Opinion
DOCKET NO. A-5298-13T4 DOCKET NO. A-5299-13T4
06-12-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.C. and B.V., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.C., T.V., Z.V., and K.V., minors.
Joseph E. Krakora, Public Defender, attorney for appellant L.C. (Catherine Reid, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant B.V. (Allison Haltmaier, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea DeGuilo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.C., T.V., Z.V., and K.V. (Linda Vele Alexander, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FG-18-104-13. Joseph E. Krakora, Public Defender, attorney for appellant L.C. (Catherine Reid, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant B.V. (Allison Haltmaier, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lea DeGuilo, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.C., T.V., Z.V., and K.V. (Linda Vele Alexander, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, L.C. (the "mother") and B.V. (the "father") (collectively "defendants") appeal from a June 24, 2014 order terminating their parental rights to their children, J.C., T.V., Z.V., and K.V. (collectively the "children"). We affirm.
Defendants are the biological parents of T.V., Z.V., and K.V. The mother is J.C.'s biological mother but the identity of J.C.'s biological father is unknown.
I.
In March 2011, the Division of Child Protection & Permanency (the "Division") received a referral from a hospital reporting a severely underweight and malnourished seven-month-old K.V., who was in need of resuscitation. K.V. was born prematurely, and the mother had failed to follow-up with the recommended medical care for K.V. The next day, the Division executed a Dodd removal of the children. Pre-placement physicals revealed that the children were behind in their immunizations and had tooth decay; T.V. and J.C. were missing all of their upper teeth; Z.V. had viral gastroenteritis; and T.V. had tinea capitis. The Division obtained custody of the children and made placement arrangements.
The mother suffered from severe preeclampsia and acute end-stage renal failure. The mother receives dialysis three times a week.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, as authorized by N.J.S.A. 9:6-8.29 of the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82.
Tinea capitis is a fungal infection of the scalp. Stedman's Medical Dictionary 1991 (28th ed. 2006).
The Division provided defendants with numerous services including parenting programs, therapeutic visitations, psychological and psychiatric evaluations, transportation, and individual therapy. Although defendants participated initially, they soon became noncompliant. The Division also assessed the maternal grandparents, a family friend (the "friend"), and the mother's aunt (the "aunt") as alternative placements, but ruled out each.
In August 2011, the mother pled guilty to second-degree child endangerment, N.J.S.A. 2C:24-4a, the father pled guilty to third-degree child endangerment, N.J.S.A. 2C:24-4a, and they both served prison terms.
Thereafter, on multiple occasions, the father was incarcerated on unrelated charges.
Meanwhile, the Division placed the children in the same resource home with the resource parents expressing a desire to adopt them. The father subsequently signed a voluntary stipulation of neglect in lieu of a fact-finding and the Family Part found that the mother abused or neglected K.V. under Title 9. A judge entered a permanency order approving the Division's plan to terminate defendants' parental rights and for the resource parents to adopt the children.
The Division continued to provide services to defendants. The court entered a no contact order against the father pending completion of a risk assessment, while the mother proceeded with therapeutic visits with the children. The Division's psychologist conducted bonding evaluations of the children with both the mother and the resource parents. During this period, the Division received reports from J.C. and T.V.'s therapist (the "therapist") that J.C. and T.V. reported prior physical abuse by the father; they experienced increased nightmares, bed-wetting, and anxiety levels upon defendants' release from prison and resumed visitations with the mother; and feared reunification with defendants.
A Family Part judge held an eight-day guardianship trial. The judge heard testimony from a Division caseworker, the therapist, several expert psychologists, the friend, the aunt, and the resource parents. In the midst of trial, the father moved to vacate the prior no contact order so that he could obtain a bonding evaluation, but the judge denied that motion. At the conclusion of trial, the judge terminated defendants' parental rights to the children.
On appeal, defendants argue that the judge erroneously concluded that the Division proved by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1a. The mother also argues that the judge impermissibly shifted the burden of proof to her. The father additionally contends that the judge abused his discretion and deprived him due process by denying the bonding evaluation.
II.
Our review here is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence[,]" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), we only disturb factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
An individual's parental rights may be terminated if the Division shows that:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;A decision to terminate parental rights must be supported by clear and convincing evidence in the record. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986).
(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 [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-15.1a.]
Applying these standards, we reject defendants' arguments that the Division failed to prove by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1a.
A.
As to prong one, that the children's safety, health or development have been or will continue to be endangered by the parental relationship, the father argues that there was no evidence that he directly harmed his children. The father contends that the judge erroneously relied on the stipulation of neglect and guilty plea as to K.V., and mere allegations of physical abuse as to Z.V. and T.V. The mother does not dispute that the Division proved this prong by clear and convincing evidence as to her.
Here, the judge found that the father
admitted to endangering the welfare of [K.V.]. Furthermore, the evidence establishes that [the father] hit the children, as they reported and as acknowledged by [the mother] in her evaluations. [The father] withdrew himself from the solicitude, nurture and care of the children over the course of the past two years by failing to make any effort to parent. He has failed to complete any treatment for mental health and substance abuse and made no effort to comply with the
preconditions for re-engaging in visitation with the children.
There has been no contact between [the father] and his children in approximately two years. He has not provided a plan for ensuring permanency and stability or a plan to establish a parental relationship with his children.
[(Citations omitted).]
There is no reason to disturb these findings. The father stipulated to neglecting K.V. and pled guilty to endangering the welfare of K.V. There is ample evidence in the record that the father also physically abused T.V. and Z.V. Most telling of the harm caused to them were the children's mental and physical states when the Division obtained custody of them. Even so, the father has not been in contact with his children in two years and has failed to take the necessary steps to reinstate visitation. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (indicating that "[a] parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child").
B.
As to prong two, that defendants were unwilling or unable to eliminate the harm facing the children, the mother argues that the judge erred because there is ample evidence demonstrating that she complied with the Division's requests and can eliminate the harms facing the children. The father does not raise any arguments as to prong two.
Here, the judge found that
the greater weight of the credible evidence leads to the conclusion, clearly and convincingly, that [the mother] is . . . unable to eliminate the harm facing her children and is unwilling or unable to provide a safe and stable home for the children. . . .
The evidence supports a finding that [the mother] has not demonstrated an ability to parent her four young children. The children present with significant behavioral issues. [The mother]'s own expert acknowledged that she suffers from a debilitating medical condition which impairs her functioning, motivation, energy and judgment. He observed that [the mother]'s cognitive functioning over time would deteriorate, specifically noting problems with attention, memory, arousal and spatial issues. Even [he] concedes that she is incapable of independently parenting her children.
[The mother] argues that the court should disregard any argument her current medical condition (end[-]stage renal failure) interferes with her ability to parent. She contends that she has a "support system of family and friends [who] are available to assist her." Unfortunately, [the mother]'s serious medical condition is a fact of life that this court is not free to ignore. Further, [the mother] did not present substantive, persuasive evidence of a support system of family and friends who are ready, willing and able to assist her. The testimony from
[the friend] and [the aunt] fell far short of fulfilling [the mother]'s obligation to demonstrate her ability to safely parent her children and provide them with a safe and stable home.
[The mother], who did not testify at trial, has offered no reunification plan and she was unable to establish that she has a stable home to offer the children. The children continue to suffer from anxiety, fear and nightmares. The court agrees that further delay in determining permanency, when the children have . . . only therapeutic contact with their mother (who is not in a position to care for them), will only add to their suffering.
[(Citations omitted).]
Although there is some evidence of the mother's compliance and efforts for reunification, there is substantial evidence in the record that despite those efforts, she is still unable to eliminate the harm facing her children or provide a safe and stable home for them. The judge observed the witnesses from both sides and carefully weighed the evidence presented. Thus, the judge's conclusion cannot be said to offend the interests of justice.
C.
Turning to prong three, that the Division made reasonable efforts to provide services to the parents to correct the circumstances which led to the child's placement outside the home, and that there were no alternatives to the termination of parental rights, the mother argues that the Division did not make reasonable efforts to reunify her family because it failed to facilitate meaningful visitations, it did not seek out viable placements with family relatives, and it did not explore alternatives to termination of her parental rights. The father additionally argues that the Division did not make reasonable efforts to provide services because it did not provide him bonding evaluations with his children.
Here, the judge found that
[t]he Division made reasonable efforts to correct the circumstances that led to the removal of the minor children. The services offered by the Division included: substance abuse evaluations and treatment, mental health counseling, psychological evaluations, psychiatric evaluations, supervised visitation during the start of the litigation, transportation, therapeutic visitation, parenting skills courses, individual mental health counseling, transportation and ongoing case management. The record supports a finding that [the mother] has not been able to remedy, sufficiently, her parenting shortcomings.
The court commends [the mother] on the efforts she has made at compliance, in endeavoring to address the Division's concerns. Unfortunately, her medical condition as well as other limitations discussed above, have inhibited her ability to provide a safe and stable home for her children.
The court is satisfied that the Division explored alternatives to terminating [the mother]'s parental rights,
including placement with relatives and friends identified by [the mother]. None are currently appropriate for the children's placement. At the time they were proposed as alternative placement options, neither [the friend] nor [the aunt] had adequate housing to properly accommodate [the] children.
The judge acknowledged that the Division did not issue formal "rule out" letters to the friend and the aunt. However, the judge concluded this "technical non-compliance" did not alter the fact that "the Division made reasonable efforts to consider alternative placements, including relative placements." The judge found that the Division placed the friend and the aunt "on notice of the reasons why they were ineligible to be considered for placement." In addition, the mother, the friend, and the aunt had "ample opportunity to demonstrate to the Division that they could provide an approved safe and stable home for all of the children."
The children's maternal grandmother was also put forth as a placement option, but the Division ruled her out, and issued a formal letter to that effect.
We agree with the judge that the record contains substantial, credible evidence of the Division's efforts to provide numerous services since receiving the March 2011 referral. There was also clear and convincing evidence that the Division considered all alternative placements, supporting the judge's conclusion. Any technical non-compliance here should not cause the reversal of termination as it is not in the "best interest of the child[ren]." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011).
As for the father, the record is clear that the Division attempted to provide reasonable services to him, but he did not avail himself of them. And the father chose not to comply with the Division's requirements, including completion of a risk assessment. We conclude that the Division met its prong three burden as to the father.
We will address the father's bonding evaluation contention in section III.B.
D.
For prong four, that the termination of parental rights will not do more harm than good, the mother argues that there is insufficient evidence in the record to support the judge's finding that termination of her parental rights is in the best interests of the children. The father argues that there is insufficient evidence of the relationship between him and his children for the judge to conclude that termination of his parental rights is in the best interests of his children.
Here, the judge found:
As to [the father], the evidence clearly and convincingly establishes that he has no
current relationship with his children. He has not had contact with them in approximately two years and the children have expressed extreme fear of him. There is no parental relationship to be disrupted if [the father]'s parental rights are terminated.
Turning to [the mother], the court is satisfied that there is some bond between her and her children as they do enjoy spending time with her. The children, however, have also bonded with the [resource] parents and clearly enjoy the relationship they have developed with [them]. Severing the children's relationship with [the mother] or the [resource] parents would cause the children some harm. The question then is whether terminating [the mother]'s parental rights will do more harm than good to her children. The court concludes that terminating [the mother]'s parental rights will not do more harm than good. J.C. has indicated quite clearly her desire to be adopted by the current resource parents. The court is satisfied that [the mother]'s relationship with the children is not one of primary caregiver; they view her as an adult playmate. It is also satisfied that the children continue to express fear of returning to her care.
. . . .
The resource parents have indicated a willingness to continue contact with [the mother]. Thus, the ties to the biological mother will not be permanently severed. Ongoing contact will be beneficial to both [the mother] and her children, particularly in light of [the mother]'s medical condition.
The court accepts and adopts the position advanced by the Division that the
minor children in this case are fortunate to be together as a sibling group in a resource home that is receptive to their needs. The resource parents have addressed their post-traumatic stress diagnosis and have made an effort to expose the children to their African-American culture. The court is satisfied that the children's behavioral issues as well as their anxiety, nocturnal enuresis and nightmares will likely be alleviated significantly by permanency and stability. The anxiety that the children face on a day-to-day basis is real and ongoing until permanency is achieved. The backlog in this court in scheduling guardianship trials provided [defendants] with additional time to correct the circumstances that led to the children's removal. Unfortunately, that has not occurred.
[(Citations omitted).]
The judge properly concluded that the Division met its burden on this prong as to both defendants. The record is clear that the father had no relationship with his children. The judge did not need a bonding evaluation to tell as much. As for the mother, the bonding evaluations revealed that the children were bonded to her and would suffer some harm upon termination of that bond, however, the children are also bonded to the resource parents and would suffer harm if that relationship was to be severed.
Moreover, the Division's expert psychologist testified that the harm caused by the termination of the mother's parental rights would not be as bad as the harm caused by termination of the children's relationship with the resource parents, which he predicted would be "horrible." We defer to the Family Part's expertise, as we must, and do not disturb the judge's conclusion that termination of the mother's parental rights will not do more harm than good.
III.
As to the remaining arguments raised by defendants, we conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief remarks.
A.
We reject the mother's contention that the judge erroneously shifted the burden of proof to her. The mother emphasizes several areas of the judge's opinion which she argues illustrates this burden shift.
The judge explained at the outset that the guardianship trial spanned eight days and then noted that "[i]t is significant that neither parent testified at the trial." Then, in discussing prong two, the judge wrote, "[the mother], who did not testify at trial, has offered no reunification plan and she was unable to establish that she has a stable home to offer the children." When viewed in context, neither comment was about the mother's failure to testify. The judge merely pointed out that neither defendant testified and that the mother failed to present evidence to rebut the Division's evidence as to prong two.
The judge also wrote, as to prong two, that "[t]he evidence supports a finding that [the mother] has not demonstrated an ability to parent[.]" Again, viewing this excerpt in context of the judge's discussion, it is clear that the judge kept the burden of proof on the Division and concluded that the evidence supported a finding that the mother is unable to safely parent the children.
Similarly, when the judge wrote, "[t]he testimony from [the friend] and [the aunt] fell far short of fulfilling [the mother's] obligation to demonstrate her ability to safely parent her children[,]" it was again in the context of addressing and rejecting the mother's argument that the "court should disregard any argument that her current medical condition (end[-]stage renal failure) interfered with her ability to parent" because the mother "did not present substantive, persuasive evidence of a support system of family and friends who are ready, willing and able to assist her."
Finally, the mother contends that in addressing the third prong, the judge improperly placed an obligation on the mother, the maternal grandmother, the friend, and the aunt to "follow up with the Division" and that their failure to do so was "insufficient[.]" Once again, when viewed in context, the judge was responding to the mother's argument that the Division did not provide adequate services. The Division assessed and rejected the maternal grandparents, the friend, and the aunt as placement candidates, and the mother waited until trial to make this contention.
B.
We also disagree with the father that the judge abused his discretion and denied him due process by denying the bonding evaluation. The judge acknowledged that while a bonding evaluation is "typically required[,]" the father's request for a bonding evaluation was denied because
it's essentially undisputed that [the father] has done nothing. He's essentially done nothing even prior to the filing of the guardianship complaint, but he certainly has done nothing to either attempt to parent or attempt to obtain services, or comply with any of the court orders that were entered.
And since he has done nothing, the [c]ourt finds that he has no right to a bonding evaluation at this late date. . . . [I]n weighing [the father's] claimed right to present his defense with the rights of the children to permanency and to be protected[, the court] sees no basis for . . . allowing a bonding evaluation . . . .
There was no abuse of discretion here. The father "had many opportunities presented to him prior to and subsequent to" the no contact order to take the necessary steps to obtain the bonding evaluation, but failed to show "genuine interest in parenting his children" and waited until the middle of trial to urge the judge to grant him a bonding evaluation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION