Opinion
DOCKET NO. A-4994-13T1 DOCKET NO. A-4995-13T1
06-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.B. and T.A., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF M.A., T.J., and M.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Howard Danzig, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant T.A. (Janet A. Allegro, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple.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, Passaic County, Docket No. FG-16-29-14. Joseph E. Krakora, Public Defender, attorney for appellant R.B. (Howard Danzig, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant T.A. (Janet A. Allegro, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Noel C. Devlin, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals defendants T.A. ("Tammy") and R.B. ("Robert") appeal the judgment of guardianship entered by the Family Part terminating Tammy's parental rights to M.B. ("Mary"), T.J. ("Tim"), and M.A. ("Michael") (collectively, the "children") and terminating Robert's parental rights to Michael. We affirm.
Pseudonyms are used to protect the identities of the parties and for ease of reference.
Tim's biological father, D.J., executed a surrender of his parental rights on May 7, 2014. Mary's biological father, J.B., has not appealed the termination of his parental rights.
I.
We discern the following facts from the record. The Division of Child Protection and Permanency (the "Division") first became involved with the family on August 17, 2006, when it received a referral alleging that Tammy was not feeding then one-year-old Mary enough food and was not properly supervising her. The Division later received three additional referrals regarding Tammy between August 2006 and April 2009. These referrals were determined by the Division to be unsubstantiated.
On April 27, 2009, the Division received a referral from St. Joseph's Hospital, reporting that Tammy had given birth to Michael and that, at the time of delivery, she tested positive for marijuana. The Division investigated, and Tammy denied smoking marijuana while pregnant but reported she spent time around friends who were smoking. At that time, Tammy named J.B. as Michael's father.
The Division created a case plan for Tammy and her children which included substance abuse evaluations and treatment, but Tammy was noncompliant. Emergency Child Abuse Program ("ECAP") workers expressed concern that in June 2009 Tammy was two months behind on her rent and faced eviction. She also failed to pay her electric bill and had her power shut off. The Division paid Public Service Electric and Gas Company $500 to turn her electricity back on.
In November 2009, an ECAP worker noted that Tammy's home was in "deplorable" condition - the ceiling was cracking, the toilet was backed up, and the entire home smelled of sewage. The Division helped Tammy and the children obtain temporary housing. Thereafter, the Division filed a verified complaint for care and supervision of the three children due to Tammy's unresolved substance abuse issues, difficulty maintaining housing and utilities, and her failure to comply with Division recommendations.
Tammy continued to be noncompliant with substance abuse treatment. She was also referred for a psychological evaluation, but failed to attend two scheduled evaluations before completing one with Dr. Robert Kanen in June 2010.
In July 2010, ECAP and the Division discovered that Tammy was sanctioned from receiving her welfare benefits as a result of her noncompliance with substance abuse treatment and did not have enough food in her home for the children. Despite the Division's attempts to direct her to local food pantries, Tammy did not provide food for her children. As a result, the Division executed an emergency removal, obtained custody of the children, made placement arrangements, and substantiated Tammy for neglect.
The court ordered Tammy to complete a substance abuse evaluation and to comply with all recommendations, including those resulting from a psychiatric evaluation. The court also ordered her to attend individual therapy, complete parenting skills training, resolve her welfare sanctions, and comply with welfare requirements in order to maintain safe and stable housing.
The Division continued to provide Tammy with numerous services including substance abuse evaluations and treatment, parenting classes, individual and domestic violence counseling, and supervised visitation with the children. Although she participated in services initially, she soon became noncompliant with treatment, and missed or only partially attended and participated in classes, appointments, and visitations.
In March 2011, paternity testing confirmed that J.B. was not Michael's father. Tammy named Robert as the father, and further testing confirmed paternity.
In summer 2011, Tammy had unstable housing. Despite Division efforts to assist her, she failed to take advantage of free transportation and appointments, preferring to live at the homes of family and friends. Throughout 2011, Tammy was discharged from referred programs because she refused services and failed to attend treatment. However, Tammy did eventually complete the counseling and parenting classes as well as substance abuse treatment by summer 2012.
Robert met three-year-old Michael for the first time at a supervised visit on August 2, 2012. At another visit in early August 2012, Tammy arrived an hour and a half late and discussed with the children domestic violence incidents that had occurred between her and Robert. A Division worker asked Tammy to not discuss such incidents in front of the children. Tammy proceeded to tell the children that they should look at Robert's swollen lip.
In late August 2012, Tammy requested that Robert not be permitted to attend her visits with the children because he was drinking and acting violently. A Division worker arranged for Tammy and Robert to have separate visits with Michael. Thereafter, the Division filed a complaint for guardianship.
Despite Tammy's earlier request to visit separately, in late September 2012, she and Robert chose to attend a visit together. A Division worker asked Tammy about her change of mind, and Tammy reported Robert had attempted to choke her only when he was drunk, but she did not consider him violent.
At a permanency hearing on September 19, 2012, the Division's plan for guardianship was rejected because Tammy had complied with some services, and the court remanded with instructions that the Division assist her in obtaining stable housing. The Division continued to provide Tammy with a host of services including family therapy. The court terminated the guardianship litigation and reinstated the custody, care, and supervision litigation.
The Division referred Tammy for psychological evaluations with Dr. Kanen. Tammy was also referred for a psychiatric evaluation with Dr. Samiris Sostre, which she completed.
The Division also referred Robert for a psychological evaluation, which he completed at Southern State Correctional Facility while incarcerated for distribution of a controlled dangerous substance. In addition, he was referred for a substance abuse evaluation. After his release, he failed to appear for scheduled appointments and to complete the evaluation proceedings.
In October 2012, Tammy was referred to the Division's Domestic Violence Liaison after she reported that Robert had choked her. She was referred again in January 2013 after admitting that the police had been called following an incident between herself and J.B. in late 2012. However, she refused the services provided by the Passaic County Women's Shelter.
Supervised visitations continued and in February 2013, Tammy was granted four hours of unsupervised visitation with the children each week. The court ordered that J.B. could not be present during unsupervised visitations.
That same month, Mary was suspended from school for hitting other children and exposing herself to two boys. When asked where she learned to behave like that, she said "at mommy's home." In March 2013, Mary began wetting her bed, stealing money from her foster family, and having nightmares. Mary was hospitalized in April 2013 after reporting that she wanted to kill herself.
Tammy's unsupervised visits were increased to nine hours a week. In June 2013, she began unsupervised weekend visits with the children. She was then granted an entire week of unsupervised visits with the children while their foster family went on vacation.
However, on July 30, 2013, the Division received two referrals involving Tammy and J.B., alleging that, during the week of unsupervised contact, Tammy hit Tim and Michael with a belt and J.B. was at the home despite the prior court order prohibiting his unsupervised contact with the children. The referrals also alleged that J.B. punched Mary in the chest. After receiving the referrals, Division workers went to Tammy's residence to investigate. When they arrived, J.B. was arguing with Tammy inside. The workers interviewed Tammy, who admitted that J.B. had been in the home that week, but claimed that he had only been there briefly to deliver an air conditioner. She denied that she or J.B. hit the children, but said she "plucked" them and had threatened to hit Tim with a belt because he threw a blanket on the floor.
The workers interviewed the children. Michael and Tim reported that J.B. had spent the night "a lot of times" during the week and said that he "played" with Tammy when they were going to sleep. They also said that while Tammy was in the room with them, J.B. played games that involved hitting them with a closed hand on their chests. The boys said that Tammy hit them with a belt and that she hit J.B.
Mary similarly reported that J.B. played a "body shots" game with them, and that he had hit her in the chest, causing chest pain and tingling in her arms. She was taken to St. Joseph's Hospital where she was diagnosed with costochondritis, an inflammation of the cartilage attaching the ribs to the breastbone. Mary also said that Tammy hit Michael and Tim with a belt and an open hand, and that the reason she hit Tim with a belt was because he threw a blanket.
The workers interviewed J.B. last. He initially denied hitting the children, but later said that he played "body shots" with the boys using an open hand. As a result, the court suspended Tammy's unsupervised visits.
After the suspension, Tammy was missing for three weeks and did not attend visits with the children. Robert sporadically attended visits with Michael in early 2013. From April through July 2013, Robert was incarcerated for a violation of probation.
On August 21, 2013, Tammy requested to speak with a caseworker in a Division vehicle because she was uncomfortable speaking in front of J.B., who was in her home. She reported that she wanted to go to a shelter because J.B. would not leave her alone and would not let her go outside. She also said that J.B. had come to her home one evening saying that he had been shot. Because Tammy said she wanted to leave J.B., the Division worker asked her to come to the Division office to speak with the Domestic Violence Liaison, but Tammy did not go.
In October 2013, the court accepted the Division's plan of termination of parental rights followed by adoption because Tammy had failed to secure housing and separate from J.B. The Division continued providing Tammy with individual and family counseling, drug screens, substance abuse counseling, psychological and psychiatric evaluations, medication monitoring, and referrals to transitional housing services for domestic violence victims. However, Tammy had difficulty interacting with other women at the housing program and was placed on a behavior contract. Tammy violated the contract and was discharged in February 2014. She remained unable to find a permanent home or income.
Drs. Kanen, Sostre, and Rachel Jewelewicz-Nelson completed psychological and psychiatric evaluations of Tammy and Robert, as well as bonding evaluations between the children and Tammy, Michael and Robert, and the children and their foster parents.
On May 28, 2014, following four days of trial held earlier that month, the Family Part judge issued an oral decision, finding that the Division had proved all four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. The court found the Division's witnesses and the Law Guardian's expert to be credible.
The court entered an order terminating Tammy's parental rights to the children and Robert's parental rights to Michael. 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.
We recently granted the Law Guardian's motion to supplement the record with a copy of an April 10, 2015 order entered by the Family Part directing the Division to explore kinship legal guardianship ("KLG") as an option in lieu of adoption for Michael. We note that the Law Guardian is not currently seeking a different result, and that the Family Part could later, on motion pursuant to Rule 4:50-1, vacate the termination of parental rights as to Michael and permit KLG.
II.
A parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). However, "[p]arental rights . . . are not absolute [and] . . . [t]he constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Under N.J.S.A. 30:4C-15.1a, the Division can initiate a petition to terminate parental rights on the grounds of the "best interests of the child" if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"The four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348.
(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.
When biological parents resist the termination of their parental rights, the court's function is to decide whether the parents can raise their children without causing them further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). "The burden falls on the State to demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child." Ibid.
"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotation marks and citation omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).
A.
To satisfy the first prong of the best interests standard, the harm shown by the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Generally, the proofs "'focus on past abuse and neglect and on the likelihood of it continuing.'" N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting J.C., supra, 129 N.J. at 10), certif. denied, 192 N.J. 68 (2007).
We are satisfied the record here contains ample evidence to support the court's determination that both defendants' behavior exposed the children to harm pursuant to the first prong. Tammy's "inability . . . to provide day-to-day nurturing for [her] child[ren] for a prolonged period of time is a harm" that satisfies the first prong. K.H.O., supra, 161 N.J. at 356. Additionally, her failure to establish a permanent, safe, and stable home for a child presents a risk of significant harm sufficient to meet the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
Tammy further undermined her ability to provide a permanent home by continuing her drug use and consequently losing her welfare benefits. Additionally, her continued relationship with J.B. posed an obvious risk of harm to the children, as evidenced by J.B.'s punching of Mary's chest. Tammy's dangerous relationship with J.B. was an appropriate consideration by the court because it "pose[d] a clear threat to the child[ren]." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012). We "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.
We also see no error in the court's determination that there was sufficient evidence of harm by Robert as to Michael under prong one. The court properly found that Robert had not, at any time, made himself available as a placement or resource for Michael, had failed to complete substance abuse assessments, and was inconsistent with visitation.
B.
The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.
We are satisfied that the record contains clear and convincing evidence to establish prong two. Despite Tammy's assertion that she could become fit, expert testimony established that her parental deficits were getting more severe over time. Additionally, the record reveals that her compliance with evaluations and treatment was sporadic, and she did not remain committed to improvement. Expert testimony established that her disorders were so entrenched as to be unlikely to improve even with years of therapy. Moreover, it is clear that she "is unable to provide a safe and stable home . . . and that the delay in securing permanency continues or adds to the child[ren]'s harm." Ibid.
We also conclude that the trial court correctly determined that Robert had never developed a parenting plan for Michael other than to support his return to Tammy. The court properly relied on expert testimony that Robert would have difficulty supporting himself and Michael, was incapable of providing a safe and secure home, and had no bond with Michael. While Robert takes issue with the expert testimony regarding his unfitness to parent Michael, he does not identify any error by the experts in formulating their opinions, nor any error by the court in relying upon them. The record clearly supports the experts' opinions that Robert was not fit to parent Michael at the time of termination.
C.
The third prong requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1a(3). Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This factor requires the Division to make diligent efforts to reunite the family. K.H.O., supra, 161 N.J. at 354. Whether a parent successfully completed the services offered is not relevant to whether the third prong has been met because the Division's efforts are not measured by their success. D.M.H., supra, 161 N.J. at 393.
The record clearly demonstrates that the Division offered Tammy a multitude of services over nearly four years of proceedings including substance abuse evaluation referrals and treatment; economic support; housing; individual and family counseling; and psychological evaluations. While Tammy now contends she should have been referred to a post-traumatic stress disorder program, she had numerous opportunities to seek treatment. Additionally, given her poor compliance and participation record, it is unclear whether she would have followed up on such a referral. In any event, the Division's efforts certainly met the requirement of reasonableness.
Robert contends that his girlfriend could have helped care for Michael. However, the Division is only required to "assess whether relatives of the child can provide care and a home." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (2013).
The Division made attempts to communicate with Robert, gave referrals to substance abuse and psychological evaluations, and provided supervised visits. The court properly determined that Robert failed to avail himself of Division services, and that the Division made reasonable efforts to reunify the family.
We disagree with Robert's argument that the Division failed to offer appropriate services both while he was in the community and incarcerated, pursuant to New Jersey Division of Youth and Family Services v. R.G., 217 N.J. 527 (2014). In R.G., the Court made clear that the Division provided insufficient services and essentially "abandoned any plan for reunification" when it did not facilitate communication between that defendant and his child, never compared available prison services to the Division's services, never attempted to schedule services upon that defendant's release from prison, and did not reevaluate what services it could provide. Id. at 562-63. The Court also noted that the defendant in R.G. had a relationship with the child prior to his incarceration, attempted to maintain contact with the child, and voluntarily participated in parenting classes and therapy while in prison. Id. at 535-41.
Here, the Division provided more services to Robert than it did to the defendant in R.G., including supervised visits and substance abuse referrals. Additionally, the Division's attempts to communicate with Robert were unsuccessful due to his unwillingness to participate in those discussions. Robert also did not have a long-standing relationship with Michael, did not communicate with him regularly, and made no effort to improve his fitness as a parent. Therefore, the court did not err when it considered Robert's failure to avail him of the Division's services as part of the determination that the Division provided reasonable efforts to reunite the family under prong three.
D.
The fourth prong, that termination of parental rights will not do more harm than good, "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 608 (1986). That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (2005). When parents expose a child "to continuing harm . . . and [are] unable to remediate the danger to the child, [who] has bonded with the foster parents . . . provid[ing] a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.
In establishing this prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. J.C., supra, 129 N.J. at 19. "The question . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.
In addition, the Division must prove that the parent's actions or inactions contributed to the forming of that bond between the child and the foster parents, and that "the harm caused to the child from severing that bond rests at the feet of the parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010). A child's need for permanency and stability is an important consideration. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007).
The trial court properly determined that there was sufficient evidence to satisfy prong four. We emphasize that the court relied on the credible expert testimony of Drs. Kanen, Jewelewicz-Nelson, and Sostre that both Tammy and Robert lacked the ability to support themselves and the children, prioritized their needs above the children's needs, lacked adequate parenting skills and temperaments, and had significantly weaker bonds with the children than the foster parents did. The testimony established that any harm resulting from removal from the foster parents could not be ameliorated by defendants, but that the foster parents could ameliorate any harm resulting from termination of defendants' parental rights.
Tammy's arguments regarding the experts' review of the record, the fairness of the location of one of the bonding evaluations, and the foster family's decision to leave the children with Tammy while they vacationed are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Similarly, Robert's arguments that Michael's relationship with his foster parents should not be a consideration and that children should remain with their biological parents do not warrant discussion. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION