Opinion
DOCKET NO. A-1550-14T3
02-02-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.K., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.A.H. and J.J.M., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Foster, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Carroll and Sumners. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-166-14. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Foster, Assistant Deputy Public Defender, of counsel and on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Michelle D. Perry-Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd S. Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant K.K. (Kim) appeals the October 29, 2014 Family Part order terminating her parental rights to her then three-year-old son, J.A.H. (Jon), and her nearly two-year-old daughter, J.J.M. (Jess). Having considered Kim's arguments in light of the record and controlling law, we affirm.
We use pseudonyms for the children, parents, and resource parent to protect their privacy and for ease of reference.
The order also terminated the parental rights of Jon's biological father, M.H., and B.W., Jess's biological father, who do not appeal.
I.
We glean the following facts from the record. Kim, who first became a mother at the age of sixteen, is the mother of five children. The New Jersey Division of Child Protection and Permanency (the Division) became involved with Kim in 2009 when it was reported that her three children at the time, who were between the ages of two-years old and five-months old, were left home alone. The Division attempted to provide services to Kim, including therapeutic visitation, parenting assistance, and anger management classes, but she failed to comply. The Division subsequently filed a complaint for guardianship of her three children. This resulted in a July 2011 court order accepting Kim's surrender of her parental rights for her three children.
Two weeks after the surrender of her children, Kim gave birth to a fourth child, Jon. Shortly thereafter, the Division visited the home where Kim was living with her sister and determined that it was an appropriate place for Jon.
The Division became involved with Kim again on March 30, 2012, when she was arrested and incarcerated for shoplifting. Upon her release from jail on April 25, the Division case supervisor and manager advised her that the Division would remove Jon if he was left with her sister because an earlier home visit revealed that her sister had left Jon alone in the bed without a diaper on. The following month, Kim became homeless and the Division assisted her in finding a place to stay. From June to mid-July, the Division could not locate Kim until it received a report from Cooper Pediatrics that she tested positive for marijuana, and that she was pregnant.
On July 30, 2012, Kim was incarcerated for violating her probation. During her incarceration, Jon lived with Kim's two sisters, and their combined ten children. However, the Division did not seek to remove Jon.
On September 14, while Kim was still incarcerated, the Division conducted an emergency removal of Jon in accordance with N.J.S.A. 9:6-8.29, after learning that both of Kim's sisters had open cases with the Division. Kim's mother also had an open Division case and could not be considered as a placement for Jon. Thus, on September 18, the Division filed an order to show cause and verified complaint for custody, pursuant to N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12.
The trial court approved the removal and granted the Division custody of Jon. After two unsuccessful foster placements, Kim's father requested that R.M. (Rhonda), a family friend and licensed resource parent for the Division, be considered as Jon's placement. On November 24, Kim gave birth to Jess while she was an inmate at the Camden County Correctional Facility. The Division arranged a "hospital hold" for the baby because Kim could not provide an acceptable relative placement. On December 3, Jon was placed with Rhonda. On December 5, the court also approved the Division's custody of Jess, and she was also placed in Rhonda's home. Both children have remained with Rhonda since.
Meanwhile, on September 27, Kim's probation officer advised the Division that she had been sentenced to serve four years in state prison. Kim's supervised visits with Jon on several days in November did not occur because she was incarcerated in county jail. On December 5, 2012, Kim was transferred to Edna Mahan Correctional Facility (EMCF).
On January 4, 2013, the court, after consolidating both cases involving Jon and Jess, held a fact-finding hearing and found that under Title 30, although Kim had not abused or neglected Jess, she was unfit to care for her children due to her incarceration. That day, Kim informed the court that she would be released from EMCF in March 2013.
Thereafter, the Division's February 6, 2013 case plan stated, "At this time [Kim] is incarcerated and has not been able to work towards [] the goal of reunification" and the Division "has not been able to provide [Kim] with services due to her incarceration." The Division planned to carry out a "[r]eunification assessment" and offer defendant a "[f]amily [t]eam [m]eeting" (FTM), if EMCF would "permit[] [Kim] to participate." While the plan also records the Division's need to "document all efforts to get the family to participate in a FTM[,]" there is no documentation that the Division contacted EMCF about a FTM.
On February 26, Kim was released from prison and placed under the supervision of the Intensive Supervision Program (ISP), and began living with her sister again. After communicating with ISP, the Division's case worker decided to implement parenting classes, a psychological evaluation, and a substance abuse evaluation which Kim attended. Kim also had supervised visits, twice weekly, with Jon and Jess. By September 2013, the court granted her "partial unsupervised visitation" in addition to the twice-weekly supervised visits.
In October 2013, Kim found an affordable apartment in Camden. However, the ISP probation officer assigned to her supervision prevented Kim from renting the apartment because it was a "dangerous neighborhood" that would be unsafe for her children. Although Kim continued apartment hunting in November 2013, according to the ISP officer, Kim "ha[d] been starting and stopping jobs and [was] not stable." Furthermore, Kim stopped visiting her children for almost a whole month between December 2013 and February 2014.
On January 23, 2014, after having difficulties complying with the ISP requirements, Kim was arrested and spent two weeks in jail. On January 29, the trial court conducted a permanency hearing and entered an order approving the Division's plan of termination of parental rights, with adoption by Rhonda to follow. The court found that it would not be safe for the children to return home in the foreseeable future because Kim was incarcerated, had failed to complete court-ordered services and did not obtain safe and stable housing. The court was also comforted by the fact that the children had been in a stable foster placement for over a year.
On February 6, Kim was released from jail, but did not have housing. The Division also wanted to provide her referrals for individual therapy and parenting classes.
On March 19, the Division filed an order to show cause and complaint for guardianship of Jon and Jess. Approximately a month later, on April 28, ISP learned that Kim was arrested for shoplifting and resisting arrest. The next day, Kim was discharged from ISP and sent back to county jail on April 29, where she remained until she was transferred to EMCF on August 18.
On May 12, the court ordered Kim and the children's fathers to attend psychological and bonding evaluations to be performed by Division expert psychologist Dr. Frank Schwoeri. On May 27, the court also ordered that Kim's visitation be temporarily suspended because she was incarcerated and that she notify the Division upon her release from jail so that services and visitation could be reinstated.
In his psychological evaluation, Dr. Schwoeri found Kim to have "adequate" cognitive capacity to parent, but that she was "quite deficient in the areas of self-awareness and self-control, which are . . . strong risk factor[s] for poor parenting" as evidenced by "[h]er history of poor compliance with Division and [c]ourt ordered services and repeated incarcerations for violations of probation." Additionally, Dr. Schwoeri found that Kim was "quite emotionally unstable exhibiting poor emotional control once she [was] triggered" and had a "long-standing tendency towards impulsivity." Dr. Schwoeri also concluded that Kim had significant difficulties in judgment, and that she was experiencing stressors that compromised her parenting abilities. He diagnosed her with substance abuse "in sustained remission" and "Mixed Personality Disorder with features of narcissistic, histrionic, and antisocial personality."
As for Dr. Schwoeri's bonding evaluation of Kim, the doctor noted that Jon was "in the care of [Kim] from birth through about ten months" and that Jess had never been in the direct care of Kim. The doctor then noted that "specific attachment" in a child begins at six months, and is "typically fully consolidated by [twelve] months, but [Jon] was removed from his mother's care prior to that time." He further explained that "secure attachment only develops in the context of continuous ongoing caregiving interactions occurring relatively frequently over [a] relatively long period of time by a caregiver who is attuned, responsive, and reliably available, conditions which [Kim's] circumstances obviously have not allowed." Consequently, Dr. Schwoeri opined that "[Jon] has a specific attachment but not a secure attachment to his biological mother." Dr. Schwoeri ultimately concluded that both Jon and Jess would not suffer "significant or enduring harm" if the court terminated Kim's parental rights.
Kim contends that Jon was actually removed at thirteen months. It is unclear, though, from Dr. Schwoeri's report how he arrived at ten months. Nonetheless, it appears that this discrepancy has no material impact on his findings.
In his bonding evaluation of the children with Rhonda, Dr. Schwoeri found that Jon was "specifically attached to [Rhonda] and [was] on the road to developing a secure attachment to her if he [was] able to continue in her care." He found that Jess had developed a secure attachment to Rhonda, "the only parent that she has ever known." Dr. Schwoeri concluded that both Jon and Jess would suffer "significant and enduring harm" if removed from Rhonda's care.
In conclusion, Dr. Schwoeri recommended that the children remain in Rhonda's care since Kim is "most likely to continue to repeat [a] pattern of behavior which is inconsistent with minimally adequate parenting" and is "not able to provide the stability, guidance, nurturance, and protection which her children require."
Judge Kathleen M. Delaney presided over the guardianship trial held on October 28 and 29, 2014. Dr. Schwoeri and Division caseworker Jennifer Torres testified on behalf of the Division. Kim testified on her own behalf, and did not present any other witness.
Dr. Schwoeri testified consistent with his psychological and bonding evaluations. Torres testified about her involvement with the family and the family's history with the Division. Specifically, she detailed the children's removal, and the services offered to Kim, including visitation, parenting classes, individual therapy, and psychological evaluations. Torres testified that while Kim was in the county jail from July of 2012 until February of 2013, the Division was informed that no outside services were allowed into the jail. Torres was unaware if Kim ever sought any services or visitation while in the jail or if she inquired about how the children were doing.
In 2014, when Kim was again incarcerated in county jail from April 29 until her transfer to EMCF on August 18, it was not until August that Torres made her first call to the county jail to inquire about services for Kim. Torres explained that she was informed that no outside services could be provided at the county jail and that her multiple calls to the deputy warden there were never returned. Torres also testified that while she knew that the county jail offered "certain services" she never requested a list to give to Kim, and merely "assumed" that county jail staff had informed Kim directly.
Additionally, during Kim's incarceration at EMCF, Torres never contacted EMCF to ask for services for Kim within their facility. Instead, she relied upon Kim obtaining services that according to the institution's website were available in the facility. According to Torres, Kim told her that she was on a waiting list for parenting classes and was enrolled in GED classes.
Kim testified that she used marijuana, Ecstasy, Xanax, and Percocet from the ages of fifteen until nineteen, while she had custody of her children. She also testified that she used marijuana every day while both Jon and Jess were in her custody. She maintained that she stopped using marijuana for over two years, since she first found out she was pregnant with Jess. Kim also stated that she had signed up for child visitation at the EMCF, but she never saw her children while she was there.
On October 29, 2014, Judge Delaney issued a comprehensive oral opinion finding that the Division had established by clear and convincing evidence that terminating Kim's parental rights was in the children's best interests, in accordance with N.J.S.A. 30:4C-15.1.
As to the first prong, the court found that the Division proved the children's safety, health or development has been or will continue to be endangered by the parental relationship with Kim. The court stated:
And[,] it is this [c]ourt's opinion that because — especially because of [Kim's] inability to do all those things, to historically have appropriate housing, not to use drugs, not to be arrested, not to be out with her friends at one a.m. while there is FG litigation ongoing, after she's already — her parental rights for the older children have already been terminated, and after she's been given a chance to have a suspended sentence, given a chance to be on a bracelet, given a chance to have drug court, given a chance to be on ISP, and failed at all of those. Her admissions to using drugs while being the caretaker of the children. Her admission to being — going on the run, as she said, while she was on drug court, while this litigation was pending. Her missed appointments for jail at the pediatrician's office when she was the caretaker of the child. Her use — her admitted use of marijuana while she was the caretaker of [Jon], and up until she became pregnant with [Jess].
In my opinion, all of those, taking the totality of the circumstances prove that the child's health, safety, and development has been and will continue to be endangered by this parental relationship, by her own admissions, as well as by the . . . expert opinion of Dr. Schwoeri.
As to the second prong, the court found that the Division proved that Kim was unwilling or unable to eliminate the harm facing her children and failed to provide a safe and stable home, and that a delay in permanent placement would add to the harm. The court credited Dr. Schwoeri's opinion and Kim's own admission about her instability and incarcerations, and found there was no indication she would be able to obtain stable housing that would be suitable for her children. The court also found that the children were in need of permanency and had already been harmed, and would suffer serious and enduring emotional and psychological harm if separated from their foster mother.
With regard to the third prong, the court found that the Division had offered Kim appropriate services to address her issues. The court noted that the Division had been involved with Kim for years, both as a child and as an adult, and despite all the services offered to her, Kim had not consistently completed them. The court stated,
Countless number of services over the course of many years, including in this litigation, have been offered to [Kim] and she has not consistently completed these services. Some of [it is] because she's been incarcerated, but some of it's because she doesn't show up . . . .
It is her behavior and her lack — her inability to essentially live by society's rules, as well as live by the rules under her probation, under drug court, under ISP, under the electronic monitoring, and all of those chances she had in the criminal world to get herself back on track, and she failed at all of those. So it's not just because she has not just completed . . . services just because she's been incarcerated, it's
also by her actions and inactions that have led to her not finishing the services that have been offered to her over the course of multiple types of litigation and many, many years.
As for the fourth prong, the court found that termination of parental rights will not do more harm than good. The court credited Dr. Schwoeri's opinion about the children's attachments and the harm they would suffer if separated from their foster mother, and that disrupting the relationship would do a great deal of harm to the children.
Based upon these findings, the trial court entered a judgment of guardianship, terminating Kim's parental rights, with those of the fathers. This appeal followed.
II.
Before us, Kim alleges that the Division failed to prove by clear and convincing evidence the four prongs of the statutory best interests test to terminate her parental rights as defined in N.J.S.A. 30:4C-15.1a(1)-(4), and seeks reversal of the Family Part's decision. The Division and the Law Guardian disagree. From our independent review of the record, we are satisfied that substantial evidence exists to support the termination of Kim's parental rights substantially for the reasons expressed by Judge Delaney in her oral opinion. We amplify her analysis with the following comments.
Before discussing the specific arguments raised by Kim on appeal, we briefly review the well-recognized criteria for terminating parental rights and our role on appeal. "'[P]arents have a constitutionally-protected'" right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010) (citation omitted); see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). Although strict standards have consistently been imposed in the termination of parental rights, these rights "are not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 347 ( 1999).
To this end, for the Division to terminate parental rights and obtain guardianship of the child, it must satisfy the following four prong 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 prongs are not independent of each other; rather, they "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citation omitted), certif. denied, 190 N.J. 257 (2007). Application of the test is "'extremely fact sensitive,'" requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation omitted). The Division's burden of proof at trial is to establish its case by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994) (citation omitted).
Our review affords deference to the Family Part judge. First, we defer to the trial court's factual findings so long as they are supported by "'adequate, substantial, and credible evidence' on the record." N.J. Div. of Youth & Family Services v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). "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)). Second, we give deference to the judge's credibility determinations. M.M., supra, 189 N.J. at 279 (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Judges who hear the case and see the witnesses are "better positioned to evaluate the witness[es]' credibility, qualifications, and weight to be accorded [their] testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Third, there is special deference given to the Family Part's fact-finding based on its expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 413.
Nevertheless, "[w]here the issue to be decided is an 'alleged error in the [Family Part] judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." G.L., supra, 191 N.J. at 605 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The Family Part judge's legal conclusions and application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Kim argues that the first prong of the statutory requirement was not met because she was never found to have harmed Jon or Jess, or to put them at significant risk of harm. She contends that the court ignored the unrebutted evidence that she had not used any illicit substances for over two years, since she first found out she was pregnant with Jess. She notes that the Division's expert Dr. Schwoeri found that her substance abuse was in "sustained remission." Thus, she maintains that the finding that her behavior constituted serious and lasting harm is unsupported by the record. We disagree.
In order to terminate parental rights, it is not necessary to establish physical abuse or neglect, "as 'the psychological aspect of parenthood is more important in terms of the development of the child and [his] mental and emotional health than the coincidence of biological or natural parenthood.'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 480 (App. Div. 2012) (alteration in original) (citation omitted). A parent's action or inaction which causes significant emotional harm "'can constitute injury sufficient to authorize the termination of parental rights.'" Ibid. (citations omitted).
Although Kim did not physically abuse Jon or Jess, we are convinced that her actions and inactions have harmed them. The record supports the conclusion that the children suffered and will continue to suffer harm in Kim's care based on her extensive history of substance abuse, housing instability, incarcerations and an inability to properly and safely care for the children.
Moreover, we have no reason to disagree with Judge Delaney's assessment that Dr. Schwoeri was a credible witness. Dr. Schwoeri gave unrebutted testimony that Kim's remission was due in large part to her significant period of incarceration and that there was significant doubt that she had the ability to remain "stably abstinent from drugs and abuse when she was actually living in the community in an unstructured environment." There was also no difference of opinion regarding Dr. Schwoeri's judgment that Kim did not have the emotional maturity to correct her ability to parent properly and has been unable to ameliorate the harm that the children have suffered.
As for the second prong, Kim contends that the Division's proof that she is unable or unwilling to eliminate the harm or provide a stable home is based on an unfounded determination by Dr. Schwoeri that Kim would not be able to obtain housing for her family "within the foreseeable future" after her release from EMCF. We reject this argument.
There is clear and convincing evidence that Kim has had unstable housing and has entrusted her children to inappropriate caregivers. Again, Kim has presented no evidence refuting Dr. Schwoeri's assessment of her ability to provide stable housing, even with the services she has been offered after her release from incarceration. We also find persuasive, Dr. Schwoeri's testimony that there is a risk of Kim's further incarceration, as she has not developed emotional maturity as reflected in her inability to stay out of jail and to satisfy her probation requirements upon her release.
Furthermore, Dr. Schwoeri testified that Jess had a secure attachment and Jon had a specific attachment that was developing into a secure attachment, to their foster mother who was providing the stable home environment necessary for the development of a secure attachment. He also opined that the children would suffer severe and enduring harm if they were removed from Rhonda.
With regards to her contention that the third prong was not satisfied, Kim focuses her argument on the claim that the court was incorrect in finding that the Division satisfied its burden to provide her services while she was incarcerated. We disagree.
As was recognized by the court, the Division has a long history of providing services to Kim, starting with efforts to assist her in parenting her first three children. However, this proved unsuccessful, and led to her surrendering her parental rights prior to a guardianship hearing. Thereafter, the Division provided services to Kim when she gave birth to Jon and Jess. Yet, Kim's incarceration was a disruptive factor in the Division's efforts. Arguably, the Division could have tried more diligently, but we cannot say it failed its statutory duty. The Divison's "efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." In re Guardianship of DMH, 161 N.J. 365, 393 (1999). Credible evidence suggests that much of the fault lies with the impediments to providing services during Kim's significant custody in county jail. Yet, despite defendant's repeated incarceration the Division made "[c]onsistent efforts to maintain and support the parent-child bond . . . ." Id.
Lastly, concerning the fourth prong, Kim maintains that Dr. Schwoeri's opinion that Jon's attachment to her would not be severely harmed is based on an erroneous calculation. Dr. Schwoeri opined that the first twelve months of a child's life establishes the bond with a parent, and Jon was removed from Kim when he was ten-months-old before a secure attachment occurred. Kim contends that Jon was actually thirteen-months-old when the Division obtained care and custody of him, and given Dr. Schwoeri's mistaken belief that she did not care for Jon for his first year following his birth, Dr. Schwoeri's opinion should be rejected.
Kim also contends that disruption of a bond with Jess is an insufficient basis for the termination of her parental rights in cases where the Division has failed to show that the parent's "actions or inactions substantially contributed to the forming" of the bond between the child and the foster parent. N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 59 (App. Div. 2010). Regarding Jess, the court ruled, in concordance with Dr. Schwoeri, that since Rhonda was the only caregiver the child had ever known, removal from her care would be too harmful. Thus, Kim argues that her inferior bond with Jess was the result of the Division's failure to provide visitation when she was incarcerated and other failures to fulfill its statutory obligations.
Kim's arguments are without merit. The fact that Dr. Schwoeri may have mistakenly concluded that Jon was removed from Kim's custody before his first birthday, does not discredit his opinion that Jon is so attached to Rhonda that removing him from her care would cause Jon to suffer greater harm than from permanent disruption of Kim's parental rights. In light of Kim's noted failure to properly care for Jon due to her incarceration, substance abuse, housing instability, and lack of emotional support, Dr. Schwoeri's unopposed and credible opinion is well-founded in the record.
As for Jess, the fact that she did not develop a bond with Kim, but rather with Rhonda, was the direct result of Kim's failings. Jess was born when Kim was incarcerated, and approximately two weeks later, she joined Jon in Rhonda's care. Kim remained confined for three months thereafter, and she was not in a position to properly care for either child, when she was released. Kim's ability to bond with Jess was further affected by her failure to take full advantage of visitation services. And a little over a year after Jess's birth, Kim was incarcerated again, further impeding Kim's ability to develop a bond and to be reunified with her children. Thus, Kim's lack of a bond with Jess was not the fault of the Division.
The Division has therefore established by clear and convincing evidence that the statutory best interests test warrants the termination of parental rights.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION