Opinion
DOCKET NO. A-3948-12T2 DOCKET NO. A-3949-12T2
03-04-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.W., SR. and J.J., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF L.W., JR., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant L.W., Sr. (Theodore J. Baker, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.J. (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Pavithra Angara, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.W., Jr. (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-10-12.
Joseph E. Krakora, Public Defender, attorney for appellant L.W., Sr. (Theodore J. Baker, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant J.J. (Daniel Brown, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Pavithra Angara, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor L.W., Jr. (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendants J.J. (Johanna) and L.W., Sr. (Leroy), the mother and father of L.W., Jr. (JR), separately appealed from a judgment terminating their parental rights and granting guardianship to the Division of Child Protection and Permanency (Division) to secure four-year-old JR's adoption. The matters were consolidated for the purpose of this opinion. Each parent challenges the sufficiency of the Division's evidence, arguing the proofs were neither clear nor convincing. Rather, Johanna principally maintains she refuted the Division's assertion she was unable to safely parent JR, as she had been living in the same residence six months prior to trial, completed parenting classes, and attended counseling. Leroy asserts the Division "largely ignored" him and never gave him a chance to parent JR. Both parents maintain it would do more harm than good to order termination of their parental rights. We reject these arguments and affirm.
To protect the parties' privacy interests, we have utilized pseudonyms in our opinion.
The law guiding our review is well-established. Parental rights, while constitutionally protected, are not absolute. In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. l998) (citation omitted), vacated on other grounds, 163 N.J. 158, 176 (2000). The government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.
When a child's biological parents resist termination of parental rights, the court's function is to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.
In a guardianship matter, a trial court's examination focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test, codified in N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before termination of parental rights can occur. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:
(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 that 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.
These factors are neither discrete nor separate; rather, they "'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. E.P., 196 N.J. 88, 103 (App. Div. 2008) (quoting K.H.O., supra, 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (internal quotation marks and citations omitted), certif. denied, 190 N.J. 257 (2007).
The Division removed JR from Johanna's care at birth. Since 1991, the Division had been involved with Johanna, who gave birth to her first child at age twelve. None of Johanna's six children remained in her care. Johanna's four other minor children had been removed in 2004, and two remained the subjects of a guardianship action at the time of JR's birth. Because Johanna was not compliant with services ordered with respect to the older children, the Division initiated a hospital hold to prevent JR from being discharged to her care.
The amended verified complaint and Dr. Katz's evaluation dated October 10, 2012, explain the Division received prior to JR's birth, twenty referrals regarding Johanna, alleging "physical abuse and neglect."
The Division identified significant concerns for JR's safety and security, including the parents' unstable housing, failure to engage identified necessary therapeutic services, refusal to inform the Division of their whereabouts and comply with its efforts to assess their housing, Johanna's mental health and anger management concerns, and Leroy's substance abuse. It added JR to the pending litigation and moved to obtain an order for his custody, care and supervision.
Ultimately, the Title Nine action was amended to request guardianship of JR. Trial evidence in this matter was presented over seven non-consecutive days, beginning on October 16, 2012 and concluding on March 4, 2013. The judge rendered a bench opinion on April 4, 2013. The Division offered testimonial evidence from its caseworker, Janice Braxton, who supervised the family's services; and Maria Scalea, JR's transportation aide. Also, the Division presented expert testimony from Barry Katz, Ph.D., who evaluated the parents and provided bonding evaluations. The Division also moved approximately two-hundred documents into evidence. Leroy presented factual testimony from Miguel Montayo, a clinical supervisor for American Habitare and Counseling, a methadone clinic. Defendants submitted documentary evidence and provided expert psychological evidence from Richard S. Klein, Ph.D. Defendants did not testify.
We note the parents suffer from deafness. At all times throughout the court proceedings, during many visitations, and at all recommended services, a sign-language interpreter was present. When interpreters were not available, communication was facilitated in writing using notes, text message, and correspondence.
This court's review of the Family Part judge's factual findings and credibility determinations is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007). See also Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) ("The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." (citations omitted)); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) ("When the credibility of witnesses is an important factor, the trial court's conclusions must be given great weight and must be accepted by the appellate court unless clearly lacking in reasonable support." (citation omitted)). Particular deference is accorded "'[b]ecause of the family courts' special jurisdiction and expertise in family matters,'" N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (quoting Cesare, supra, 154 N.J. at 413), and because the trial judge "has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand[.]" E.P., supra, 196 N.J. at 104. This "'feel of the case' . . . can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293).
Reversal is warranted only when the trial judge's conclusions "went so wide of the mark that a mistake must have been made[,]" M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted), including instances in which the findings were "'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). Consequently, when a reviewing court concludes there is satisfactory evidentiary support for the trial court's findings, "'its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal.'" Beck v. Beck, 86 N.J. 480, 496 (1981) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
However, the trial judge's "interpretation of the law and the legal consequences that flow from established facts" are subject to our de novo review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Challenging the judge's factual findings regarding the first two statutory prongs of N.J.S.A. 30:4C-15.1(a), Johanna argues she and Leroy were not "homeless" because they had obtained housing in June 2012, which they maintained for six months. In his appeal, Leroy also challenges the judge's findings regarding these prongs, noting the Division removed JR without investigating his parenting abilities. He argues, in the prior Title Nine proceeding, Johanna stipulated to a finding of abuse and neglect, but no similar finding was made against him. Therefore, the Division did not prove he caused harm to JR.
"The first two elements of the best interests of the child standard relate to the finding of harm arising out of the parental relationship." In re Guardianship D.M.H., 161 N.J. 365, 378 (1999). These require the dual showings: (1) "[t]he child's safety, health or development have been or will continue to be endangered by the parental relationship"; and (2) "[t]he 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." N.J.S.A. 30:4C-15.1(a)(1), (2). "[T]he second prong more directly focuses on conduct that equates with parental unfitness, [and] the two components of the harm requirement . . . 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.
The harm proven "'must be one that threatens the child's health and will likely have continuing deleterious effects on the child.'" M.M., supra, 189 N.J. at 281 (quoting K.H.O., supra, 161 N.J. at 352). "Rather than focusing on a single or isolated harm, the standard may be triggered by an accumulation of harms over time." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).
In this analysis, "[c]ourts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." D.M.H., supra, 161 N.J. at 383. Further, "[t]he absence of physical abuse or neglect is not conclusive" as "[t]here is no doubt that the mental health of the child and [his or her] best interest psychologically must always be considered." In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1997). See also In re Guardianship of K.L.F., 12 9 N.J. 32, 44 (1992) (holding serious 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"). The failure of a parent to provide a "permanent, safe and stable home" engenders significant harm to a child. D.M.H., supra, 161 N.J. at 383. Such is the case here.
Johanna argues the court erred in concluding she and Leroy were homeless. She asserts they were living in the same apartment for six months, adequately demonstrating their stability. Although Johanna and Leroy were not actually homeless when the trial commenced, their inability to retain stable housing was clearly and convincingly proven. Further, the Division clearly discharged its obligation to assist the parents in obtaining suitable housing, which they could not maintain. See N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 263 n. 9 (App. Div. 2002).
The Division related its numerous attempts to assist Johanna and Leroy in securing housing for a period in excess of two years. Initially, the couple lived with Leroy's mother. Although Johanna later revealed they had moved, she declined to disclose their new address, forcing the Division to mail notices to the prior address. On July 28, 2010, Johanna stated she and Leroy were looking for a new apartment. The caseworker checked and located an apartment within the couple's price range. Later, on November 1, 2010, Johanna and Leroy arrived at the Division again seeking housing assistance. During that week, the Division caseworker identified possible residences and scheduled appointments for defendants, which they did not keep, because they desired to look elsewhere. A January 20, 2011 review hearing order required the Division to provide defendants with funds for an apartment security deposit, once a residence was located.
On March 3, 2011, Johanna and Leroy missed an appointment with their caseworker to continue their housing search. Instead, they appeared the next day unannounced. Nevertheless, a different worker aided them over the next two days, identified available apartments, provided detailed information about each apartment, scheduled appointments for their review, and arranged for their transportation for March 8, 2011.
During an apartment search on March 8, defendants expressed their desire to live in a place costing $1200 per month, which the Division believed they could not afford. On March 10, 2011, Johanna and Leroy appeared at the Division's office explaining they had no place to stay that night, neither friends nor relatives would take them in, and they had run out of money. Documents showed their combined SSI and SSA receipts totaled $1395 per month, which the Division determined was insufficient to cover the cost of the proposed apartment's rent and utilities. The Division declined to release monies for a security deposit to lease that space and provided defendants with a list of the area YWCA and YMCA shelters.
On May 27, 2011, a Division caseworker spent two hours assisting defendants in an apartment search, contacting twelve landlords, and transporting them to several sites. The Division again took the couple to look for apartments on September 6, 2011. Johanna and Leroy continued living transiently until the Division successfully secured an apartment, which they accepted and paid the security deposit for on September 13, 2011. By this time, however, the guardianship action had been filed. Defendants did not pay November's rent and by January 2012, they were evicted and again homeless.
Even after the action commenced, Johanna and Leroy were repeatedly evicted for non-payment of rent from any residence they secured. At trial, the caseworker was questioned regarding the defendants' home, which they had secured on June 21, 2012. Braxton explained she had not assessed the home, because Johanna denied her access. On September 24, 2012, Johanna and Leroy informed Braxton they again faced eviction proceedings.
This evidence refutes the notion advanced by Johanna that the couple had secured residential stability. Rather, the Division clearly and convincingly demonstrated an ongoing pattern of instability and transience, detrimental to a young child's health, stability and security. See D.M.H., supra, 161 N.J. at 381, 394 (holding a parent's inability and unwillingness "to provide a safe and stable home" causing a "delay in permanent placement" would compound harm to the children). Despite the Division's instructions regarding the need to maintain a stable residence, and allocate funds to pay the rent and avoid eviction, Johanna and Leroy continued to ignore these responsibilities.
Johanna next asserts the Division failed to inspect the suitability of their residence as a home for JR. She contends Braxton defied the court's order to assess the apartment. This claim is meritless.
Braxton admitted Johanna provided the address of the apartment leased in June 2012. She also made clear, Johanna refused to allow Braxton into the residence. Absent the need to secure the health or safety of a resident child, the Division has no authority to force its way into someone's home. Although Braxton could have requested an order to complete the inspection, this omission does not change the facts. Johanna knew that JR would not be returned unless defendants' home was approved. She controlled whether her home was assessed by the Division. Her claims that the Division should have forced the issue are unfounded.
Johanna also argues the judge erroneously found she failed to continue counseling services. She points out the mistakes of others delayed her participation and she completed parenting skills classes.
When counseling was ordered Braxton mistakenly delayed making a referral for more than three months, because she believed one was in place. Once the mistake was realized, Johanna was referred to Future Projects in July 2012. Counseling sessions did not begin until October 2012, because the program did not realize Johanna needed an interpreter. Johanna asserts once these glitches were rectified she attended as required. We are not persuaded.
Johanna ignores the many attempts by the Division to provide counseling services needed to achieve reunification made prior to the initiation of the guardianship complaint. Moreover, a review of the record demonstrates Johanna was unwilling to accept responsibility for her actions and address her parental shortcomings.
The record shows Johanna had been working with the Division since 1991. Her four older children were removed and her inconsistent compliance with services prevented any consideration of reunification. Principally relying on this past history, the court ordered JR removed. Johanna initially expressed a willingness to cooperate, but did not do so. Instances documented by the Division's caseworker and Dr. Katz show Johanna "continue[d] to externalize all blame and responsibility to external sources" and take "little to no responsibility for past parenting deficits and other problems." For example, it took from May 25, 2010 to October 11, 2010, before she and Leroy kept an appointment for a court ordered psychological evaluation. Even then, they arrived fifty minutes late, preventing Dr. Katz from completing his tasks. Johanna and Leroy also missed the rescheduled evaluations, finally attending on March 28, 2011.
On August 3, 2010, Johanna was discharged from counseling at Tri-City, because she "ha[d] been a 'no show[,]'" despite being informed of the dates of all sessions and the provision of interpreters. On February 16, 2012, Future Projects informed the Division it was closing its file "due to noncompliance after many failed attempt[s] to reach out to the clients."
The record also included Johanna's messages to the counseling providers to stop calling and leave her alone. It also records innumerable instances of Johanna's failure to meet appointment times, causing the interpreters to leave. While Johanna may have completed parenting skills classes in April 2011, which the trial judge acknowledged, that effort was inconsequential when weighed against the list of services she failed to complete.
We would be remiss if we ignored the other facts identified by the trial judge supporting a finding defendants' conduct caused harm to JR, which they were unwilling or unable to abate. The judge "heavily" relied on Dr. Katz's testimony, which identified Johanna and Leroy's neglectful and dangerous behaviors and their inability or unwillingness to rectify same. As discussed in more detail below, Leroy abused drugs and alcohol. Johanna remained unconcerned and declined to disassociate herself from Leroy until he successfully completed treatment. Braxton testified when she raised this issue with Johanna, she "seemed to just nix it off as . . . the substance abuse issue[s] [are Leroy's] problem. It has nothing to do with her and it's not her concern."
In her brief, Johanna asserts no evidence showed she ever used drugs or engaged in criminal activity, making it safe for JR to be in her care. This position ignores the actual issue. Dr. Katz honed in on the problem with Johanna's approach to caring for JR, stating:
The stability in the environment that [is] provided from a caregiver to a child is ofJohanna's unwillingness to eliminate the relationship to Leroy, who represents a "potentially dangerous" parent posing "a clear threat" to young JR was "an appropriate consideration" in evaluating the second prong of the statutory best interest test. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012). See also K.H.O., supra, 161 N.J. at 348 ("Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development.").
extreme importance. So even if the identified caregiver is the one not abusing drugs but [he or she] continue[s] to reside with a spouse or paramour or significant other who is abusing drugs[] that would produce a situation which would be at high risk for neglect, direct neglect, environmental neglect, and danger to a child.
Johanna's position also selectively ignores findings regarding her ongoing anger management issues, which also contributed to the instability of the home environment. See N.J.S.A. 30:4C-15.1(a). Dr. Katz found Johanna's other children had been removed due to "problems with anger, emotional control, limited coping ability, [and her] lack of understanding of a child's needs emotionally . . . ." He found while the intensity of her anger may have diminished somewhat, it was still an issue, noting she "has shown a pattern of poor modulation of emotion, impulsivity and poor control of emotion to where she reacts to things she does not like in a very knee-jerk reaction that may include outbursts, anger, or threats, or in the past actual violence."
The record reveals Johanna vetted her anger on the case worker, on Leroy, and during visitations. Even during trial — a time one might expect a demonstration of model behavior — on February 5, 2013, Johanna lost control and engaged in loud screaming outbursts.
We find no error in the judge's conclusion the Division's evidence showed Johanna harmed JR by her inability or unwillingness to provide a safe and stable home. Further, she refused to rectify that harm to allow consideration of reunification.
We turn to Leroy's separate arguments of appeal attacking the judge's findings under the first two statutory prongs. Leroy contends he was improperly presumed to be unfit to care for JR, claiming the Division "did not even bother to mention him in [its] findings and conclusions of [the] investigation." Further, he suggests because Johanna stipulated to an act of abuse and neglect, no factfinding hearing was held and the Division offered no evidence showing he harmed JR. These assertions are meritless. R. 2:11-3(e)(1)(E). Leroy's claims of adequate parental fitness are not only undercut by his past history of deficient parenting, but also his longstanding substance abuse.
Leroy has four children from a prior relationship. None of those children were placed in his care even though removed from their mother because she suffered from substance abuse. Further, he made no provision for JR. During the Division's first meeting with Leroy and Johanna in their home after JR was born, they had no crib and the home was devoid of furniture, except for a television. Further, they had no diapers, bottles, formula, baby clothes or other items necessary to provide basic care for an infant. Leroy and Johanna had no appreciation for the need to prepare a place for JR. Their inability to retain an apartment because they would not properly allocate their financial resources to pay rent, also demonstrates a lack of desire to provide for their child.
More important, when considering whether Leroy could care for JR, is his admitted, longstanding substance abuse. When JR was removed, the Division explained their concern for Leroy's substance abuse. Leroy participated in a June 9, 2010 substance abuse evaluation, revealing he started drinking at fifteen, used marijuana, "used cocaine 2-3 times per week from ages 19-25[,]" and experimented with heroin when he was eighteen. Unfortunately, he was not forthright about his current drug abuse. During the litigation he submitted many urine samples positive for various drugs. As late as October 2012, during Dr. Katz's evaluation, Leroy admitted he succumbed to "ongoing chronic heroin addiction." He reported he used heroin as often as five times a week and as recently as the past week.
At trial, Dr. Katz addressed this concern, when discussing Leroy's ability to parent JR:
[Leroy] minimized the problem with the heroin use not viewing that as any problem in parenting on his part. He also described . . . a pattern . . . of using illegal or illegally obtained drugs off the street. Despite his long history of substance abuse and treatment involvement, he claimed ignorance of knowing that buying prescription drugs off the street was illegal.Dr. Katz explained Leroy's "minimization would be an ongoing problem and contraindicative of amenability to substance abuse treatment . . . ."
He's shown a past pattern of being offered services for substance abuse but not benefitting from them. Despite his report of being involved still in substance abuse treatment now, he continues to show a pattern of heroin addiction and alcohol abuse at the very minimum.
The evidence was overwhelming that Leroy demonstrated harm to the safety and security of JR. Despite the Division's efforts, Leroy minimized this issue, clearly and convincingly showing he was unwilling to resolve his drug abuse problem.
JR is now four. He has never lived with his parents who have yet to demonstrate their ability to provide for his care. For almost his entire life, he has been in the care of his resource mother, whom he identifies as his caregiver. We later discuss the expert's opinion of the enduring harm JR would suffer if removed from her care. This too is a harm resulting from Johanna and Leroy's acts and omissions.
"Prong two may also be satisfied if the child will suffer substantially from a lack of . . . permanent placement and from the disruption of [the] bond with foster parents." F.M., supra, 211 N.J. at 451 (internal quotation marks and citation omitted). Also, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." D.M.H., supra, 161 N.J. at 379. Here, the judge correctly found defendants' consistent failure to maintain a stable home, Johanna's rejection of therapy to resolve her anger issues and recognize the harm posed by Leroy's substance abuse, and Leroy's minimization of his addiction, which adversely affects his health, the child's safety, and saps the family's limited financial resources, was supported by the record. We conclude the evidence clearly and convincingly supports the judge's finding under the statute that JR's "health and development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1).
Johanna also argues the Division did not provide reasonable efforts to resolve the parental deficits that caused removal of JR. She again suggests the incorrect finding that she failed to provide suitable and stable housing resulted because the Division did not assess her apartment and thereby "def[ied] the court's explicit order," unequivocally demonstrating the Division failed to provide reasonable efforts. This argument is specious. We rely on our discussion set forth above as well as the additional services and efforts provided by the Division that are identified in the judge's opinion. R. 2:11-3(e)(1)(A).
Finally, Johanna and Leroy each argue the evidence did not support the finding that termination of their parental rights would not do more harm than good. They challenge the judge's reliance on Dr. Katz's opinion and rejection of Dr. Klein's opinion. Leroy also maintains the judge erred in expressing State policy, when she stated: "emphasis has shifted from protracted efforts for reunification with the birth parent to an expeditious, permanent placement to promote the child's well-being." See N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 210 (App. Div.), certif. denied, 192 N.J. 293 (2007). We reject each of these arguments.
Generally, the fourth prong of the best interests standard requires the Division to prove "the child will not suffer greater harm from the termination of ties with [the child's] biological parent than from the permanent disruption of [the child's] relationship with his [or her] resource family." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super., 451, 491 (App. Div. 2012) (citing K.H.O., supra, 161 N.J. at 355). See also N.J.S.A. 30:4C-15.1(a)(2) (citing evidence that separating the child from his or her resource family would cause serious harm). "[T]he child's need for permanency and stability emerges as a central factor" with respect to this prong. K.H.O., supra, 161 N.J. at 357.
The record includes Dr. Katz's observations during the bonding evaluations conducted during the pendency of this matter. He related the development of a strong, consistent emotional bond between JR and his resource mother, while the child did not view Johanna and Leroy as "parental figures[,]" but merely "familiar figures," on whom "he does not rely . . . for emotional support or to meet his needs." During the October 11, 2011, bonding evaluation between JR and defendants, Dr. Katz observed "[JR] displayed no emotional interaction with either parent[,]" had a "blank expression and flat affect throughout the observation[,]" and did cry when Leroy left the room. In contrast, during the resource mother's bonding evaluation, Dr. Katz observed JR was "emotionally expressive" and "animated." Dr. Katz testified to the facts showing the lack of attachment to defendants and JR's strong attachment and bond to the foster mother:
Dr. Katz performed bonding evaluations with defendants on October 11, 2011 and October 10, 2012. He conducted a bonding evaluation with the resource mother on October 13, 2011 and August 29, 2012.
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During that bonding evaluation, [Johanna] did not respond to the emotional needs of the child. The child showed over time that instead of increasing a bond and attachment that the child had withdrawn . . . . [and] was no[] longer emotionally connected to [her]. [Johanna] did not respond with appropriate emotional cues to the child nor did she receive any from the child. [She] was unable to alleviate or respond to any of the child's fears, concerns, or convey a general sense of nurturance to the child.Although Leroy was more interactive with JR, Dr. Katz noted the child's lack of emotional connection with his father: "[I]t was still the interaction as someone who would have a visit with a child who was not related or not involved with them emotionally and not as a caretaker or a parent or anyone else who would have a[n] emotional connection to the child . . . ." Dr. Katz explained the termination of Johanna's and Leroy's parental rights would have no negative effect on JR, but would produce "the positive effect of releasing the child and the caregiver to bond in a[n] even more secure manner without risk of termination of that bond and attachment."
These descriptions stood in stark contrast with Dr. Katz's testimony regarding the resource mother's interaction with JR:
[JR] responded to the foster parent as . . . the primary nurturing figure as well as being a bonded and securely attached caretaker. [He] made eye contact. There was mutual physical contact. The foster parent was able to soothe [JR]. There was an emotional interactivity between them as well as a physical interactivity.
Dr. Katz concluded JR "would suffer ongoing, permanent, and pervasive harm if he were to be removed from his foster mother[.]" He opined JR's permanent separation from the care of his resource mother would cause "catastrophic" results, noting the child would experience depression and ongoing issues with his development, with a lasting effect throughout adulthood. He explained
the reason being is that you have a child who would suffer harm from the removal of a bonded and attached [resource mother] to placement with parents who have significant and enduring parenting deficits includ[ing] . . . lack of responsivity to his emotional needs as well as their own limitations in coping . . . . and a history of abuse. This would produce a situation of high risk for the child of ongoing neglect, emotional abuse, and physical abuse.
In crediting Dr. Katz's testimony, the judge found it consistent with other evidence. She recited the similarity in findings made in prior evaluations and the caseworkers' testimony of their observations during visits.
The judge considered and rejected Dr. Klein's testimony evaluating Johanna's parenting ability, concluding its foundations were flawed, stating Dr. Klein
was [not] aware . . . that [Johanna] lived with [Leroy]. He was [not] aware that [Leroy] has a substance abuse problem. He was [not] aware that [Johanna] was evicted from her home. Dr. Klein was not aware that [Johanna] stopped going to therapy, when she closed out of Tri-Cit[y] for noncompliance. Dr. Klein was not aware that [Johanna] was closed out of in-home therapy.
In her role as factfinder, the judge properly considered the offered expert evidence. She assessed the credibility of the opinions based on the evidence in the record. Matters of credibility are within the unique province of the trial judge, who is free to accept all, some, or none of an expert's opinion. Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993) (citing Cnty. of Middlesex v. Clearwater Village, Inc., 163 N.J. Super. 166, 174 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979)). Further, "expert testimony need not be given greater weight than other evidence nor more weight than it would otherwise deserve in light of common sense and experience." Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001). The judge's conclusions based on the substantial credible evidence in the record will not be disturbed. M.M., supra, 189 N.J. at 278-79.
Finally, we conclude Leroy's challenge to the judge's legal conclusions lacks merit. This state has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357; see also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"):
The emphasis of the Federal Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified as amended in scattered sections of 42 U.S.C.A.), has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being. See N.J.S.A. 30:4C-15. See also [N.J. Div. of Youth & Family Servs v. C.S., 367 N.J. Super. 76, 111 (App. Div.), certif. denied, 180 N.J. 456 (2004)]. "Keeping the child in limbo, hoping for some long term unification plan, would be a misapplication of the law." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001) [, certif. denied, 171 N.J. 44 (2002)].The law requires courts to view the facts through the prism of the child's needs. Here, Johanna and Leroy did not accept the nature and necessity of prioritizing JR's needs above their own. They never achieved an appreciation that it is essential for young children to have stability. Accordingly, JR faces huge risks if placed in their care. JR has found a safe, stable, loving home with his resource family. "[T]he attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613). We find absolutely no reason to alter the order terminating defendants' parenting rights and entering a judgment of guardianship.
[L.J.D., supra, 428 N.J. Super. at 484.]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION