Opinion
DOCKET NO. A-5767-14T3 DOCKET NO. A-5768-14T3
04-13-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.R. and M.C., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF S.R., M.R., and K.R., MINORS.
Joseph E. Krakora, Public Defender, attorney for appellant M.R. (Janet A. Allegro, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Kevin G. Byrnes, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; TaraBeth Lefurge, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale, Gilson and Sapp-Peterson. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-67-15. Joseph E. Krakora, Public Defender, attorney for appellant M.R. (Janet A. Allegro, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Kevin G. Byrnes, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; TaraBeth Lefurge, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
In these separate, but consolidated appeals, defendants M.R. (Mary) and M.C (Michael) appeal from an August 10, 2015 guardianship judgment, entered following a nine-day trial, which terminated their parental rights to two children born out of their relationship, M.R. (Miles), born in 2009, and K.R. (Kathy), born in 2010. From that same judgment, Mary appeals the termination of her parental rights to S.R. (Sidney), born in 2007. The judgment awarded guardianship of the three children to the Division of Child Protection and Permanency (Division).
For ease of reference, we refer to defendants, the children, foster parent, and biological father of S.R. by fictitious names.
Mary is also the biological mother of J.R. (Jason), born in 2006. After the Division effectuated an emergency removal of the children from the home in November 2011, Jason was placed with his biological father, R.S. (Ralph). The court awarded Ralph legal and physical custody of Jason in 2013. Jason is not the subject of this appeal.
Mary and Michael contend that their parental rights should not have been terminated, because the Division failed to prove each of the four statutory prongs contained in N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Mary also argues the court erred in denying her request to continue visitations pending appeal. Michael separately argues that the court erroneously admitted expert opinion evidence. In opposition, the Division and the Office of the Law Guardian, on behalf of the minor respondents, argue that the court did not err in its findings. We affirm.
I.
The guardianship trial consisted of nine days of testimony. The Division produced five witnesses, including Dr. Frank Dyer, Ph.D., who conducted psychological and bonding evaluations. The court qualified Dr. Dyer as an expert in psychology, specifically with respect to parental capacity, fitness, attachment, and bonding. The Division presented testimony from three of its caseworkers who had been involved with the family over the years or who were familiar with the case file: Jenny Sierra, Aura Minor, and Marlene Burgos-Zajac. As part of their testimony, these witnesses relied upon documents contained in the Division's case files. With a few notable exceptions, these documents were admitted without objection. Defendants objected to testimony related to urine screens performed by probation, and hearsay statements embedded in the records. The court overruled the objections. Finally, Mary's treating physician, Dr. Fred Reboredo, testified on behalf of the Division, relative to his treatment of Mary for diabetes. Defendants presented no witnesses, but moved a number of documents into evidence without objection.
We discern the following facts from the testimony of the Division's caseworkers. Prior to initiating the guardianship complaint resulting in the entry of the judgment on appeal, the Division had been involved with Mary, Michael, and the children for quite some time. Beginning in 2007, the Division received more than one dozen referrals related to the family. None of the referrals were substantiated. Nonetheless, the Division maintained an open case file for services, which included in-home support and referrals for substance abuse and domestic violence counseling. Most of the urine screens taken in 2011 from Mary were negative for controlled dangerous substances, but she tested positive for cocaine in August of that year. Mary denied substance abuse, but the Division referred her for outpatient treatment. She reportedly attempted to dilute a subsequent urine sample.
In September 2011, Paterson police reported to the Division, that Mary was arrested after being observed dancing in the street with Sidney, who was four years old at the time, despite police having instructed persons to leave the streets due to a Dominican parade that was in progress. The Division launched its investigation. In interviewing Mary, she denied that she had been dancing in the street, but instead was going to the corner store to get milk and had taken Sidney with her. Michael was also interviewed and denied that Mary had been dancing in the street. Despite the denials, the Division substantiated the claim but took no action to remove any of the children from the home.
Two months later, the Division received another referral that Jason's father, Ralph, and a cousin had taken Jason to St. Joseph's Hospital in Paterson, after Jason alleged that his mother, who had been drinking with two men in her home, reportedly left the home with one of them, leaving the children alone with the other man. Jason stated that the man entered his bedroom, pulled down his pants, and then inserted his finger into his anus. The medical exam revealed no abnormalities. Jason told medical personnel he did not tell his mother about the incident because he feared that he would be hit. Michael, at this time, was in the Dominican Republic.
The Division proceeded to investigate the claim. It interviewed Mary, who stated that Jason told her the incident happened in a dream. Sidney, who was also interviewed about the incident, confirmed that there had been two men in the home drinking beer with his mother, but he did not witness the incident. He also stated that his mother fought with one of the men about what happened to Jason. Because the Division believed both Jason's and Sidney's statements about the incident were consistent, the Division substantiated the allegations against Mary.
The Division implemented a safety protection plan that called for Jason to stay with his father, Ralph, while the other children remained with Mary, but with monitoring from the Emergency Child Aid Program (ECAP). During its monitoring period, ECAP reported positive interactions between Mary and the children and Mary tested negative for all substances, although her levels of creatinine and specific gravity were determined to be outside acceptable limits.
Specific gravity is a comparison of the density of urine with the density of water from which it may be determined the kidney's ability to concentrate urine. Joshua E. Muscat et al., A comparison of creatinine vs. specific gravity to correct for urinary dilution of cotinine, Biomarkers 16(3):206-211 (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3631104/pdf/nihms450818.pdf. (Last visited March 31, 2017)
On November 30, 2011, the Division conducted an emergency removal of the children. Mary appeared for the court hearing, but Michael was still in the Dominican Republic. The court awarded custody of Miles, Kathy, and Sidney to the Division. The Division subsequently placed the children in a foster home with Y.F. (Yoana), where they continued to remain at the time of the guardianship trial in May 2015.
The following month the Division referred Mary to the Challenge program for substance abuse treatment. Mary initially complied with the program's requirements. Her drug screens were negative for more than seven months. She later missed several sessions. Challenge ultimately discharged her from the program.
In addition to her involvement with the Division, Mary, was also being confronted with criminal matters. On January 12, 2012, Mary was admitted to the Pre-Trial Intervention Program (PTI) in connection with a neglect charge stemming from the November 2011 incident involving Jason. The Passaic County Prosecutor subsequently terminated her from PTI and dismissed the charge. In April 2012, Mary was arrested on an assault charge and weapons offense, based upon her reported stabbing of Michael who had returned from the Dominican Republic. Mary was later convicted of unlawful possession of a weapon. The court imposed a four-year probationary sentence in connection with this conviction. She violated her probation and the court resentenced her to probation.
Beginning in August 2012, the court permitted supervised visits between Mary and the children and unsupervised visits between Michael and the children. The reports of those visits indicated positive family dynamics, with no concerns expressed about Mary's ability to provide warm affection to her children or her ability to meet the emotional needs of her children. In addition, during those visits Michael reportedly offered positive support for Mary.
Despite the positive interactions with the children the Division did not recommend that Mary resume unsupervised visitation, after a mental health clinician, in October 2012, opined that Mary had failed to make "sufficient progress to resume unsupervised parenting responsibilities." The clinician provided an update three months later and expressed the opinion that Mary had significant difficulties and that although she had made positive steps, the progress had not been sufficient.
In June and August 2013 and May and August 2014, Mary tested positive for cocaine. She also tested positive for alcohol four times between August and November 2013. She attributed the presence of alcohol in her urine to high sugar levels in her system due to her diabetic condition, but provided no documentation to the Division to support this contention. In addition, she tested positive for glucose in another urine screen taken in August 2013. Further, she tested positive for codeine and morphine in July 2014.
In February 2013, the Division filed its first guardianship complaint. The court, however, dismissed this complaint on May 20, 2014, after concluding the Division failed to satisfy the statutory criteria for terminating Michael's parental rights. The court made no findings as to Mary. The court ordered that Mary and Michael continue to avail themselves of the services arranged by the Division. The court also directed the Division to provide housing information to Michael and to link him to housing services so he could obtain housing separate from Mary.
On June 9, 2014, Mary appeared at W.R. Creative for a domestic violence counseling intake session. She was slated to attend ten sessions. She attended three sessions, cancelled one session, and missed six sessions. During this time period Mary also participated in an outpatient substance abuse program at Straight & Narrow, Inc. Over a three-month period she attended thirteen meetings, missed nine meetings, and submitted six negative urine screens. Mary later completed the Straight & Narrow program in March 2015.
On September 30, 2014, the court approved the Division's plan to terminate Mary's and Michael's parental rights. On that same date, W.R. Creative expressed concerns about Mary's participation in the court-ordered domestic violence program and closed her case due to absenteeism. Michael also participated in W.R. Creative counseling during the latter half of 2014. The program reported that he was punctual in his attendance.
On November 5, 2014, the Division initiated its second guardianship complaint. Three weeks later, the court held an emergent hearing during which it suspended Michael's unsupervised visitations, because of another domestic violence incident involving Mary, which reportedly had occurred earlier in the month. Mary and Michael offered different versions of what prompted the incident. Michael commenced his supervised visits with the children in December. Also in early December, Michael tested positive for cocaine and opiates. He denied using drugs, but the Division referred him for a substance abuse assessment. He subsequently admitted to using Percocet in the past.
In his testimony, Dr. Dyer opined that Mary did not possess adequate parenting capacity and emphasized her pattern of evasiveness. He found Michael to be more stable and emotionally controlled than Mary, but testified that Michael had yet to achieve "the degree of progress and independence [from Mary] that would allow" for "a safe and stable and rewarding environment" for the children. He pointed to Michael's substance abuse as an example of Michael's lack of parental capacity.
In Dr. Dyer's expert opinion, Mary and Michael could not co-parent together. He opined that any such arrangement would have "a terrible adverse impact on the children." He found that all three children had bonded with Yoana and that whatever harm the children would experience if their parent's parental rights were terminated, would not be "either serious or long lasting."
Dr. Reboredo, in his testimony, confirmed that Mary suffers from diabetes. The Division presented the doctor with test results from a urine sample taken from Mary in September 2014, which revealed the presence of alcohol. He did not know the amount of glucose in the particular urine screen, which he acknowledged could impact his ultimate opinion. Nonetheless, based upon what he did know about Mary's diabetic condition, he opined that in order to achieve the positive alcohol test reported in the urine screen taken, she would have had to ingest "probably a whole sack of sugar."
On August 10, 2015, the trial court issued an oral decision in which it determined that termination of Mary's and Michael's parental rights was in the best interests of the children. The court found that the Division proved, by clear and convincing evidence, the four statutory prongs governing termination of their parental rights, pursuant to N.J.S.A. 30:4C-15.1(a). The court credited the testimony of the Division's witnesses, highlighted the Division's efforts towards reunification, and addressed defendants' specific actions and inactions, namely, "ongoing, unresolved substance abuse, repeated domestic violence, lack of stable housing, parental incapacity, and psychological unfitness," which it concluded were inconsistent with reunification. The court opined that the secure bond the children had formed with Yoana and their progress over the preceding several years with Yoana "would be for naught," if "those bonds were broken" and the children were returned to their biological parents. The court characterized that harm as far greater than any harm that may result from termination of Mary's and Michael's parental rights.
Addressing the specific prongs, the court found that under the first prong the children's safety would be endangered by a continued parent/child relationship with their parents. The court was satisfied that based upon the reported incidents occurring in September and November 2011, the Division acted appropriately in implementing a safety plan for the children and Mary's and Michael's actions thereafter endangered the children. Specifically, the court found that Mary did not consistently comply with the safety plan or complete court-ordered services. Likewise, the court concluded that Michael was equally non-compliant because he failed to end his relationship with Mary, but instead enabled Mary's endangerment of the children's welfare by leaving her responsible for getting the children back.
Next, the court found that both Mary and Michael were unable and unwilling to eliminate the harm facing the three children caused by their conduct. The court pointed to Mary's non-compliance with court ordered services, violation of the conditions of her probation, and continued her drug use. As for Michael, the court focused upon his continued substance abuse, his failure to consistently take advantage of his unsupervised visitation opportunities, and his poor judgment, evidenced by his decision to remain in an abusive relationship with Mary, which the court characterized as placing more emphasis upon his relationship with her than his relationship with his children, and her continued drug use. The court also noted that the children's caregiver, Yoana, was competent and had expressed her desire to adopt the children.
Next, addressing the third prong, the court determined that the Division had made reasonable efforts to assist Mary and Michael in correcting the conditions that led to the children's removal from the home. The court found that the Division had provided both parents with numerous services, including counseling, substance abuse programs, and visitation opportunities, but that neither parent took consistent advantage of these services. The court was convinced there were no alternatives to termination.
With regard to the fourth prong, the court determined that terminating Mary's and Michael's parental rights would not do more harm than good. The court reasoned the record disclosed that both parents, for the most part, had been absent from the children's lives for more than three years, and had failed to ameliorate the many issues that continued to plague them. Furthermore, the court, according considerable weight to Dr. Dyer's findings, concluded the children had formed secure bonds with Yoana, which would cause harm if broken.
Following its decision, Mary moved for continued visitation with the children. The court denied the application. The present appeals ensued.
Mary raises the following arguments on appeal.
I. THE TRIAL COURT ERRED IN FINDING THAT THE FOUR PRONGS OF THE "BEST INTERESTS" TEST WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE.
A. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE FINDING THAT THE HEALTH AND DEVELOPMENT OF THE CHILDREN WAS AND CONTINUED TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
1. THE FINDING THAT [MARY] PUT [SIDNEY] IN DANGER BY STANDING IN A BUSY STREET WAS NOT SUFFICIENT TO ESTABLISH "HARM" AS CONTEMPLATED UNDER THE FIRST PRONG BECAUSE IT WAS GROUNDED SOLELY ON EVIDENCE THAT THE COURT HAD PREVIOUSLY RULED INADMISSIBLE FOR THE PURPOSE.
2. THE COURT'S FINDING THAT [JASON] WAS SEXUALLY ABUSED BY [MARY]'S FRIEND AND, THEREFORE, SUPPORTING THE "HARM" REQUIREMENT OF PRONG ONE, WAS NOT SUPPORTED BY COMPETENT EVIDENCE AND [JASON]'S HEARSAY STATEMENT LACKED THAT REQUIRED CORROBORATION.
B. [MARY] IS WILLING AND ABLE TO ELIMINATE THE HARM FACING HER CHILDREN AS CONTEMPLATED BY THE SECOND PRONG.
1. [MARY] HAS ADDRESSED ALL NECESSARY STEPS REGARDING SUBSTANCE ABUSE ISSUES TO
ESTABLISH SHE IS ABLE TO SAFELY CARE FOR THE CHILDREN.
2. THE COURT ERRED IN FINDING [MARY] DID NOT TAKE APPROPRIATE STEPS TO PROTECT THE CHILDREN FROM DOMESTIC VIOLENCE.
3. DR. DYER'S OPINION THAT [MARY] HAS SHOWN MINIMAL IMPROVEMENT IN HER ABILITY TO PARENT IS NOT BASED ON CREDIBLE, RELIABLE EVIDENCE.
C. THERE DID NOT EXIST CLEAR AND CONVINCING EVIDENCE THAT THE DIVISION MADE REASONABLE EFFORTS TO PROVIDE APPROPRIATE THERAPEUTIC SERVICES TO HELP [MARY] CORRECT THE CIRCUMSTANCES WHICH LED TO HER CHILDREN'S PLACEMENT OUTSIDE THE HOME UNDER THE THIRD PRONG.
1. THE DIVISION FAILED TO PREVENT THE FOSTER MOTHER FROM ALIENATING THE CHILDREN FROM [MARY].
2. THE DIVISION FAILED TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
D. [THE DIVISION] DID NOT PREVAIL ON PRONG FOUR OF N.J.S.A. 30:4C-15.1(a) BECAUSE IT DID NOT PROVE BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT CAUSE MORE THAN GOOD.
II. THE TRIAL COURT ERRED IN DENYING [MARY] VISITATION WITH HER CHILDREN PENDING THE APPEAL.
Michael raises the following arguments on appeal:
I. THE TRIAL COURT'S RULING SHOULD BE REVERSED BECAUSE THE DIVISION FAILED TO PROVE ALL THE STATUTORY ELEMENTS JUSTIFYING TERMINATION OF PARENTAL RIGHTS.
A. THE FATHER NEVER CAUSED HIS CHILDREN MORE HARM.
B. THE DIVISION FAILED TO PROVE THAT THE FATHER IS UNABLE OR UNWILLING TO ELIMINATE THE HARM.
C. THE DIVISION FAILED TO PROVE THAT IT HAS MADE REASONABLE EFFORTS TO PROVIDE SERVICES TO FURTHER THE GOAL OF REUNIFICATION.
D. THE DIVISION FAILED TO PROVE THAT NO MORE HARM THEN (sic) GOOD WILL RESULT FROM THE TERMINATION OF PARENTAL RIGHTS.
II. THE TRIAL COURT IMPROPERLY ADMITTED EXPERT OPINION EVIDENCE. (Not Raised Below)
II.
A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). However, this constitutional right is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citation omitted). Rather, it is tempered by the State's responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Id. at 347-48. This statute provides that the Division shall petition the court for termination of parental rights if the following four standards are met, by clear and convincing evidence:
(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 criteria are not mutually exclusive, but instead overlap "to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. A court's application of the best-interests standard is a fact-sensitive undertaking, which must rely on particularized evidence addressing the circumstances unique to each case. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005).
A court's conclusion as to whether termination is in a child's best interests will be accorded deference on appeal so long as the court's findings are supported by substantial, credible evidence in the record. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Such deference is particularly appropriate given the family court's expertise in domestic affairs, Cesare v. Cesare, 154 N.J. 394, 412-13 (1998), and its opportunity to observe witness testimony first-hand to evaluate credibility. N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007).
The first prong of the best interests test requires that the Division demonstrate harm to the child. K.H.O., supra, 161 N.J. at 348, 352. Although a single harm may suffice, the focus is on the cumulative effect of harm the parent causes over time. Id. at 348.
Here, Mary's chief argument relative to establishing the harm element under the first prong is that the court relied upon incompetent evidence, including the police report, which was never admitted into evidence, concerning the September 2011 incident, and Jason's uncorroborated statement in connection with the November 2011 incident. We agree the trial court erred in its evidentiary treatment of those referrals.
During the direct examination of the Division's witness, Jenny Sierra, the court, based upon defense counsel's hearsay objections, ruled that it would permit the testimony regarding the September incident to be considered for the sole purpose of establishing why the Division provided services. In its findings, however, the court clearly considered the September incident substantively. The court acknowledged that Mary challenged the "veracity of the police referral," but then implicitly gave substantive weight to its veracity when it stated in its oral decision that Mary "ultimately entered pretrial intervention . . . based on her charges of child endangerment." The court further stated:
In this court's opinion, these children were endangered by the parental relationship. [Mary] danced in traffic with her four[-]year[-]old child in her arms, late at night on September 18, 2011, and later attempted to justify her actions by claiming she was going out to buy milk.Having initially ruled that the referral would not be considered substantively, but only to explain the reason the Division responded to the family on that occasion, the court nonetheless considered the allegation substantively. The police report was hearsay embedded within the summary and not otherwise admissible pursuant to Rule 5:12-4(d), which permits substantive consideration of reports by staff personnel or professional consultants, as prima facie evidence subject to rebuttal. N.J. Div. of Child Prot. & Permanency v. J.D., 447 N.J. Super. 337, 347 (App. Div. 2016) (citing N.J. Div. of Child Prot. & Permanency v. R.W., 438 N.J. Super. 462, 466-67 (App. Div. 2014)). The police report is not encompassed under Rule 5:12-4(d) and was not otherwise admissible as a business record under N.J.R.E. 803(c)(6). Likewise, Mary's admission into PTI should not have been given any evidentiary weight by the court. She entered the program without a plea or any admission of guilt. She was later terminated from the program and the underlying accusation referenced by the court in its decision was dismissed.
She was arrested and charged, and charged with child endangerment under [Title 9] and the police referred the matter to the Division.
Under Rule 5:12-4(d), reports by staff personnel or professional consultants are considered as prima evidence of the facts stated therein, but subject to rebuttal. The police officer was not a staff member of the Division or a professional consultant. --------
With regard to the November incident, the court, over defense counsel's objection, accepted the argument advanced by the Division that there was corroboration of the assault from Shelly, as well as substantiated sexual abuse because there was also "a Fact-Finding Order that this was . . . inappropriate conduct on the part of the mother, so it certainly comes in." Thus, in its decision the court considered the allegation related to the November incident, substantively, as evidence that the harm to Jason had been substantiated.
The record, however, reveals that Sidney did not corroborate a sexual assault committed upon Jason. He told the Division that his mother, in explaining why Jason was not home, told him that someone had put a stick in Jason's bottom and that he was not to tell anyone about what happened to Jason. Thus, the trial court erred when it accepted the Division's argument that Sidney had corroborated the sexual assault. The trial court additionally erred when it considered the fact-finding order as corroboration that the allegation regarding Jason had been substantiated. This evidentiary ruling was contrary to the holding in New Jersey Division of Youth & Family Services v. R.D., 207 N.J. 88, 120-21 (2011), where the Court held that findings in an abuse or neglect proceeding may not be given preclusive effect in a subsequent guardianship proceeding unless: (1) the parties have been given advance notice that the court intends to apply the clear and convincing standard applicable to termination proceedings to an abuse or neglect fact-finding hearing, and (2) if that standard is satisfied, the court would give its findings collateral effect in a subsequent guardianship proceeding. Here, no such notice was given to Mary in the abuse or neglect proceeding. Moreover, as the March 27, 2012 fact-finding order states, the court's determination utilized the preponderance of the evidence standard.
Notwithstanding these evidentiary errors, other findings by the trial court established clear and convincing evidence of harm to the children occasioned by defendants' actions and inactions. Without regard to whether the September and November incidents occurred as alleged, as the trial court noted, in response to the referrals, the Division provided services to Mary and to Michael. Both failed to satisfactorily avail themselves of these services by, among other failures, continuing their substance abuse and continuing to maintain a volatile relationship with each other, necessitating two domestic violence orders and culminating in a stabbing incident for which Mary pled guilty.
In addition, although Michael was not present at the time of the alleged November incident, as the trial court determined, he separately harmed his children by continuing his relationship with Mary, and failing to independently secure housing or complete offered services. The trial court found these failures delayed reunification with the children, who had formed new attachments in their lives.
In short, the evidentiary rulings for which the trial court erred were not so egregious to warrant reversal. Given the additional factual findings by the trial court, we conclude that the errors made were not so wide of the mark that the trial court mistakenly concluded the Division satisfied the first prong of the best interests test with clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Rather, the cumulative impact of Mary's and Michael's actions and inactions over time established the requisite harm under the first prong. K.H.O., supra, 161 N.J. at 348 (observing that "[a]lthough a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child[ren] relationship over time on the child[ren]'s health and development").
We are equally satisfied the trial court correctly concluded there was clear and convincing evidence the Division satisfied the second prong of the best interests analysis. The second prong addresses the parent's unwillingness and inability to eliminate the circumstances causing harm to the child. N.J.S.A. 30:4C-15.1(a)(2). This prong reinforces the first prong concerning harm to the child and looks to a parent's ability and desire to overcome the obstacles that prevent him or her from providing the child with a safe and stable environment. K.H.O., supra, 161 N.J. at 348-49, 352. The focus of this prong is not the fitness of the biological parent, but whether he or she can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). In other words, the question a trial court must resolve under this prong is "whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986).
The second prong may be satisfied by parental dereliction and irresponsibility, including drug abuse and the inability to provide a stable home. K.H.O., supra, 161 N.J. at 353. The Division is required to show "that the child will suffer substantially from a lack of stability and a permanent placement and from the disruption of [his or] her bond with foster parents." R.G., supra, 217 N.J. at 556 (alteration in original) (quoting K.H.O., supra, 161 N.J. at 363).
Mary's contention that she is willing and able to eliminate any harm facing the children is belied by the evidence in the record upon which the trial court relied in its findings. Mary was non-compliant with court-ordered services, in particular, domestic violence and parenting counseling. She had intermittent success with drug treatment referrals until three and one-half years after the children had been removed from her care and custody. While she is correct that positive drug screens alone do not constitute sufficient evidence to find that she had a drug problem and posed a risk to the children, the court did not rely solely upon the drug reports. Rather, the court relied upon a multitude of factors, including drug screens, failed counseling programs, and probation violations that showed Mary's general unwillingness to change.
Likewise, Michael's contention that the Division failed to satisfy the second prong by the requisite standard is also contrary to the evidence. His failure to discontinue his volatile relationship with Mary, failure to take advantage of his unsupervised visitation opportunities with his children, failure to secure stable housing for himself and the children, and his continued substance abuse, were all factors the court identified as indicative of Michael's lack of judgment and ultimate unwillingness or inability to provide a safe and stable environment for himself and his children.
Under the third prong, the Division must demonstrate it made reasonable efforts to provide the parents with appropriate services, and the court must consider viable alternatives to termination. M.M., supra, 189 N.J. at 281, 285. Such efforts should be directed toward reunification of the family, as appropriate, K.H.O., supra, 161 N.J. at 354, and be intended to aid the parent in correcting those circumstances that occasioned the children's removal in the first place. In re Guardianship of D.M.H., 161 N.J. 365, 386-87 (1999). The reasonableness of the Division's efforts depends on the circumstances of each case rather than on the success or failure of those efforts. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007).
Reasonable efforts may include parental consultation, plans for reunification, services essential to achieving reunification, advising parents of the child's progress, and facilitating visitation. N.J.S.A. 30:4C-15.1(c). These efforts depend upon the facts and circumstances of each case. In K.H.O., for example, the Division made reasonable efforts by attempting to place the child with relatives or friends, facilitating parental visits, and referring the parent for appropriate services and treatment programs. K.H.O., supra, 161 N.J. at 354.
In its decision, the trial court found the Division had taken all reasonable efforts to assist Mary and Michael in reuniting them with their children, but both failed to take full advantage of the services offered. For example, Mary had the opportunity to receive substance abuse and domestic violence counseling at several different outpatient and inpatient facilities but failed to complete the programs. Similarly, the Division presented Michael with counseling opportunities, which he did not complete. It also provided him with housing listings and information about Section 8 housing, but he failed to follow up.
Under the third prong, the Division is also required to consider alternatives to termination, such as continued foster care, or placement with relatives. See A.W., supra, 103 N.J. at 608-09. Mary argues the Division failed to consider alternatives and Michael contends the Division failed to properly investigate his mother as an appropriate alternative. We disagree.
Although relatives are preferred, "[t]he reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). To be sure, "the Division has a statutory duty to evaluate relatives as potential caretakers, [but] there is no presumption favoring the placement of a child with such relatives." Id. at 82.
Here, the Division reviewed Michael's mother as a candidate. Although she initially expressed an intention to move to New Jersey, she later advised the Division that she wanted to remain in Florida. The interstate investigation of her home disclosed that it was not large enough to accommodate the three children. Moreover, the Division accepted the recommendation from Dr. Dyer that it would be detrimental to take the children from where they had been for the last several years and move them to another state to live with someone whom they had never met or recognized as a grandmother. Mary's sisters were also considered as relative placements and ruled out. One sister advised the Division that she believed a change in placement would do more harm than good, while the other sister's living situation was not large enough to accommodate the three children.
The trial court credited the testimony regarding the Division's efforts to place the children with relatives and determined the Division properly ruled out these relatives. Ultimately, the trial court concluded that continued placement with Yoana was the best option for the children. We are satisfied the record clearly and convincingly supports these findings.
Turning to the fourth prong, it "requires a determination that termination of parental rights will not do more harm than good to the child[ren]." K.H.O., supra, 161 N.J. at 354-55. The inquiry is "not whether a [birth] mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with the parent[s]." R.G., supra, 217 N.J. at 559 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008)). Of course, "a child's need for permanency is an extremely important consideration pursuant to this prong." Ibid. (citing M.M., supra, 189 N.J. at 281). "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong, that evidence will satisfy" the fourth prong. K.H.O., supra, 161 N.J. at 363. The Division may prove this prong by offering "'testimony of a well[-]qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship' with the natural parents and foster parents." R.G., supra, 217 N.J. at 559 (quoting J.C., supra, 129 N.J. at 19).
Mary and Michael argue that the Division failed to prove by clear and convincing evidence that termination of parental rights would not cause more harm than good. Michael specifically urges that the trial court's finding regarding this fourth prong was "heavily based on the extremely flawed bonding assessments conducted by Dr. Dyer."
In its findings the trial court cited the overall history of the Division's involvement with Mary, Michael, and the children and, in particular, the secure bonds the children had formed with Yoana, their caregiver, while they were in her custody for almost four years. It additionally credited Dr. Dyer's expert opinion concluding that Mary and Michael were not capable of safely parenting the children and there would be significant and enduring harm to the children if they were removed from Yoana, who expressed her desire to adopt the children. The trial court concluded that under the factual circumstances demonstrated by the Division's proofs, permanency for the children with Yoana was demanded. We are satisfied the record contains clear and convincing evidence to support this finding. We discern no basis to disturb the court's findings in this regard.
Finally, Mary asserts the trial court erred in denying her visitation rights pending her exhaustion of her appeal rights. We find no merit to this contention and conclude her reliance upon In re D.C., 203 N.J. 545 (2010), is misplaced.
In re D.C. addressed visitations between siblings, not with parents. Id. at 562-63. We find J.C., supra, 129 N.J. 1, dispositive. There, the Court found that "[t]ermination [under Title 30] permanently cuts off the relationship between children and their biological parents." Id. at 10. "The potential harm in cutting off access to a biological parent is an inherent feature of termination, necessary to achieve the greater good of securing for the child a permanent home." N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 595 (App. Div. 1996) (citing J.C., supra, 129 N.J. at 26).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION