Opinion
DOCKET NO. A-5039-14T3
11-22-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.F., Defendant-Appellant, and J.J.T., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF D.K.F. and E.J.F., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay Bernstein, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.K.F. (Karen Ann Lodeserto, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fisher, Ostrer, and Leone. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-213-14. Joseph E. Krakora, Public Defender, attorney for appellant (Jay Bernstein, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Thomas Ercolano, III, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor D.K.F. (Karen Ann Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant S.F. ("Mother") appeals the June 26, 2015 order terminating her parental rights over D.K.F. ("Daughter") and E.J.F. ("Son"). For substantially the reasons given in Judge Wayne J. Forrest's thorough eighty-page opinion, we affirm.
I.
The following facts are taken from the family court's opinion or from the evidence at trial. Mother has an almost thirty-year history with the Division of Child Protection and Permanency, previously called the Division of Youth and Family Services (collectively the "Division"). Her Son and his twin brother were born in 2003, and Daughter was born in 2005. In early 2008, the Division received referrals that Mother was using narcotics in the presence of the children, Mother twice tested positive for cocaine and heroin in court, and she admitted repeatedly using those drugs. The Division removed the children from Mother's care but returned them in June 2009. In February 2012, the children were briefly removed from Mother after she was arrested following a drug-related physical altercation with two of her adult daughters.
In June 2012, the children were removed again after a Division caseworker visited Mother's home to find it was boarded up. When asked, Mother informed the caseworker that she failed to pay her rent, was evicted and homeless, and was temporarily staying with one of her adult daughters. Mother chose to leave the children in the care of their father, J.J.T. ("Father"). The Division determined Father had a criminal drug history and tested positive for cocaine. Father refused to participate in any substance abuse treatment and requested the children be removed from his care.
In July 2012, the Division placed the children in a foster home. In October 2012, the children were removed from their foster home at the request of their caretaker and placed in a new foster home. The children remained there until June 2013, when Son was placed with Mother's aunt and uncle and Daughter was placed with Mother's cousin. They remain with those familial caretakers.
Mother was homeless and arrested twice in late 2012 and 2013. Even when released, she admittedly did not visit her children from January 2013 to October 2013. She admitted she was using heroin and cocaine, and that she had an extensive drug history. Mother entered a six-month program at the Walter Hoving Home, a residential rehabilitation program in New York. She was discharged in November 2013 and was again homeless and unemployed. Mother successfully attended several drug treatment programs and therapy sessions in 2013. Mother reported she had been sober for two years at the time of trial.
In March 2014, the Division filed a complaint for guardianship of Daughter, Son, and Son's twin brother. The trial commenced in March 2015 and continued into June 2015.
On June 26, 2015, the family court terminated the parental rights for both Mother and Father as to all three children. Mother filed a notice of appeal in July 2015. In this appeal, we consider Mother's challenges to the judgment of guardianship over Son and Daughter.
Father has not appealed the termination of his parental rights.
In December 2015, Mother filed a motion to remand, citing that Son's twin brother's familial caretaker requested his removal from her home and he was now living with a non-relative who was unwilling to explore adoption. We temporarily remanded the matter to allow Mother and the Law Guardian for the twin brother to file a motion to vacate the judgment of guardianship over the twin brother due to his change in living circumstances. The family court reopened the guardianship matter as to the twin brother only. Therefore, the twin brother's guardianship is not before us.
II.
We must hew to our deferential standard of review. "Appellate review of a trial court's decision to terminate parental rights is limited[.]" In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our task is to determine whether the decision "is supported '"by substantial and credible evidence" [i]n the record.'" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citations omitted). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citation omitted).
Further, "[b]ecause of the Family Part's special jurisdiction and expertise in family matters, we accord particular deference to a Family Part judge's fact-finding." N.J. Div. of Youth & Family Servs. v. T.M., 399 N.J. Super. 453, 463 (App. Div. 2008); see Cesare v. Cesare, 154 N.J. 394, 413 (1998). Thus, "[w]e will not overturn a family court's factfindings unless they are so '"wide of the mark"' that our intervention is necessary to correct an injustice." F.M., supra, 211 N.J. at 448 (citation omitted).
III.
"A parent's right to enjoy a relationship with his or her child is constitutionally protected." In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). However, this protection "is tempered by the State's parens patriae responsibility to protect the welfare of children." Id. at 347; see N.J.S.A. 30:4C-1(a).
Under Title Thirty, the Division must prove by clear and convincing evidence that termination of parental rights is in the best interests of the children. N.J.S.A. 30:4C-15(c); F.M., supra, 211 N.J. at 447. The Division must show:
(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).]
Here, the Division proved each prong by clear and convincing evidence. We will discuss each prong in turn.
IV.
For substantially the reasons set forth by the family court, we agree the Division proved by clear and convincing evidence that the "safety, health, or development [of Son and Daughter] has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). As the family court found, Mother's "poor judgment in using illicit substances, failing to pay rent . . . and placing [the children] with [Father] who also used illicit substances" were acts of neglect, placing the children at "substantial risk of harm" and causing "great instability in their lives." See N.J. Div. of Youth & Family Servs. v. L.M., 430 N.J. Super. 428, 444 (App. Div. 2013) (finding lack of appropriate housing poses a risk to children). Indeed, psychological evaluations suggested Mother's drug abuse and instability resulted in actual emotional harm to the children due to lack of stability and permanency. See In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). The children have been removed from Mother's care three times and have changed residences repeatedly in the four years before trial. The Division's expert at trial, Dr. Peter DeNigris, testified Mother's lack of stability and permanency significantly heightened the risk to Son and Daughter of long-lasting and harmful psychological effects.
V.
Prongs one and two "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." In re Guardianship of DMH, 161 N.J. 365, 379 (1999). To establish prong two, the Division can show "the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm." K.H.O., supra, 161 N.J. at 348. Alternatively, the Division can establish that "the parent has failed to provide a 'safe and stable home for the child' and a 'delay in permanent placement' will further harm the child." Id. at 348-49, 352. Prong two may be satisfied by a showing "of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse" or "the inability to provide a stable and protective home." Id. at 353. Here, the family court found Mother "has had a long history of substance abuse, unstable housing and unemployment." That finding was amply supported by the record.
Mother admitted she began using cocaine when she was thirteen years old and heroin when she was twenty-one. Mother experienced periods of sobriety only to relapse again. For example, Mother claimed she stopped using cocaine and heroin after November 2008, but this period of sobriety was broken in 2012-2013, resulting in multiple arrests for possession of drugs and drug paraphernalia.
Neither expert denied Mother has a serious substance-abuse disorder. Dr. DeNigris testified that Mother's history of substance abuse still posed a large barrier to a reunification plan, largely because Mother has not experienced the stress of caring for her children on a full-time basis for three years. Even Mother's expert testified that Mother's sobriety and stability were still large concerns.
The family court acknowledged Mother had not used drugs since June 2013 but noted that "when compared with her drug use history dating back more than forty years, . . . approximately two years of abstaining from using substances is a very short period of time." The court found "it is impossible to know that this two year drug-free period indicates that [Mother] is stable enough to have her [] children placed back into her care" and that "[t]his may be just another one of those periods of stability in [Mother]'s life, which could be followed by a long period of instability."
Under prong two, a court must consider whether the parent will be "able to continue a parental relationship without recurrent harm to the child." Id. at 348. "Predictions as to probable future conduct can only be based upon past performance — and the record here is a poor one indeed." J. v. M., 157 N.J. Super. 478, 493 (App. Div.), certif. denied, 77 N.J. 490 (1978); accord Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 68 (App. Div.), certif. denied, 174 N.J. 39 (2002). The court's finding was "'conduct-based,' not based on '[p]resumptions of parental unfitness.'" N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 78 (App. Div. 2010) (alteration in original) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606, 608 (2007)). Therefore, the family court appropriately weighed Mother's past substance abuse in considering prong two.
Given our deferential standard of review, we cannot fault the family court's concern that Mother will again relapse. That concern was heightened because, when asked by Dr. DeNigris what her plan was if she were to relapse, Mother replied she would eventually ask the children if they wanted to live with their familial caretakers again. The court noted that Mother "fails to recognize that placing the children back with their current relative caretakers is not a simple solution to tough and stressful moments of parenting."
Mother has also demonstrated great instability in "provid[ing] a stable and protective home." K.H.O., supra, 161 N.J. at 353. When the Division removed Son and Daughter from Mother after her 2008 drug relapse, she told the caseworkers she had failed to pay her rent for six months and was about to be evicted. In February 2009, Mother was living in a homeless shelter. By mid-2009, Mother moved into a home, but by June 2012, Mother was evicted from this home after she failed to pay rent. From June 2012 until February 2015, Mother was either incarcerated, in a rehabilitation facility, living with one of her adult children, or homeless.
In February 2015, Mother informed Dr. DeNigris she obtained a contract job reviewing medical records for various doctors' offices. In March 2015, Mother was able to rent a two-bedroom apartment pursuant to a one-year lease. Because these last-minute developments occurred just before or during trial, Dr. DeNigris opined Mother had not demonstrated an ability to maintain them, to provide stability to the children, and to avoid future removals. He felt Mother would have to maintain housing and employment for at least a year to demonstrate the requisite stability.
Dr. DeNigris testified that the Division should not wait longer and further delay a permanent solution. He testified to the importance of permanency for the children, stating that a sense of permanency informs their senses of "stability, security, attachment, [and] trust." He also testified that the lack of a sense of permanency can lead to symptoms of "anxiety, depression, problems with self-esteem . . . [and] feelings of self-blame or guilt."
"A child cannot be held prisoner of the rights of others, even those of his or her parents. Children have their own rights, including the right to a permanent, safe and stable placement." 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[ren] 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).
New Jersey adheres to a "strong public policy in favor of permanency." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 510 (2004) (quoting K.H.O., supra, 161 N.J. at 357). "The emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." C.S., supra, 367 N.J. Super. at 111. We must recognize "the paramount need the children have for permanent and defined parent-child relationships." In re Guardianship of J.C., 129 N.J. 1, 26 (1992). Moreover, Dr. DeNigris testified that the consequences of another failed reunification with Mother would be "devastating."
Finally, there was "evidence that separating the child[ren] from [their] resource family parents would cause serious and enduring emotional or psychological harm to the child[ren]." N.J.S.A. 30:4C-15.1(a)(2). Dr. DeNigris testified that the children would experience anger, depression, low self-esteem, and confusion if they were removed, and that Mother would not be in a position to mitigate that harm.
Judge Forrest agreed it would be inappropriate, given Mother's "long history of substance abuse, unstable housing and employment," to place the children "in [this] environment where there may be instability and a lack of permanency." The court found "no realistic likelihood that [Mother] . . . will be able to safely and appropriately care for [the children] now or in the foreseeable future." See K.H.O., supra, 161 N.J. at 357. Judge Forrest has presided over this case since the first Order to Show Cause was filed in March 2014. Thus, deference is appropriate because he "has a 'feel of the case' that can never be realized by [our] review of the cold record." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citation omitted). Given the ample evidence of prior relapses and instability, and applying our deferential standard or review, we cannot say Judge Forrest's findings were wide of the mark. "[W]hen a reviewing court concludes there is satisfactory evidentiary support for the [family] 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."'" N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 477 (App. Div. 2012) (quoting Beck v. Beck, 86 N.J. 480, 496 (1981)).
VI.
We agree with the family court's findings regarding prong three and add the following. Under prong three, the Division's "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-15.1(a), must be analyzed "with reference to the circumstances of the individual case," DMH, supra, 161 N.J. at 376, 390. Defendant analogizes to factually-disparate cases such as R.G., but there the Supreme Court emphasized "that termination of parental rights cases are fact-sensitive and turn on the particular circumstances of each case." R.G., supra, 217 N.J. at 562.
The Division provided Mother and the children with numerous services. In particular, the Division made referrals for Mother to obtain housing, contacting Welfare and the Keeping Families Together Program. Such "referrals to obtain housing" can constitute reasonable efforts. DMH, supra, 161 N.J. at 393; cf. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 158 (2010) (finding the Division "never suggested that assistance might be available to defendant's sister to improve her housing circumstances"). While the Division's efforts in obtaining housing for Mother were not successful, "'[t]he diligence of [the Division]'s efforts on behalf of a parent is not measured by' whether those efforts were successful." F.M., supra, 211 N.J. at 452 (citation omitted).
VII.
Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "[T]he question to be addressed under [prong four] is whether, after considering and balancing the two relationships, the child[ren] will suffer a greater harm from the termination of ties with [their] natural parents than from permanent disruption of [their] relationship with [their] foster parents." I.S., supra, 202 N.J. at 181 (citations omitted). To prove the fourth prong, "'the [Division] should offer 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 both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (citation omitted).
Dr. DeNigris conducted comparative bonding evaluations of the children with Mother and the familial caretakers in 2014 and again in 2015. He testified there is "no healthy bond present" between Mother and the children. His conclusion was based on the finding that Mother was not someone the children could look to in terms of "reliance and having their needs met." By contrast, Dr. DeNigris found there were healthy bonded relationships between the children and their familial caretakers. Daughter bonded quickly with her familial caretaker, and Dr. DeNigris saw a healthier bond between Son and his familial caretaker during his 2015 bonding evaluation, attributing the improvement to the greater sense of stability he has with the familial caretakers.
Defendant's expert, Dr. Kenneth McNiel, conducted bonding evaluations of the children with Mother and familial caretakers in 2014, and with Mother (but not the familial caretakers) in 2015. He testified the children are well bonded with both Mother and their caretakers and that the children do not want to lose any of the relationships they currently hold.
The family court found both Dr. DeNigris and Dr. McNiel to be knowledgeable and credible. Mother faults the court for not clearly stating which expert it was crediting. Nonetheless, we recognize the court's conclusions mirrored those of Dr. DeNigris, on whom the court ultimately relied.
Importantly, both Son and Daughter prefer to remain with their familial caretakers. The family court could properly consider "the wishes of a child over the age of ten, who has reached a level of maturity that allows the child to form and express in an intelligent opinion." E.P., supra, 196 N.J. at 113.
Moreover, the Law Guardians for both Son and Daughter supported termination of Mother's parental rights. "[T]he Law Guardian's position [is] of particular significance because" the Law Guardian "has to advocate for the best interests of [children] too young to speak for [themselves], and represents neither adversary in the case." N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009).
"The crux of the fourth statutory subpart is the child's need for a permanent and stable home, along with a defined parent-child relationship." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013). Mother has a long history of drug use and instability. While Mother took steps in the right direction at the eleventh hour, we cannot fault the family court's findings that her efforts were too late and did not provide sufficient assurance of the stability and permanency Son and Daughter need and deserve. As the family court found, "[f]urther delay of permanent placement will only add to the harm."
Mother argues we should reverse based on the family court's agreement to reopen the guardianship proceedings as to Son's twin brother. However, that occurred after Mother appealed the court's verdict of guardianship regarding Son and Daughter, and is not properly part of our review.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION