Opinion
DOCKET NO. A-0078-13T2
06-20-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.C., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF C.B., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher M. Psihoules, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.B. (Damen J. Thiel, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Maven and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FG-19-18-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Dianne Glenn, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Christopher M. Psihoules, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor C.B. (Damen J. Thiel, Designated Counsel, on the brief). PER CURIAM
Defendant S.C. (Sara) appeals from an August 6, 2013 judgment, entered following a three-day trial, which terminated her parental rights and awarded guardianship of her then three-year-old son C.B. (Carl) to the Division of Child Protection and Permanency (Division). On appeal, defendant argues the court misapplied the applicable legal standards and erred in assessing the Division's evidence, which she maintains was insufficient to satisfy each of the four prongs of the statutory test, N.J.S.A. 30:4C-15.1(a), to prove guardianship was in the best interest of her son. Following our review, we reject defendant's arguments as unfounded and affirm substantially for the reasons set forth in the oral opinion rendered by Judge James A. Farber. R. 2:11-3(e)(1)(A).
For purposes of this opinion, we use fictitious names for the parties, the resource parent, the children, and defendant's paramour.
Carl's father, D.W., was also a defendant in the guardianship proceedings. He made a voluntary surrender of his parental rights on July 21, 2010, and has not appealed from the guardianship judgment.
I.
The following facts are derived from the trial record. Defendant has a complex history dating back to her childhood. She was born in 1987 and spent significant time in foster care and residential treatment as an adolescent. She had multiple arrests as a juvenile, and as an adult was arrested for shoplifting twice in 2009 and once in 2011. Defendant also has an extensive history of admitted substance abuse, which she attributes to her childhood problems. Defendant reported first using alcohol at age ten. Defendant admitted to using a variety of drugs but stated heroin was her drug of choice, which she used repeatedly between the ages of fourteen and twenty-one.
Defendant has been hospitalized on numerous occasions due to suicidal ideation, with the last admission occurring in May 2010. Defendant admitted to suicide attempts by poisoning herself, cutting her wrists, hanging herself, and overdosing on drugs. She has received inpatient treatment on fifteen occasions for psychological and emotional problems, including serious depression, anxiety, violent behavior or rage, and attempted suicide and thoughts of suicide. Defendant was diagnosed with bipolar disorder at the age of thirteen. Additionally, defendant maintains she continues to have flashbacks and nightmares associated with her history of trauma. Furthermore, throughout the course of her adult life, defendant has struggled to maintain housing. The record indicates at least twenty different residences for defendant between 2008 and 2013.
The Division first became involved with defendant as a parent in 2007, shortly after she gave birth to Carl's older half-brother, N.C. (Neil). Over the next year, the Division received several referrals that defendant was not providing Neil with proper care. Then, on April 29, 2008, the Division executed an emergency removal of one-year-old Neil after receiving and investigating a report Neil had been left alone and then found holding a cigarette butt. On May 6, 2008, defendant stipulated to "overall lifestyle instability" before Judge Farber. After providing extensive services with no real improvement in defendant's situation, on April 28, 2009, the Division filed a guardianship complaint to terminate the parental rights of defendant and Neil's father, C.L., to Neil.
C.L. and defendant surrendered their parental rights to Neil in December 2010. Neil was then adopted by his foster mother, Ms. A.
Carl was then born on February 13, 2010. Before Carl was released from the hospital, the Division made an emergent application for custody of Carl, which the court granted based on defendant's ongoing history of drug abuse, mental illness, and unstable housing. Carl was placed with a resource parent, Ms. A., in the same home as his half-brother, Neil. At the time of Carl's removal, defendant did not have a plan for him, or any source of income. She resided with her paramour, C.B. (Craig), who is not the father of either of defendant's children; however, he is a registered sex offender.
At the time of trial, defendant continued to reside with Craig. Because of Craig's sex-offender status, the judge noted defendant could not use him to care for Carl unsupervised. Nor would Craig's parole officer allow him to stay overnight in the same home with Carl. Thus, if Carl were returned to defendant, she would have to obtain and maintain separate housing.
After efforts to return Carl to the custody of defendant failed, the Division filed a guardianship complaint against defendant and Carl's father, D.W., on February 28, 2011. On September 9, 2011, D.W. completed a surrender of his parental rights, and the case proceeded to trial against defendant in February 2012. At the conclusion of the trial, Judge Farber dismissed the guardianship complaint, concluding the Division failed to carry its burden of satisfying the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. Among the shortcomings, the court cited that "no comparative bonding evaluation was performed, so the [c]ourt cannot find that termination of parental rights will not do more harm than good." The judge then reinstated the protective services litigation and ordered defendant receive another opportunity for reunification with Carl. After additional efforts to achieve reunification failed, the Division filed a new guardianship complaint on November 2, 2012.
The only bonding evaluation presented was between Carl and his birth parents, defendant and D.W.
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The case proceeded to trial on the Division's second guardianship complaint in June and July 2013, with the court receiving testimony from seven witnesses: an employee of the Ocean County Board of Social Services; three Division case workers; two psychologists, Division expert Mark Singer, Ed.D., and Law Guardian expert Lesley Trout, Ed.D.; and defendant. On August 6, 2013, Judge Farber rendered his decision from the bench, concluding the Division had met its burden of proof by clear and convincing evidence on all four prongs of the statutory test of N.J.S.A. 30:4C-15.1(a), and determined termination of defendant's parental rights of Carl was appropriate at that time. Defendant appeals from the guardianship judgment entered on that date.
II.
Parental rights, while constitutionally protected, are not absolute. In re Adoption of a Child by W.P. & M.P., 308 N.J. Super. 376, 382 (App. Div. 1998), vacated on other grounds, 163 N.J. 158 (2000). The government "is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized." Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 119 (1979) (citing Wisconsin v. Yoder, 406 U.S. 205, 230, 92 S. Ct. 1526, 1540, 32 L. Ed. 2d 15, 33 (1972)). Accordingly, the State, as parens patriae, may sever the parent-child relationship when necessary to protect a child from serious physical and emotional injury. W.P. & M.P., supra, 308 N.J. Super. at 382.
When a child's biological parents resist termination of parental rights, it is the court's function to decide whether the parents can raise the child without causing further harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents can "cease causing their child harm" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.
A trial court's examination in a guardianship matter focuses upon what course serves the "best interests" of the child. In re Guardianship of K.H.O., 161 N.J. 337, 343 (1999). Our Legislature requires satisfaction of the "best interests of the child" test, codified at N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before termination of parental rights can occur. See N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to 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.
These factors are neither discrete nor separate; rather, they "'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 103 (2008) (quoting K.H.O., supra, 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citations and internal quotation marks omitted), certif. denied, 190 N.J. 257 (2007).
Defendant argues the judge erred in his findings because she never harmed Carl, was not provided reasonable services to allow reunification with the child, the Division failed to consider alternatives to guardianship, and the child would be harmed by termination of his parental rights. We reject these assertions.
The harm facing the child "need not be physical [as] . . . [s]erious and lasting emotional or psychological harm to [the] child[] as the result of the action or inaction of [her or his] biological parents can constitute injury sufficient to authorize the termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). In fact, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999).
Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357; see also J.C., supra, 129 N.J. at 26 (noting children have "an essential and overriding interest in stability and permanency"). This requires the "best interests" test be viewed in light of amendments to N.J.S.A. 30:4C-15.1, which emphasize the shift "from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." N.J. Div. of Youth & Family Servs. v. C.S., 367 N.J. Super. 76, 111 (App. Div.) (citing N.J.S.A. 30:4C-11.1), certif. denied, 180 N.J. 456 (2004). To this end, "the attention and concern of a caring family is 'the most precious of all resources[,]'" particularly to a young helpless child who needs extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).
As to prong one, the court found that even though defendant claims she wants to care for Carl, she has no plan for doing so. The judge noted defendant and Craig "have been unable to maintain any housing, whether through their own income, Social Services, General Assistance or Federal Emergency Management Agency, but they propose a plan whereby they would have to cover the overhead for two dwelling units [if Craig is not approved for a child live-in]. That is clearly not practical." The judge found "a troubling instability in [defendant's] lifestyle[,]" and this instability will endanger Carl's well-being. Furthermore, the judge credited Dr. Singer's testimony which described defendant's "inability to maintain overall stability."
The court noted at the first guardianship trial it believed that additional time might help to remediate defendant's problems. However, "even under the pressure of time[,] with the Division, Law Guardian and Court watching, and even though a three-month extension has turned into almost [eighteen-months], [defendant's] status is the same as in February 2012." The court noted defendant's inability to maintain overall stability:
She is unable to create the necessary foundation for her son.For those reasons, the court found by clear and convincing evidence that Carl's safety, health, and development will be endangered by continuing the parental relationship.
. . . .
Her behaviors . . . have not changed and are unlikely to change.
[Defendant] lacks insight. She exercises poor judgment. A child in her care would be at significant risk.
. . . .
As Dr. Singer insists, [defendant] cannot adequately care for herself, no less [Carl].
As to prong two, the judge noted that both prong one and prong two overlap, and his findings under prong one "supports a finding by clear and convincing evidence, [defendant] cannot presently eliminate the harm[,] nor provide a safe and stable home in the future. The [c]ourt makes that finding."
As to prong three, the court found the Division made reasonable efforts to stabilize defendant and reunify her with Carl throughout the entire proceedings. At the conclusion of the first guardianship trial, the judge found "[t]he record is replete with reasonable efforts. Substance abuse evaluations and recommendations, psychological evaluations, bonding evaluations, referrals from psychiatric services . . . [visitation] at [defendant's] multiple homes and residences and at [Carl's] foster home . . . the list goes on and on." The judge made the same finding at the conclusion of the second trial, noting the broad array of services continued after February 2012. The identified services all support the judge's finding, by clear and convincing evidence, the Division made reasonable efforts to provide services to help defendant correct the circumstances which led to Carl's placement outside the home. Additionally, after the second trial, the court found no alternative to termination:
The [c]ourt considered, again, extending the time frame and ordering a continuation of services. First, the [c]ourt has already done that without productive results. Second, and more importantly, extensions are really only warranted if found to be in the best interest of the child, as opposed to granting the parent more time to remediate issues. It's not in [Carl's] best interest as . . . . [h]e's three and a half years old and needs permanency.
As to prong four, in assessing the harm resulting from termination of parental rights or removing the child from his foster mother and brother and the home where he has resided for almost his entire life, we defer to Judge Farber's credibility determinations regarding the expert bonding testimony. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Here, the court found the comparative bonding evaluations performed by Dr. Singer and Dr. Trout established that Carl would suffer severe and enduring harm if removed from Ms. A. The court found Carl had a strong attachment to Ms. A. and that primary attachments form between the ages of two and three. At the time of the judge's decision, Carl was nearly three and one-half years of age. While noting defendant is a "significant figure" in Carl's life, the judge found "she is not the central figure. That title belongs to Ms. A[,] who is [Carl's] psychological parent and provides the dependency roles for him." The judge further concluded Ms. A. could readily mitigate any harm that may result from termination of defendant's parental rights, which harm would not be severe or enduring. Conversely, the judge found that severance of Carl's relationship with Ms. A "would cause severe and enduring harm . . . [and defendant] lacks the emotional resources to mitigate." Thus, the judge found "by clear and convincing evidence that three-and-a-half-year-old [Carl] needs permanency now and the only avenue for that permanency is termination of parental rights followed by the adoption by Ms. A., and that result will not cause more harm than good."
These facts, when considered in light of defendant's chronic instability with housing and employment along with her mental illness and her history of substance addiction, support the conclusion that severing the bond with defendant in favor of achieving permanency for the child would not cause more harm than good. See K.H.O., supra, 161 N.J. at 363 ("[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent[s] is not as strong, that evidence will satisfy the requirement . . . that termination of parental rights will not do more harm than good to the child.").
Our review supports Judge Farber's evaluation of the underlying facts and the legal conclusions drawn therefrom. Accordingly, we sustain the judgment terminating defendant's parental rights and awarding the Division guardianship of Carl.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION