Opinion
DOCKET NO. A-4708-14T3
02-29-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. H.W., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF I.M.W., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Pavithra Angara, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-199-15. Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Pavithra Angara, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Annemarie Sedore, Designated Counsel, of counsel and on the brief). PER CURIAM
Defendant H.W. (Helen) appeals from the Family Part's order that terminated her parental rights to her daughter, I.M.W. (Ivy). Helen contends that the Division of Child Protection and Permanency (the Division) failed to prove all four prongs of the statutory best-interests-of-the-child test set out in N.J.S.A. 30:4C-15.1(a). Both the Division and Ivy's law guardian argue otherwise.
We use pseudonyms to protect the privacy of those involved.
I.
Ivy was born in July 2009. On November 12, 2010, the Division received a referral that Ivy and K.W. (Kayla), her three-year old cousin, were left alone at home for more than four hours. The girls' aunt had come to the home and picked them up before reporting the incident to police. On November 16, Helen told the Division that she had just entered a detox program, having relapsed into cocaine use during the prior three weeks. Helen also advised the Division that she was on Drug Court probation at the time. As a result, the Division substantiated a finding of neglect and filed a verified complaint seeking care and custody of both Ivy and Kayla. Upon the court's approval, the girls were both placed in foster care.
Kayla is the daughter of Helen's sister, who at the time was incarcerated as the result of a criminal conviction. Helen had legal custody of Kayla. Kayla was not a subject of this litigation.
Helen's initial dedication to her rehabilitation was admirable. She successfully completed an inpatient substance abuse program to which the Division had referred her. In August, Helen was reunited with the children at Project Home's Mommy and Me residential facility. In November 2011, the Title Nine litigation was terminated, and, after another year of monitoring the family, the Division ended its involvement in October 2012.
However, less than one year later, in July 2013, the Division received another referral that both girls were seen wandering around in the street. Responding at about 5:00 p.m., Division workers found both unkempt and dressed in filthy pajamas. The girls told workers they left the apartment that morning to ask for food from people on the street, the apartment door locked behind them and they could not get back inside. Their efforts to arouse Helen, who was inside, failed and they spent the rest of the day outside, unsupervised and without food or water.
Police officers were called and forced their way into the apartment, where they found Helen asleep on the bed. She was arrested and charged with endangering the welfare of the children. However, because the officers thought Helen was under the influence, they transported her to the hospital. Helen admitted to the Division's workers that she had again relapsed into drug use about six months prior and had snorted cocaine about twelve hours earlier. Once medically cleared, Helen was lodged in the county jail.
The Division inspected Helen's apartment. There was no food, the kitchen was flooded, the stove did not work and there was no separate bedroom for the girls, only a single dirty mattress on the floor. The Division effectuated an emergency removal and placed the children together in a resource home. The Division initiated another Title Nine action and attempted to locate family members for possible placement.
On July 10, 2013, there being no family members located who were willing to take custody of Ivy, the Division placed her with T.G. (Thelma). With the exception of one month, Ivy remained with Thelma throughout the duration of the litigation. Thelma indicated her willingness to adopt the child, and Ivy expressed her desire to be adopted by Thelma.
On January 31, 2014, Helen stipulated to a finding of abuse and neglect at a fact-finding hearing, admitting that after using cocaine, she fell asleep and Ivy was found outside alone by police. Helen also admitted that she placed Ivy at substantial risk of harm by using cocaine and failing to provide adequate food for her child. In June 2014, Helen pled guilty to endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and was sentenced to five-years' probation in July. The Division filed its guardianship complaint the same month.
Upon her release from custody, Helen participated in various programs pursuant to referrals by the Division, and she had weekly visits with Ivy at the Division's office. However, by November 2014, Helen began to display behavior during the visits that concerned workers. Helen became frustrated with Ivy's temper tantrums, on one occasion telling the workers she was unable to handle the child. In December, the probation department advised the Division that Helen's drug tests were positive for cocaine, her probation had been violated and Helen was re-incarcerated. Helen was five-months pregnant at the time.
In January 2015, Helen was placed at Sunrise House halfway house (Sunrise) as a condition of her continued probation. She resumed her supervised visits with Ivy. However, Sunrise advised the Division that Helen was not fully complying with the program. Helen remained at Sunrise during the course of the guardianship trial, which commenced before Judge Mirtha Ospina in April 2015.
Documentary evidence introduced at the trial demonstrated that, beginning in October 2014, Ivy began exhibiting serious behavioral difficulties at school. A child study team recommended that she attend the Jersey City Medical Center Child Partial Hospitalization Day Program. Ivy began receiving counseling in November 2014, to address her verbal and physical aggression, problematic conversation topics and preoccupation with jail.
Dr. Barry Katz, a psychologist who conducted evaluations of Helen, as well as bonding evaluations between both Helen and Ivy and Thelma and Ivy, testified at trial as the Division's expert. Katz's testimony mirrored the findings he made in his reports.
Katz opined that Ivy suffered from "reactive attachment disorder," resulting in difficulty "forming stable attachments and bonding with caretakers." This was as a result of "growing up in a home of instability, neglect, and insecurity about her needs being met[.]" Katz stated this was exacerbated by "the failed reunification[]" with Helen.
As to Helen, Katz acknowledged that she displayed a "pervasive pattern of denial with regard to the substance abuse." He emphasized that her past criminal behavior and her high scores on psychological tests that he had administered demonstrated Helen's drug dependency. Katz opined that Helen was unable to provide a "stable or safe environment for [Ivy] at this time or in the foreseeable future." He also concluded that Ivy would be at risk of continued harm if returned to Helen's custody.
Katz also testified about the bonding evaluations he conducted. He stated that Ivy saw Helen as "a parental figure, but not one with whom she can rely upon to meet her needs in the future." Ivy had a similar warm relationship with Thelma, but "showed much greater tolerance to being separated." Katz concluded Ivy's attachment to Thelma was "a more secure attachment." Katz opined that Ivy would suffer "severe" harm if removed from Thelma's care. He also stated that if subjected to another "failed reunification" with her mother, Ivy would suffer "catastrophic" harm, including the possibility of "hospitalization for emotional behavioral disturbance." Katz believed it was not in Ivy's best interests to delay her placement in a permanent home.
The defense psychological expert, Dr. Lidia Abrams, testified about her evaluation of Helen and the bonding evaluations she conducted. Abrams acknowledged that Ivy had a strong bond with Helen and Thelma, but Abrams opined that the bond with Helen was stronger. Abrams stated that severing Ivy's bond with Thelma would be less "painful for her," but the "biggest issue for [Ivy] would be, would her mother be able to provide her with a similar type of family environment, and then she would be okay if her mother could do that for her." Abrams opined that Helen could effectively parent Ivy, but that "depend[ed] on whether [Helen] c[ould] stay drug free. That's the key here." On cross-examination, Abrams admitted that she could not determine whether Helen would in fact remain drug-free upon her release from Sunrise. Abrams agreed that a child would suffer additional trauma if removed from a parent for a third time.
The Division's caseworker also testified at trial; defendant did not. Judge Ospina rendered her oral opinion on June 3, 2015, which we discuss below. She entered an order terminating Helen's parental rights, and this appeal followed.
II.
The principles guiding our review are well-known. "The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The Division must prove by clear and convincing evidence:
(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 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) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005)).
(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-15.1(a); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
"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) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
We have considered the arguments raised on appeal in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Ospina. We add the following.
Helen contends that the Division failed to prove the first prong of the statutory test because the record demonstrates she is able to care for Ivy without endangering the child's safety. We disagree.
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." K.H.O., supra, 161 N.J. at 348. The Division must show "that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child,'" but it "does not have to wait until a child is actually irreparably impaired.'" F.M., supra, 211 N.J. at 449 (citing K.H.O., supra, 161 N.J. at 352 and In re Guardianship of D.M.H., 161 N.J. 365, 383 (1991)).
Here, Judge Ospina listed all the behavioral problems that Ivy was exhibiting and credited Katz's testimony that the child's detachment disorder resulted from her unstable upbringing and prior failed reunification with Helen. The evidence fully supports the judge's conclusions.
As to the second prong, Helen claims Katz's opinions were unreliable, citing a factual error in the expert's testimony. Helen also claims that the evidence does not support Katz's conclusion that she minimized her drug use, but rather that she has taken substantial steps to address her addiction.
The second prong "relates to parental unfitness," which may be established by demonstrating that "the parent is 'unwilling or unable to eliminate the harm'" or "the parent has failed to provide a 'safe and stable home'" and "a 'delay [of] permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App. Div.) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992 )), certif. denied, 190 N.J. 257 (2007).
In her analysis of the second prong, Judge Ospina noted that Helen's pattern of addiction and dependency on cocaine had been an issue since she was fifteen-years old, and that her addiction had only been interrupted by periods of treatment and incarceration, which, in turn, were followed by relapses. The judge credited Katz's testimony that, outside of court-mandated supervision and probation, Helen had only been sober for two months, and that, despite the pending litigation and understanding its significance to possible reunification with Ivy, Helen was still unable to remain drug-free.
We accept that Helen's efforts have been genuine, but the record evidence supported the judge's findings and conclusions that for the foreseeable future, Helen is unlikely to remain sober on her own and effectively parent Ivy. The prong two evidence was sufficient.
Helen argues that the prong three proofs were insufficient because the Division failed to provide any services to her after her 2013 relapse resulting in removal and failed to provide any services that would have assisted her in caring for Ivy. The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Judge Ospina cited the efforts the Division made to help Helen address her drug dependency, and allow her to reunify with Ivy. As the Court has noted, "[e]xperience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452. Such was the case here.
Addressing prong four, Helen argues her visits with Ivy were consistently positive and her bond with her daughter was strong. Helen also cites to certain evidence in the record regarding Thelma and the difficulty she was experiencing with Ivy and her relationship with Thelma's other family members.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.
In most circumstances, the court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes will "the child [] suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents[?]" Id. at 355. Answering that question "'necessarily requires expert inquiry specifically directed to the strength of each relationship.'" Ibid. (quoting J.C., supra, 129 N.J. at 25).
Judge Ospina cited the opinions of both Abrams and Katz that Ivy had a strong bond with Thelma. She found, based upon Katz's testimony, that Ivy's bond was stronger with Thelma than it was with Helen. The judge also acknowledged that Ivy told Abrams that she wanted to live with Helen. However, the judge concluded that Ivy would suffer greater harm if another reunification failed, and, given the unlikely chance of Helen's success in the foreseeable future, the Division had proven prong four.
We agree that Judge Ospina's finding and conclusions were supported by the record. Predicting whether Ivy would suffer greater harm from severing her bonds with Thelma or from severing her bonds with Helen was exquisitely difficult, since the child, by both experts' opinions, maintained strong bonds with both. However, the judge determined that another failed reunification posed the greatest risk of harm and, under the circumstances at the time of trial, severing Ivy's bond with Helen would not do more harm than good. We find no reason to disturb that conclusion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION