the Department of Human Services 24 hours a day, seven days a week, all year long. . . . Through a joint agreement with the Department of Children and Families, almost half of the Human Services Police Force also operates out of [Division] Units across the state to protect case workers and [Division] offices around the clock." Human Services Police, N.J. Dept. of Human Servs., http://www.state.nj.us/humanservices/involved/police/ (last viewed June 16, 2015).
The trial judge flatly rejected, as deceptive, defendant's testimony stating he repeatedly inquired, but was never informed of the twins' conditions and needs; he could not pursue necessary treatment because he did not have medical benefits; and his behaviors were misinterpreted as he was merely advocating to assure the twins' diagnoses were correct. The judge could not find defendant's behaviors reflected inquisitiveness or confusion, but rather that he was hostile, threatening, and uncooperative because he rejected essential medical care. Relying on expert testimony, defendant's refusal to engage services, and his conduct and incredible trial testimony, the judge found defendant's behaviors thwarted reunification as he would not change and consistently refused to engage services.
We defer to the trial judge's credibility findings, N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007), and find unavailing defendant's argument the evidence merely reflects his expressed disagreement with certain medical providers, as expected from a concerned involved parent. The evidence amply supports the findings and clearly and convincingly sustains the conclusions of the trial judge. Defendant purposefully neglected the diagnosed medical needs of Henry, engaged in violent and angry outbursts in front of the children when he disagreed with others, was ill-equipped to address the significant medical and emotional needs of the children, and willfully refused to engage in services and education regarding their conditions and needs.
Accordingly, we find no flaw in the trial judge's conclusion the Division satisfied the first three prongs of the best interests test proving by clear and convincing evidence defendant's conduct had threatened and likely would continue to endanger the twins' safety, health, and well-being, despite the Division's best efforts to achieve reunification. N.J.S.A. 30:4C-15.1(a) (1), (2), (3); see also KHO, supra, 161 N.J. at 352.
We turn to the fourth prong of the statutory test, requiring termination of parental rights would not do more harm than good. The Division must show the child's best interests will be substantially prejudiced if parental rights were not severed. We conclude the Division met its burden.
The uncontroverted opinion of the Division's psychological and bonding expert, found by the judge to be "highly credible," stated the bond between defendant and the twins was "insecure." Although they were affectionate, the twins did not view defendant as their care provider. On the other hand, the twins had a secure attachment to their resource parents, who were found to be the children's psychological parents. Any harm that would occur by severing ties to defendant would be mitigated by their care-providers.
The resource parents demonstrated an ability to provide a safe and stable home and were committed to the twins' health needs. Serious and enduring harm would result if the twins were removed from their resource family and they likely would suffer from the lack of medical care necessary to address their needs.
The totality of these proofs clearly and convincingly satisfies prong four. N.J.S.A. 30:4C-15.1(a)(4).
Defendant next argues he was deprived effective assistance of counsel because his attorney did not obtain an expert trial witness to testify on defendant's parental fitness, his bond with the twins, and the impact termination of his parental rights would cause. We disagree.
It is clear, a parent defending the State's action seeking to terminate his or her parental rights not only has the right to counsel, N.J.S.A. 30:4C-15.4(a), but also to effective counsel. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 305-06 (2007). To establish such a claim, a defendant must satisfy the two-pronged test enunciated by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test). To establish a prima facie case of ineffective assistance of counsel, a defendant must prove:
First, . . . that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing thatSee also B.R., supra, 192 N.J. at 307-08.
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
As early as June 14, 2012, defendant informed his caseworker he would be obtaining his own expert. However, approximately one month before trial, during a case management conference, counsel first advised of problems in timely securing a defense psychological and bonding expert and providing payment of the expert's fee. Defendant's attorney identified a proposed expert and the timing of securing the report and obtaining payment were discussed. The public defender's office noted defendant qualified for an expert through the Office of Parental Representation (OPR); however, defendant stated he preferred to use his proposed expert. The judge declined the request to adjourn the trial date, because the information about whether the expert would be retained and when he would complete his report were not clear.
Even though the OPR ultimately approved payment for use of defendant's proposed expert, the approval may have come late. On the first day of trial, defendant's attorney told the court he would not be offering expert testimony on the issues of parental fitness and bonding, stating: "The minute [the proposed expert] saw the size of the file, I think he got cold feet." Defendant did not request an adjournment.
Defendant also maintains counsel failed to secure experts to address Henry's sickle cell disease. The record does not express the content of this proffered testimony and notes defense counsel was unable to secure the expert. Presentation by a proposed fact witness on the topic was objected to by the Law Guardian, as undisclosed and untimely. Counsel never offered the witness.
Defendant's claim that counsel's conduct was ineffective is not supported by proof, such as an affidavit or certification, setting forth with particularity the facts defendant wished to present through the proffered experts. He merely argues the failure to present experts rendered ineffective assistance. This is not enough. "[B]ald assertions" are insufficient to support a claim of ineffective assistance; a defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Jones, 219 N.J. 298, 311-12 (2014) (citations and internal quotation marks omitted). See also B.R., supra, 192 N.J. at 311. Defendant's failure to overcome this hurdle requires we reject his claim.
Finally, defendant argues the trial judge's findings were erroneously grounded on the hearsay records from MDCF, which included medical reports and statements documenting defendant's interactions with MDCF and medical professionals. Defendant asserts the documents were inadmissible under Rule 5:12-4(d) or the business records exception to the hearsay rule, N.J.R.E. 803(c)(6).
Rule 5:12-4(d) provides:
The Division . . . shall be permitted to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants. Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.
During trial, defendant objected to the admission of the records, arguing they were not timely provided. That claim proved to be inaccurate and, therefore, the objection was withdrawn and counsel admitted the documents aided defendant's position. Another objection was made because the documents had not been properly authenticated. This was rejected by the trial judge, who found the documents self-authenticated under N.J.R.E. 902(b). See State v. Colley, 397 N.J. Super. 214, 220 (App. Div. 2007) ("Pursuant to N.J.R.E. 902(b), 'extrinsic evidence of authenticity as a condition precedent to admissibility is not required' when the document bears a seal from any state." (quoting N.J.R.E. 902(b)).
A challenge to the records as hearsay was never advanced during trial. Moreover, defendant relied in part on the favorable statements contained in the MDCF documents and reports. He cannot now argue their use was error. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 340-42 (2010) (barring a defendant from challenging the admission of documents on appeal where the defendant consented to their introduction and used the documents at trial because this would be particularly unfair to the Division, which was deprived of the opportunity to satisfy any determined evidentiary deficiency).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION