Opinion
DOCKET NO. A-3187-13T2
03-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.A., Defendant-Appellant, and R.D. and A.J., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF T.R.S.D. and B.M.S.D., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-120-13. Joseph E. Krakora, Public Defender, attorney for appellant (Eric R. Foley, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant S.A. appeals a judgment rendered at the conclusion of a two-day trial that terminated her parental rights to her two youngest sons, T.R.S.D. (Ted), born February 22, 2003, and B.M.S.D. (Ben), born January 7, 2006. In appealing, defendant argues:
Defendant's two other sons are R.A. (Richard), born on December 20, 1991, and S.M.A. (Steven), born on February 12, 2001. The oldest child was born when defendant was not quite seventeen years old.
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AS A MATTER OF LAW BECAUSE THE RECORD DEMONSTRATES THAT THERE IS NO FORESEEABLE PERMANENCY PLAN OF ADOPTION FOR THE CHILDREN.
II. THE COURT COMMITTED REVERSIBLE ERROR AS A MATTER OF LAW BY FAILING TO CONSIDER ALTERNATIVES TO TERMINATION OF PARENTAL RIGHTS.
III. THE DIVISION FAILED TO MAKE REASONABLE EFFORTS TOWARDS REUNIFICATION AND THE COURT'S FINDINGS WERE INSUFFICIENT PERTAINING TO THE THIRD PRONG OF THE BEST INTERESTS STANDARD.
IV. THERE WAS NOT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THE TRIAL COURT'S DETERMINATION THAT S.A. WAS UNWILLING AND UNABLE TO PARENT HIS CHILD.
V. THE COURT'S FINDINGS UNDER THE FIRST PRONG WERE INSUFFICIENT AND THE DIVISION
FAILED TO PROVE THAT S.A. CAUSED HARM TO THE CHILDREN.After carefully canvassing the record in light of the arguments posed by defendant in this appeal, we reject these arguments and conclude that the judge's findings are supported by credible evidence and entitled to our deference. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012); Cesare v. Cesare, 154 N.J. 394, 413 (1998). We add only the following comments.
Parents have a constitutionally protected right to the care, custody and control of their children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). "The rights to conceive and to raise one's children have been deemed 'essential,' 'basic civil rights . . .,' and 'rights far more precious . . . than property rights.'" Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558 (1972) (internal citations omitted). "[T]he preservation and strengthening of family life is a matter of public concern as being in the interests of the general welfare." N.J.S.A. 30:4C-1(a); see also K.H.O., supra, 161 N.J. at 347.
The constitutional right to the parental relationship, however, is not absolute. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). At times, a parent's interest must yield to the State's obligation to protect children from harm. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 397 (2009); In re Guardianship of J.C., 129 N.J. 1, 10 (1992). To effectuate these concerns, the Legislature created a test for determining whether a parent's rights must be terminated in the child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division of Child Protection and Permanency prove by clear and convincing evidence the following four prongs:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also A.W., supra, 103 N.J. at 604-11.
(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 . . .;
(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.
Defendant argues that the judge erred in finding the Division provided clear and convincing evidence on the first prong because the judge did not specify the exact facts that established the first prong and only "made a general finding" regarding the substantiations of prior harm to the children without applying "this general finding to any legal standard." We disagree.
During a guardianship trial, the Division must establish that the health, safety, and welfare of a child would be endangered if a relationship with the parents was allowed to continue. J.C., supra, 129 N.J. at 10. When a parent opposes termination, the court must determine whether the parent could care for the children without causing harm. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005). Significantly, our Supreme Court has held that a parent's inability to provide care is harmful and can endanger the health of a child. K.H.O., supra, 161 N.J. at 346, 352; see also In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) (observing that "[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"). A court must not wait to intervene until the child is actually irreparably harmed physically or emotionally. Id. at 383. See also N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438-39 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Proof of child abuse or neglect regarding one child is admissible as evidence of the abuse and neglect of another. N.J.S.A. 9:6-8.46(a)(1); N.J. Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). And the past conduct of a parent is relevant in determining whether a child would be at risk for harm when in that parent's care. N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 573 (App. Div. 2010). In fact, a parent's prior conduct is often indicative of whether that parent will engage in similar conduct in the future. J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978). Accordingly, contrary to defendant's suggestion, a judge is permitted to consider past neglect when determining whether a parent will harm a child in the future. J.C., supra, 129 N.J. at 10.
Although it may be arguable that the judge did not expressly enumerate the facts that established Ted and Ben were harmed or would continue to be harmed if returned to defendant's care, the judge implicitly relied on the substantial and credible evidence in the record - with which he was certainly familiar after years of litigation concerning this family - that overwhelmingly demonstrated that the first prong favored termination. For example, defendant's children were removed from her care in 2005 when, during an altercation, defendant pinned Richard, held a knife to his throat and threatened to kill him. In 2012, defendant beat Ted and Ben with a broom and "threatened that she did not want them" and "should have gotten an abortion." Obviously, these are some of the instances to which the judge implicitly referred in finding there was clear and convincing evidence to support the first prong. The judge was entitled to consider these and other prior substantiations, even though only one related to an incident with Ted and Ben, in concluding that the first prong was clearly and convincingly proven.
Moreover, the judge recognized there had been no improvement in defendant's ability to parent over time or to deal with the underlying problems that led to the substantiations. The judge found that defendant has a pattern of exploding at and abusing the children. Despite many opportunities to remedy these problems with the assistance of services offered by the Division, defendant continued to cause the children harm by not "even recogniz[ing] that maybe she has a problem."
The judge also noted that over the years defendant "put[] on a good face" and "look[ed] like she cares about these children," but she ultimately was unavailable "when it comes to doing something or caring for these children." Ultimately, the judge found that defendant "really doesn't want the responsibility" of parenting Ted and Ben.
In support of his conclusions, the judge credited the expert testimony of Dr. Leslie J. Williams, who determined that defendant would not be able to take care of the needs of Ted and Ben who were "not easy children" to deal with. And the judge was entitled to reject the contrary opinion of defendant's expert, Dr. Andrew P. Brown, III, because it was based on facts the judge not only did not find but also were contrary to the judge's own view of defendant and the children.
Indeed, the evidence firmly established that, at the end of the failed reunification in February 2012, defendant asked the Division to place Ted and Ben back in foster care, candidly admitting she was incapable of caring for them. The judge found that defendant did not seek services to deal with the difficulties that arose during the failed reunification and did not take proactive measures after the boys were removed to make changes to the situation or improve her own abilities to deal with the difficulties. The judge found that defendant's response to all this was to simply ask the Division to "take these children, put them in foster care, I can't deal with them," which the judge properly recognized was "not a responsible" thing for a caring parent to say.
Defendant misinterprets the judge's decision in arguing that the judge placed the burden of proof on her rather than the Division. Although he may not have recited the familiar standard of proof, there is no doubt that the experienced judge recognized and applied the correct standards and burden of proof. And, although the judge, in discussing the evidence, stated that defendant had not "demonstrated" any positive change and had not made a satisfactory "showing" of her ability to deal with Ted and Ben — the words that fuel defendant's argument about the burden of proof — what the judge meant was that the Division clearly and convincingly demonstrated there was no change in the circumstances since defendant effectively conceded in February 2012 that she was unable to cope with parenting Ted and Ben. In other words, defendant had not introduced any persuasive evidence that she had a different attitude toward the circumstances or a desire to parent these children and, therefore, the evidence — including her own earlier concession — remained the clear and convincing evidence of prongs one and two that supported termination of her parental rights.
Defendant also argues that termination should have been denied because of the considerable weight that should have been given to her continued relationship with Steven, who is now fourteen years of age. Indeed, the Division dismissed all litigation concerning Steven. Even though it may be concluded from this that the Division sees no problem with defendant's relationship with Steven, it does not follow that she is a fit parent for Ted and Ben. In other words, although poor parenting as to one child may suggest an inability to properly parent all other children, it does not necessarily follow that an ability to adequately parent one child precludes a determination that there is an inability – or unwillingness – to parent all children. The parental relationship in question in Title 30 litigation must, in the final analysis, be evaluated separately as to each child. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 443-44 (App. Div. 2009). So, while it was certainly relevant and of interest to recognize that defendant's relationship with Steven has remained intact, that fact did not preclude the termination of defendant's relationship with her younger sons.
As the judge observed, defendant did not present the typical problems that give rise to a Title 30 action, finding that defendant
has the finances, she has a home, she doesn't seem to have a drug and alcohol problem . . . she's had jobs along the way. . . .
But, for whatever reasons, . . . she's been incapable of having the fortitude of going forward and showing that she has the ability and the willingness to take on these children. . . .
. . . Anybody can do a parenting skills class and get a certificate for going there 12 times. That doesn't mean you've improved in being a parent. That's what it really takes, showing that you can care for these children. That you're willing to persevere, that you're willing to go through hardships because these children are not easy.
We also reject the argument – embedded within defendant's contentions about the fourth prong – that because there was no certainty about whether Ted and Ben would be adopted by their current foster parent, or anyone else for that matter, that the judge erred in terminating defendant's parental relationship. Although the fact that a foster parent is willing to adopt often provides considerable weight to a determination on the fourth prong, it is by no means essential. Here, as in many cases, the fourth prong was satisfied because of defendant's unfitness or unwillingness to parent these two children notwithstanding whether the children have an attachment to their foster parent. Moreover, the record reflects that Ted and Ben have been in various placements for nearly seven years and the reunification attempted in 2012 lasted for a mere three days before defendant asked the Division to take the children away. Ted and Ben are entitled to a permanent placement even if it is not the most optimal. And, as Dr. Williams testified, defendant – although arguably desirous of having the children returned to her care – had no plan for them, and the children would not suffer "severe and enduring harm" because the children "lack[ed] [] a significant emotional bond" or relationship with their mother. Having found credible Dr. Williams' views, the judge was certainly entitled to conclude that the fourth prong had been sufficiently demonstrated in these circumstances regardless of the likelihood of adoption.
Dr. Williams, whom the judge found credible, further testified that the children "obviously know that [defendant is] their mother[,]" but "they also know, and/or feel that she has not been there for them in a consistent parental manner, which effects how they feel. And, of course, both have said to me that they didn't want to return to her. So, that, I don't think that going forward they would be suffering severe harm if her rights were terminated."
--------
We find insufficient merit in defendant's remaining arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION