Opinion
DOCKET NO. A-5069-13T2
06-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.N.R., Defendant, and D.M.S., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF B.M.S. and A.N.S., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Katrina Sansalone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors B.M.S. and A.N.S. (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Higbee. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0011-14. Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Katrina Sansalone, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors B.M.S. and A.N.S. (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant D.M.S. appeals from a June 10, 2014 order terminating his parental rights to his son B.M.S. (Ben) and his daughter A.N.S. (Amy), who were ages fifteen and fourteen, respectively, at the time of the May 2014 guardianship trial. For the reasons that follow, we affirm.
We use pseudonyms to protect the children's privacy.
The children's mother, who suffers from severe mental illness, surrendered her parental rights and is not involved in this appeal.
I
Defendant and the children's mother were not married, but they lived together with the children. Ben was born in January 1999, and Amy was born in March 2000. The Division of Child Protection and Permanency (Division) first became involved with the family in 2000, based on concerns that the parents were not feeding the children regularly and were otherwise unable to safely care for them. In 2002, defendant obtained legal custody of the children and lived with them in Pennsylvania. Eventually, defendant and the children moved back to New Jersey. The Division investigated the family in 2010, based on a referral from the Pennsylvania child welfare agency concerning possible child abuse. However, defendant retained custody of the children.
Ben reported to a Division mental health liaison that defendant's fiancée had hit and choked him, and he had witnessed defendant hitting her.
In February 2011, defendant lost custody of the children after he left them alone in a motel room while he went out drinking. When arrested for driving while intoxicated, defendant told the police that the children were alone in the motel room. The police called the Division, whose staff took emergency custody of the children and subsequently placed them in foster care with court approval. Both children had serious behavioral issues. By the time of the trial, each had been in several foster placements.
Thereafter, defendant again moved away from New Jersey, and during the years his children were in foster care, he primarily contacted them by telephone rather than through in-person visits. Defendant became involved with, and married, a woman other than Amy and Ben's mother, and had two children with her. Child welfare agencies were involved with defendant's second family as well. A plan to reunite Ben and Amy with defendant in Delaware fell apart after defendant was arrested on a domestic violence complaint filed by his wife. At the time of the trial, he was living with a friend in Delaware after recently relocating from a homeless shelter, and was being treated for alcohol addiction and depression.
At the time of the trial, Ben was living with foster parents in a specialized "mentor treatment" home. According to his assigned Division case worker, Ben had made significant progress with his anger issues and was doing well in the foster home. Amy, who had learning disabilities and engaged in precocious and inappropriate sexual behavior, was also living in a specialized foster home.
Amy may have been molested by defendant's father, who is a convicted sex offender subject to Megan's Law.
According to the children's Division case worker, Susanna Diaz, both children told her "adamantly" that "they wish to be adopted." Diaz testified that Amy's foster mother told Diaz that she wanted to adopt Amy. Diaz also testified that Ben wanted to be adopted by his current foster family. That family was willing to let Ben stay with them as long as he wanted to stay, but did not want to adopt him because they were not prepared to adopt any child. However, according to Diaz, one of Ben's prior foster families might be interested in adopting him. Ben was having weekend visits with the latter family to see if an adoptive placement there would succeed.
Ben told Diaz that he was angry that his father had left him and Amy in foster care for such a long time, and was angry that defendant had not addressed his alcoholism. For example, Ben told Diaz that he perceived that defendant was drunk during a recent phone call with Ben. Ben also told Diaz that when he lived with defendant, "a lot of things happened" when defendant was drunk. For example "his dad would wake him and [Amy] up in the middle of the night" and "beat them with a belt." Defendant would also "play loud music keeping them up." Ben was afraid that defendant would behave that way again if the children were reunited with him.
Both children expressed to Diaz that they believed they would have no stability if they lived with defendant, because he was still drinking and did not have a permanent place to live. When asked how he would feel if he could not see his father again, Ben told Diaz that he was "done" with his father and wanted no further contact with him. Amy expressed an interest in continued telephone contact with defendant, which her foster mother told Diaz she would allow even if she adopted Amy. However, Amy did not want to have in-person visits with defendant.
In his testimony, defendant expressed an interest in reuniting with the children in Delaware. He wanted them to complete their psychological therapy "while" defendant completed his therapy, and then have the children come to live with him. He testified that, on the occasion when he left the children at the motel, he first got drunk in the motel room in front of the children and then left them alone to go run an errand with friends. He admitted that Ben had witnessed domestic violence between defendant and his former wife. However, defendant testified that he was now being treated for his alcoholism and depression. He admitted drinking alcohol two months before the trial started, but testified that he had been sober for between thirty and sixty days, as of the date of the trial. Defendant did not testify as to any potential friends or relatives whom he claimed were alternative permanent caretakers for the children; his plan was for them to live with him. However, at that point he did not have appropriate housing for the children.
Defendant lived with this woman in Pennsylvania and Delaware. He eventually married her, but they were divorced by the time of the guardianship trial.
Defendant admitted that Ben and Amy had told him they wanted to be adopted. However, he insisted that he would not voluntarily surrender his parental rights because "they're still my children." He stated that he would honor their wish to remain in their current placements if they could have "open communication" with him. At the end of the first trial day, on May 13, 2014, the Law Guardian told the judge that he would bring the children to court so that they could tell the judge what their preferences were.
The Division's expert psychologist, Dr. Linda Jeffries, evaluated defendant, and performed a bonding evaluation with him and the children, in November 2013. Dr. Jeffries diagnosed defendant as having alcoholism and depressive disorder. She found that he tended to blame others for his problems, had trouble resolving conflicts in a non-violent manner, and was unlikely to be able to safely parent the children. She strongly recommended that the children not be placed with defendant.
Dr. Jeffries found that the children had a negative, insecure, and "traumatic" bond with defendant. She explained in detail how harmful it is for children when a parent raises their expectations for a stable home and then repeatedly deserts and disappoints them. She testified that children often blame themselves.
One of the things that children who are in those circumstances frequently feel is what is wrong with me that my parents cannot get their act together. In other words, the
children take it on themselves that the situation has not been resolved and that is emotionally very painful. The reason the word trauma is used there is that it is traumatic in the sense of affecting deep levels of the child's personality. That is what the psychological evaluations have reflected that I've reviewed.Dr. Jeffries testified that severing defendant's parental rights would not do more harm than good. "[W]hat I am . . . saying is that since he has not achieved remission from alcohol dependence, he places the child at risk of harm, both children, and that that is highly problematic in terms of his role modeling and his behavior toward the child . . . And hence, the risk of harm to the children [is] paramount." She explained that insecure attachments "in and of themselves are harmful to children because they provide for children very unhealthy working models of relationships." She also explained that during the bonding evaluation, defendant spoke to the children "as if reunification with him was a certainty and that this was an expectation that it was going to happen." In turn, the children demonstrated that same expectation.
Dr. Jeffries testified that it was "a positive step from the point of view of adjustment" that the children currently no longer expect to live with defendant, even though it was very painful for them to come to that realization. She explained to the judge that the children do have an "affectionate tie" with defendant and "that is part of why they have been so wounded by the events that have taken place in their life with him." In other words, she testified that even if this State permitted open adoption, it would not be beneficial to the children to have continued contact with defendant so long as he continued his pattern of alcohol abuse and of failing to focus on the children's needs instead of his own.
Defendant did not present any expert testimony to rebut Dr. Jeffries' testimony. Nor did defendant or his attorney, at any time during the guardianship trial, suggest that there were other relatives or family friends who could care for the children.
With consent of counsel, the judge then interviewed the children in camera, but in the presence of the attorneys. Apparently, the interviews were not conducted on the record.
In summation, the children's Law Guardian reminded the judge that, in the interviews, both children stated that they wanted to be adopted even if it meant not having future contact with their father. The Law Guardian forcefully expressed his clients' wishes: "[I]t's very clear with [Amy] that she has expressed that she wants to be adopted. She knows fully the aspects of adoptions and . . . it's what she wanted and she expressed that to the Court." He also reminded the judge that Amy's foster mother was willing to adopt her.
The Law Guardian also told the court that Ben wanted to be adopted:
Likewise, [Ben] expressed that he wants to be adopted. We asked him about, you know, whom he might want to be adopted by and he actually expressed that there . . . is a former foster family and I believe they have a son around his age that he is friends with. . . . [H]e expressed that he would like to be adopted by them.Defense counsel did not object to, or contradict, the Law Guardian's description of the interview.
But, in any case, at this point in time, he has expressed . . . that he wants to be adopted and he's very clear about that. He doesn't want to maintain ties with his father.
And, I believe he was asked by counsel whether he would suffer if . . . the parental bond was severed and his response was "No."
I remember quite clearly, he said, "No."
There wouldn't be any suffering if he's adopted and he was fine with that.
[T]he children want to move on with their lives. They should be given an opportunity to move on with their lives . . .
Needless to say, it would have been preferable to have conducted the children's interviews on the record in some fashion. However, it is clear to us from the judge's oral opinion that the Law Guardian's description was accurate.
In an oral opinion placed on the record on June 10, 2014, the Family Part judge found that the Division proved all four prongs of the best interests test. See N.J.S.A. 30:4C-15a. Notably, the judge recalled her history of past interviews with the children, over the years. She recalled Amy's consistent expression "since June of 2013 all the way to today's decision of June of 2014 with respect to wishing to be adopted by her current foster parent who has always been committed to her since the beginning of this placement . . . and now . . . desires to adopt this child." With respect to Ben, the judge observed that, whereas he previously relied on his father to calm him down when he was angry, Ben was now able to "calm himself down" and he was able to make his own life choices.
[T]he Court is confident that in speaking to [Ben], this is a child who is self-aware, who has truly, and not out of anger with his father, although that is happening now, as well, but it's not an impulsive or emotional decision on his part the Court finds from all of my observations.
And he . . . has really chosen a new course for himself even though he is
unlikely to be adopted or won't be in the home he is in[.] [I]t appears that that's not because these folks don't care a great deal for him. They have helped him much with school. They are happy and a musical family. He's very involved with all their activities.
He feels, . . . appropriately, that they will not abandon him, . . . [T]hey're not able to commit to adoption, but from this safe place, [Ben] has been able to explore the possibility [of] a select home adoption . . . within a narrow self-defined . . . network of folks who have cared [for] him.
. . . .
So, even if he is not currently in a pre-adoptive home, he is not in an unstable situation for all of those reasons that I've just indicated.
Focusing on prong four, the judge distinguished New Jersey Division of Youth and Family Services v. E.P., 196 N.J. 88 (2008), because in that case the teenage child had no emotional support other than her very troubled mother, and she threatened to commit suicide if separated from her mother. Id. at 105, 111. In this case, the judge found, the children placed "absolutely no reliance on their father" and understood that "they need to move on from their relationship with him if they are going to be self-sufficient and attain what happiness they can in this life." She found that the children were emotionally ready to move past their relationship with defendant.
The judge found clear and convincing proof that terminating defendant's parental rights would not do more harm than good. She found that Amy was in a pre-adoptive home. She found that Ben was in a safe, loving and stable home where he could stay for the long term, even if the foster parents were not prepared to legally adopt him. She found that neither child would suffer severe or permanent harm if they could no longer talk to defendant on the telephone, which was the only type of contact they wanted to have with him.
II
In striking a balance between a parent's constitutional rights and the children's fundamental needs, courts employ the four-part guardianship test articulated in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 604-11 (1986), and codified as N.J.S.A. 30:4C-15.1(a):
a. The division shall initiate a petition to terminate parental rights on the grounds of the "best interests of the child" pursuant to subsection (c) of section 15 of P.L. 1951, c. 138 (C. 30:4C-15) if the following standards are met:
(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).]
In their application, the four factors above "'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. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
On this appeal, our review of the Family Part judge's decision is extremely limited. The issue is not how we would have decided this case if we had been the trial judge. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citation omitted). We consider whether there is sufficient credible evidence in the record to support the Family Part judge's decision. Id. at 279; N.J. Div. of Youth & Family Servs v. L.J.D., 428 N.J. Super. 451, 476-77 (App. Div. 2012). In our review, we owe particular deference to the trial judge's expertise and her credibility determinations. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
In this case, the judge was obviously very familiar with the children because she had interviewed them multiple times. Moreover, the judge clearly credited the testimony of Dr. Jeffries that the children's relationship with defendant was not helpful to them, and that terminating his parental rights would not result in serious or permanent emotional harm to them. Having reviewed the record, we find no basis to second-guess the judge's conclusions. Contrary to defendant's appellate argument, these children are not likely to wind up in "foster care limbo." One child is with a foster parent who wants to adopt her. The other child is in a long-term stable foster placement and has a potential adoptive family.
Moreover, both children are old enough to express their wishes. There is no dispute that they both unequivocally expressed their desire to be freed for adoption. Unlike the child in E.P., these children do not rely on defendant for emotional support. They recognize that he is unlikely to be there for them when they need him and they are ready to move on with their lives. They are entitled to that chance.
On this appeal, defendant argues that the Division failed to satisfy the second prong of the best interests test, in that the agency failed to offer him sufficient social services. He also contends that he is a fit parent who is able to care for his children. The trial judge found otherwise on both points, and there is sufficient credible evidence in this record to support her findings. See M.M., supra, 189 N.J. at 279.
In a related argument, defendant contends that the Division failed to satisfy the third prong by making sufficient efforts to reunify the family or place the children with relatives. Those arguments are without sufficient merit to warrant discussion in a written opinion, beyond the following comments. See R. 2:11-3(e)(1)(E).
Defendant contends that the Division made insufficient efforts to evaluate his twenty-one year old step-daughter as a possible placement for the children. Defendant did not raise that issue at the guardianship trial, and the record does not support his contention. To the contrary, the record reflects that the Division began the process of evaluating the step-daughter but then lost contact with her. Case worker Diaz's notes indicate that in 2014, she asked both defendant and Ben for a working telephone number for the step-daughter but neither one could provide her that information.
Moreover, the step-daughter is not a biological relative of either child and neither of them has any ongoing relationship with her. The Division's notes of a previous interview with her also indicate, at least preliminarily, that the step-daughter had no appreciation of the difficulty she would face in trying to raise these two children.
Defendant also argues that kinship legal guardianship (KLG) would be a preferable option to termination of parental rights, because it would ensure that defendant could have continued contact with the children. See N.J.S.A. 3B:12A-4(a)(4) (providing that the birth parent retains the "right to visitation or parenting time with the child, as determined by the court"). He contends that, at an August 9, 2013 status conference, the trial judge mistakenly ruled that KLG was not a legally permissible option unless the children's parent had a good relationship with the potential guardian. We have read the August 9, 2013 transcript and we conclude that is not what the judge said. She made the sensible observation that KLG was only likely to be a viable option for the children if the potential KLG guardian and the parents got along with each other. We agree. As a practical matter, it is highly unlikely that a potential adoptive parent would choose KLG instead, if that individual did not get along with the children's biological parent.
Additionally, on December 9, 2013, the judge approved the case worker discussing KLG with Amy's foster mother, so the judge clearly had not ruled it out. The Division's case records reflect that case worker Diaz discussed the possibility of KLG with Amy's foster mother in January and February 2014, and the foster mother understood the difference between adoption and KLG.
Defendant further argues that he should have been given a chance to voluntarily surrender his parental rights in favor of a potential adoptive parent. The short answer is that he was given that opportunity in open court, and he stated that he would not make a voluntary surrender of his rights to his children. Defendant's argument is also premised on his contention that at some point he will become a fit parent, and at that point, if his children have not been adopted they should be returned to him. It is clear from the trial judge's findings, which the record supports, that his premise is flawed.
Addressing the fourth prong, defendant also argues that there should have been a bonding evaluation between Amy and her foster parent. We have acknowledged that it will be the rare case in which bonding evaluations are not required. See N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009). However, in the circumstances of this case, the lack of a comparative bonding evaluation does not require reversal. In this case, the issue is not whether removing Amy from her foster parent and returning her to defendant's care would cause her serious harm. Defendant is unable to serve as her parent, and has no prospect of being able to care for her. Amy has been living with the same foster mother for three years. The Division's case reports over the years attest to the foster mother's ability to patiently and appropriately care for Amy, and document that Amy is thriving in that home. And the foster mother wants to adopt her.
Finally, although we do not rest our decision on this basis, we note that nothing in this record suggests that the children would be prohibited from contacting defendant after termination of his parental rights. They both apparently have cell phones; and it seems unlikely that any foster or adoptive parent could keep these children, who are now ages fifteen and sixteen, from having telephone contact with their father if they want to talk to him.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION