Opinion
DOCKET NO. A-1546-14T1
12-01-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.C., Defendant-Appellant, and E.A., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF R.C., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (R. Marcel Pirtea, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-43-14. Joseph E. Krakora, Public Defender, attorney for appellant (Catherine Reid, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (R. Marcel Pirtea, Designated Counsel, on the brief). PER CURIAM
Defendant K.C. appeals from an October 27, 2014 Family Part order terminating her parental rights to Ricky, her youngest child. For the reasons that follow, we affirm.
We use a pseudonym to protect the child's privacy.
I.
We discern the following facts from the guardianship trial record. Defendant is the mother of four children, and has an extensive history with the Division of Child Protection and Permanency (Division). Defendant's first contact with the Division occurred in August 2008, about five years before Ricky was born, when the Division received a referral alleging domestic violence between defendant and J.T. — a former boyfriend, and the father of two of defendant's older children. Following this referral, the Division began to actively monitor the family.
The Division received a second referral in October 2009, again alleging domestic violence between defendant and J.T. Following a Division investigation, defendant obtained a final restraining order (FRO) against J.T.
Despite the FRO, defendant continued to maintain contact with J.T. This led to a third referral for domestic violence at the hands of J.T. in December 2009. Notwithstanding the ongoing domestic violence perpetuated against defendant and her children, the Division did not complete its investigation of this third referral because defendant and her children went missing. In January 2010, the Division learned that defendant — without informing the Division — had moved with her two children to Connecticut.
Following a brief move to Michigan, defendant and her children moved to Florida with J.T. in early 2010. Following yet another incident of domestic violence in Florida, J.T. was arrested and defendant moved back to New Jersey in July 2010. That same month, defendant gave birth to her third child. J.T. attempted to visit defendant and the newborn baby in the hospital, but was removed by hospital security due to the FRO against him.
Once again, following the birth of her third child, defendant moved with her children to Connecticut without informing the Division. In January 2011, the Connecticut Department of Children and Families (CDCF) removed the three children from defendant's custody due to her noncompliance with psychotherapy, parenting skills classes, and domestic violence counseling. Defendant surrendered her parental rights to these children in early 2014, and the children have all been adopted.
In January 2013, defendant gave birth to Ricky. Due to defendant's history of exposing herself and her children to domestic violence, her failure to comply with CDCF services, and the fact she had become a perpetual flight risk, the Division conducted an emergency removal and placed Ricky in a resource home. The Division also initiated services for defendant, including domestic violence counseling, individual psychotherapy, and WR Creative Counseling (WRCC).
Similar to her experience in Connecticut, defendant failed to comply with the services to which the Division referred her. She was terminated from WRCC on two separate occasions for failing to attend required programs, despite the Division's efforts to accommodate her schedule and financial needs. From January to December 2013, defendant missed approximately fourteen arranged visits with Ricky. Furthermore, on multiple occasions, defendant refused to allow the Division to perform in-home visits.
On December 12, 2013, based on the defendant's ongoing failure to comply with court-ordered services and inconsistent visitation with Ricky, the family court judge approved the Division's permanency plan of termination of parental rights. Even following the Division's initiation of termination proceedings, defendant continued to miss scheduled visits. At a February 12, 2014 meeting with a Division caseworker, defendant claimed that she was unable to attend her required services because she suffered from migraines and had no means of transportation.
In the coming months before the guardianship trial, defendant became more compliant with counseling appointments, only missing two visits in July 2014.
II.
The guardianship trial began on September 17, 2014. The Division called four witnesses: an expert in psychiatry, Dr. Samiris Sostre; an expert in clinical psychology, specifically as to parenting capacity and bonding, Dr. Allison Winston; and two Division caseworkers.
The caseworkers testified to defendant's extensive history of domestic violence during her time with J.T., as well as her failure to comply with court-ordered services in both Connecticut and New Jersey. A caseworker from the Division's adoption unit testified that defendant continued to depend on others for financial support. Additionally, the caseworker testified that Ricky was placed with loving and caring foster parents, who were committed to adopting him.
Dr. Sostre diagnosed defendant with adjustment disorder and personality disorder with narcissistic and histrionic traits, all of which negatively impact her ability to care for a child. In light of these disorders, Dr. Sostre testified that defendant lacks the ability to empathize with the needs of others and excessively depends on others for support. Although Dr. Sostre conceded that personality disorders such as those exhibited by defendant can be overcome, he explained that successful treatment normally requires years of active and consistent psychotherapy.
Dr. Winston testified that defendant was not capable of caring for Ricky now or in the foreseeable future. She explained that Ricky, who had developed strong emotional ties to his foster parents, would suffer serious and enduring harm if he were removed from his foster parents' care and returned to defendant.
Defendant called three witnesses in addition to testifying herself: her current boyfriend, C.D.; a worker from WRCC; and defendant's case manager from another resource facility.
C.D. testified that defendant was living with him, his father, and his brother in a one-bedroom apartment. He said that he was willing to bring Ricky into his household and help defendant take care of him. He related his plan to marry defendant within two or three years, and indicated he would obtain a larger apartment if defendant regained custody of Ricky.
The WRCC employee testified to defendant's inconsistent attendance record at scheduled programs, and that she was unable to determine whether defendant would be able to employ the skills taught in these programs as a result of her poor attendance. Defendant's case manager testified that she had witnessed defendant engage in positive interactions with Ricky at supervised visits.
Finally, defendant testified to her relationship with J.T. and the various forms of abuse that she and her children suffered during that relationship. She expressed her regret for not complying with Division services and described her recent steps to comply with services regularly in an effort to regain custody of Ricky.
J.T.'s abuse included pulling defendant's hair and hitting her. If defendant remained unprovoked, J.T. would direct the violence toward defendant's two-year-old daughter. The judge noted that J.T. owned a gun, "and even put it to the head of [defendant's] daughter when she threatened to leave him." At one point, defendant fled with the children to Michigan and lived in a shelter. However, J.T. tracked defendant down, and was able to convince her to move to Florida with him. In Florida, the abuse continued, including forcing defendant to have sex with him in front of the children.
The Law Guardian did not present any witnesses, but supported the Division's application for termination of defendant's parental rights.
After reviewing the testimony and evidence of record, the judge terminated defendant's parental rights to Ricky, concluding that the Division had satisfied all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Further, the judge terminated the parental rights of Ricky's father — E.A. — who was never located by the Division despite reasonable efforts to find him. This appeal followed.
III.
To justify termination of parental rights, the State must produce clear and convincing evidence to satisfy the following four prongs of the "best interests" test:
(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).]
These four criteria "are not discrete and separate, but relate to and overlap with one another to provide a comprehensive standard that identifies a child's bests 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)). These considerations are extremely fact-sensitive and require particularized evidence. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).
The scope of our review regarding a decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). We will not disturb a family judge's factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). We generally defer to the Family Part's expertise, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and will not disturb conclusions made by a family judge unless they are "so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 59 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
As in every case, family judges have an obligation to articulate their factual findings and legal conclusions. R. 1:7-4. All trial courts "must state clearly [their] factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 570 (1980). A failure to do so constitutes "a disservice to the litigants, the attorneys and the appellate court." Id. at 569-70 (citation omitted).
At the onset of our analysis, we note that the trial judge's oral decision in this case should have been more comprehensive in relating his factual findings to the four prongs of the best interests test. Nevertheless, as we explain below, a careful review of the relevant evidence in the trial record supports the trial judge's conclusion that the Division satisfied all four prongs of the best interests standard. We address each prong in turn.
A.
The first prong of the best interests test examines the impact of harm caused by the parent-child relationship on the child's health over time. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004). The harm facing the child "need not be physical," as "[s]erious and lasting emotional or psychological harm to [the] child[ ] as the result of the action or inaction of [his or her] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citation omitted). For instance, the failure of a parent to provide a permanent, safe, and stable home engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999); see also N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450 (2012) (finding the Division satisfied prong one where the mother's "commitment to and dependency on" the child's dangerous father "overwhelmed her willingness or capacity to protect her child").
In this case, the judge found Dr. Sostre's testimony particularly instructive when determining that Ricky's safety, health, and development would be endangered by defendant's continued parental relationship. Pointing to Dr. Sostre's diagnosis of personality disorder, the judge stressed that defendant lacked the ability to empathize — "a critical factor in raising children." Defendant's lack of progress in her court-ordered programs over a substantial period of time, in conjunction with Ricky's need for stability and permanency, clearly indicated that Ricky would be harmed if reunited with defendant now or in the immediate future.
On appeal, defendant argues that her personality disorder was not a sufficient basis on which to find harm to Ricky within the meaning of N.J.S.A. 30:4C-15.1(a). Defendant argues that her inability to empathize, absent any particularized instance of harm or threat of future harm, is insufficient to satisfy the first prong of the best interests test. She claims that the judge's determination of imminent harm in the event of reunification was speculative, absent any concrete indication that harm would occur. To support this point, defendant cites the following excerpt from In re Guardianship of A.A.M., 268 N.J. Super. 533 (App. Div. 1993):
To ask a court to terminate parental rights because the individual lacks "the fundamental personal qualities necessary for minimally adequate parenting" is to present the trial judge with a decision that would tax Solomon. And to empower a court to terminate parental rights on such grounds raises the possibility of grave misuse in the future.
[Id. at 547-48.]
We agree with defendant that her parenting abilities should not have been the focal point when assessing the first prong of the best interests test, and that Dr. Sostre's testimony alone is insufficient to support the conclusion that the first prong was satisfied. Nevertheless, we agree with the judge's conclusion because the record contains substantial credible evidence demonstrating the risk of harm to Ricky if he were reunited with defendant.
The Division's clinical psychology expert, Dr. Winston, testified that Ricky would suffer serious harm from being separated from his foster parents and reunited with defendant. She explained that Ricky views his foster parents as his psychological parents, and to remove him from a home where all his needs have been consistently met would be traumatic to him. Furthermore, she concluded that to reunify Ricky with defendant, who continues to have psychological difficulties and has failed to consistently comply with services to address her issues, would cause Ricky serious and enduring emotional harm.
As the judge noted in reviewing the testimony of Dr. Winston, while defendant did attend some domestic violence classes, she "could not articulate a solid, concrete plan, to leave an abusive partner, if domestic violence arose again in a relationship."
Furthermore, defendant failed to sever ties with J.T., who consistently posed a threat of abuse to her children. This pattern of conduct serves as a probative indicator that defendant, if reunited with Ricky, would likely subject him to a constant and pervasive risk of harm by way of exposure to abusive men in defendant's life.
Accordingly, we conclude that the judge correctly determined that the Division established the first prong of the best interests standard by clear and convincing evidence.
B.
To satisfy the second prong of the best interests standard, the Division must demonstrate "not only that the child's health and development have been and continue to be endangered, but also that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348 (citation omitted). The second prong may be satisfied by a demonstrated inability or unwillingness to resolve issues that prove detrimental to the child, see N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996), or "by establishing that a parent is unable to protect a child from the dangers posed by another parent, and therefore unable to provide a stable and protective home." F.M., supra, 211 N.J. at 451.
The second prong, "in many ways, addresses considerations touched on in prong one." Ibid. The prongs "are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." D.M.H., supra, 161 N.J. at 379.
In this case, the judge placed significant reliance on a letter from a WRCC therapist when determining that defendant was unable to provide a safe and stable environment for Ricky. Specifically, the letter established two critical deficiencies that are relevant to this prong of the analysis: defendant's inability to address her history of abuse; and her poor relationship judgment, emotional dependency on the men with whom she is involved, and lack of self-protective and child-protective skills.
On appeal, defendant first argues that the trial judge improperly relied on this letter because its author did not testify at trial and thus was not available for cross-examination. As defendant does not cite to any objection to this letter at trial on such grounds, we review the letter's admission for plain error. See R. 2:10-2.
Key to this inquiry, even assuming the letter should have been barred from evidence, the error of allowing its admission into evidence would not be "sufficient to raise a reasonable doubt as to whether the error led the [fact finder] to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). The contents of the letter, including those regarding her ability to raise a child, were supported by expert opinion testimony provided at trial. Dr. Winston specifically testified that the letter "agrees with my conclusions . . . that she's not capable of parenting because she has various psychological and parenting issues that need to be addressed." As the letter's contents were supported by an expert who was subject to cross-examination, the judge's reliance on the letter did not constitute plain error.
Next, defendant argues that the family court incorrectly focused on the time it would take for defendant to overcome her personality and parenting deficiencies, and failed to appreciate that she had the ability and potential to overcome those deficiencies. She points to the testimony of Dr. Sostre and Dr. Winston, who both conceded that defendant might be able to provide a safe and stable environment for Ricky if she spent more time in counseling and other services.
This argument lacks merit when the record is viewed in light of New Jersey's strong public policy in favor of providing permanent and stable living conditions for children. See K.H.O., supra, 161 N.J. at 357. Defendant had numerous opportunities to participate in Division-sponsored programs designed to remediate the issues that caused the Division to remove Ricky from her custody. Participation in these programs could have given defendant the tools to provide a safe environment for Ricky. However, over the course of almost two years, defendant simply failed to participate in these programs to the extent necessary to improve upon her known conditions and remove the potential of harm to Ricky in the event of reunification. The mere possibility that defendant could improve her attendance in programming and facilitate positive changes in her life, absent any objective indication that such improvement would occur, is insufficient to disturb the judge's decision that "[defendant] is unable to provide a safe and stable home."
The judge correctly reasoned that defendant's personality issues would subject Ricky to an ongoing risk of harm. Citing to defendant's emotional and financial dependence on her current boyfriend, her history of poor relationship judgment, and her inability to protect her children from abusive men she inserts into their lives, the family judge adequately supported his decision with regard to prong two. As the WRCC therapist's letter stated, and the family judge reiterated, "No significant progress can be reported at this time." This letter speaks directly to defendant's inability or unwillingness to improve upon the conditions that pose a threat of harm to Ricky. See B.G.S., supra, 291 N.J. Super. at 592. Therefore, the family court's conclusion that the Division established prong two was supported by clear and convincing evidence in the record.
C.
The third prong of the best interests standard contemplates efforts focused "on reunification of the parent with the child" and the provision of individualized "assistance to the parent to correct and overcome those circumstances that necessitated the placement of the child into foster care." K.H.O., supra, 161 N.J. at 354 (citation omitted). This prong requires the court to consider alternatives to termination of parental rights, N.J.S.A. 30:4C-15.1(a), such as placement with a relative caretaker, N.J.S.A. 30:4C-12.1(a), or establishment of a kinship legal guardianship. N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010).
The Division may not "embark on a course set for termination of parental rights and adoption by a foster parent without at least first exploring available relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011); see also N.J.S.A. 30:4C-12.1. An important objective in a guardianship case is "prompt identification of relatives and notice to them of the results of the investigation and the potential for termination if the child remains in foster care." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014) (quoting K.L.W., supra, 419 N.J. Super. at 580). However, "although the Division has a statutory duty to evaluate relatives as potential caretakers, there is no presumption favoring the placement of a child with such relatives." Id. at 82. "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." Id. at 85.
The parties do not dispute on appeal that there are no sufficient relative placements that would suffice in this case.
In this case, the judge cited to the extensive efforts made by the Division to provide corrective counseling and services to defendant, in order to give her the tools to create a positive and safe environment for raising a child. Division referrals for counseling span back to 2008, following the first allegations of domestic violence in defendant's home. The record portrays an extensive involvement with the Division following that referral, including additional efforts by the child protective service agencies in Connecticut and Florida. These efforts include recommendations for individual psychotherapy, parenting classes, and domestic violence classes at WRCC in 2013.
Despite these efforts, defendant consistently displayed an inability to comply with these services, even when required to perform them by a court order. The judge determined that defendant's excuses for not attending these programs — which included migraines and lack of transportation — lacked merit. As the judge noted, "Notwithstanding her noncompliance, the Division further offered to schedule her services around her schedule, and offered her bus passes, even though she lived a few blocks from [WRCC]."
On appeal, defendant does not contest that the Division provided extensive services to her. However, she claims that "these services pale as true reunification efforts when viewed in the larger context of what actually happened in this case." Citing to N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), defendant asserts that the family court improperly relied on the services offered by the Division after removing Ricky, rather than the Division's efforts to assist defendant in raising Ricky prior to his removal. She claims that the Division "set up service hurdles for [defendant] to jump before she could have her child back — and then said she did not jump high enough."
This argument clearly lacks merit. Our Supreme Court has clarified that services rendered "in conjunction with [a] reunification plan" can be considered for purposes of determining whether the third prong has been satisfied. D.M.H., supra, 161 N.J. at 390-91. Defendant's reference to I.S. was taken entirely out of context. She does not cite to any legal authority to support her proposition that the Division's efforts to remedy her unstable family environment, following Ricky's removal, cannot be considered for purposes of assessing whether the Division made reasonable efforts to assist defendant pursuant to N.J.S.A. 30:4C-15.1(a). As this is her only argument with respect to the third prong, there is no basis to reject the judge's conclusion that the Division established the third prong by clear and convincing evidence.
D.
The fourth prong assesses whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). It "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The question to be addressed under the fourth prong "is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355. Where the child has bonded with a foster family willing to provide him with a permanent home, the harm inherent in the destruction of the biological ties may be outweighed by the value of securing permanency with an adoptive family. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
With regard to this prong, the judge relied on two pieces of evidence: Dr. Winston's testimony that removing Ricky from his foster parents would cause him serious and lasting harm, and the Division adoption worker's testimony that Ricky's foster parents strongly desire to adopt him. Accordingly, the judge concluded that terminating defendant's parental rights would not do more harm than good.
On appeal, defendant points to the fact that Ricky was removed almost immediately after birth, arguing that the bond Ricky has with his foster parents should have no bearing on the analysis because defendant was never given a chance to secure a strong bond with her son. Defendant supports this argument with the following passage from I.S.:
[N]o expert was needed to establish the common sense notion that this child will be more bonded with his foster parents than with defendant. There are one hundred
sixty-eight hours in a week. Of these . . . this child spent one hundred sixty-seven of them with his foster parents and only one hour with his biological parent, or less than one-half of one percent of the time. Is it surprising, then, that, at that time, this child was more bonded with the foster parents?In other words, defendant argues that the fourth prong should have no bearing on the analysis in this case because the outcome of the bonding question was stacked against her the moment Ricky was removed from her custody. In the cases cited by defendant, however, both the Supreme Court as well as this court considered the other three prongs to be dispositive on the termination issue, despite evidence that a child had a stronger bond with foster parents than with the biological parents. See, e.g., N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 59 (App. Div. 2010) (holding that a conclusion regarding the fourth prong cannot, standing alone, support termination of parental rights).
[I.S., supra, 202 N.J. at 182.]
Even if we were to disregard the evidence of Ricky's close bond with his foster parents in the case at hand, we find no basis for overturning the judge's decision. Unlike the cases cited by defendant, where the other prongs weighed against termination of parental rights, those prongs clearly support terminating defendant's parental rights to Ricky in this case. Therefore, even giving full credence to defendant's legal argument, application of the remaining prongs of the best interests test clearly supports terminating defendant's parental rights.
Under the fourth prong, termination of defendant's parental rights is clearly in Ricky's best interests. Accordingly, the record supports the judge's conclusion that the Division satisfied all four prongs of the best interests standard by clear and convincing evidence. Defendant's remaining appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION