Opinion
DOCKET NO. A-4293-14T1
04-27-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.G., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L. and J.L., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Anastasia P. Winslow, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-52-14. Joseph E. Krakora, Public Defender, attorney for appellant (Anastasia P. Winslow, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Meaghan Goulding, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
In this appeal, defendant S.G. argues that the decision to terminate her parental rights to two of her children — J.L. (John, a fictitious name) and J.L. (Jane, also a fictitious name) — was contrary to the weight of the evidence and based upon a deprivation of due process. We find no merit in her arguments and affirm.
Defendant, who was born in 1991, has given birth to five children. The oldest, I.G., was born in 2009 and is currently in the custody of a maternal grandparent. John and Jane were born in 2010 and 2012, respectively. M.S. was born in 2013, after these proceedings commenced; pursuant to court order, M.S. is in the custody of a paternal grandparent. A.S., born in 2015, is the subject of a separate Title Nine action. Only John and Jane are involved in this appeal. The parental rights of their natural father, D.M., were terminated by way of this action; he has not appealed.
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 when a parent's rights must be terminated in a child's best interests. N.J.S.A. 30:4C-15.1(a) requires that the Division 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;
(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; andSee also A.W., supra, 103 N.J. at 604-11.
(4) Termination of parental rights will not do more harm than good.
After a four-day bench trial, during which the children's parents neither testified nor presented witnesses, the judge found the Division demonstrated, by clear and convincing evidence, that all four prongs supported termination of defendant's parental rights. These findings were supported by evidence the judge found credible and are 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).
Defendant appeared on only one of the trial days, and she did not appear for the judge's oral decision. We note that the judge, at the outset of the proceeding during which he rendered his oral opinion, expressed concern and suggested he had the authority to draw an adverse inference against defendant for her failure to appear — we previously held that a judge may not enter a default against a party in similar circumstances. See N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501, 507-10 (App. Div. 2009). Although it reversed our judgment on other grounds, the Supreme Court expressly agreed with our criticism of imposing such a sanction on a defendant who was not present but appeared through counsel, as occurred here. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 22 (2011). For the same reasons, we find that the judge spoke incorrectly when he stated at the outset of the proceeding that he was "going to use [defendant's failure to personally appear] against her because I'm permitted to do so." To be clear, we do not suggest that a factfinder may not draw an adverse inference when a party with personal knowledge fails to come forward to testify; here, the testimonial portion of the trial was complete and the proceeding was for the sole purpose of the judge's deliverance of his decision. Defendant had no obligation to be present — she was represented by counsel — and her failure to appear did not authorize the judge to hold it against her. Nevertheless, the findings that the judge thereafter expressed contained no hint that he had actually relied upon defendant's absence that day in terminating defendant's parental rights.
Briefly, we observe that the judge found credible the Division's witnesses in concluding that the four prongs were established. As is often the case, the proofs relevant to some prongs also demonstrate the establishment of other prongs. In many ways, the proofs as to one prong are relevant to all. For example, the first and second prongs — relating to whether the parent has or will endanger the children's safety, health or development and whether the parent is unable or unwilling to eliminate the harm — are illuminated by the fact that in fulfilling its prong three obligations, the Division made reasonable efforts to provide services to help the parent. Here, defendant relies on her impoverished condition in challenging the first and second prongs, but the response to that — as the judge made clear in his findings — is that defendant failed to avail herself of the reasonable efforts offered and provided. In other words, a parent in poverty cannot simply rely upon that condition to defeat a parental termination claim if reasonable efforts are offered to alleviate that condition.
Here, the evidence supports the judge's finding that, among other things, defendant: failed to adequately parent these children by leaving them with others for significant periods of time without providing the support those caregivers required to care for the children; was transient and often homeless; failed to provide basic necessities for the children, including medication John required due to illness; and used marijuana. From the outset of the Division's encounters with this family, the Division provided defendant with many services. Defendant, however, failed to complete substance evaluations and treatment, parenting skills classes, or engage in psychological evaluations in an attempt to determine and remedy the problems that led to the children's removal.
In addition, the evidence relating to prong three further illuminated the grounds for finding that prong four warranted termination. During the course of this guardianship matter, defendant failed to attend psychological and bonding evaluations, which would have provided further insight into whether termination would do more harm than good. Defendant was also inconsistent with visitation, only seeing the children five times from January 2014 through the completion of the guardianship trial in September 2014, despite the Division's considerable efforts generated by defendant's relocation to Cape May County (when the children were residing in Paterson).
The Division provided defendant with bus passes and moved the visitation location to Long Branch and then Toms River in an attempt to find a central location for visitation in light of defendant's move to Cape May County. --------
We also find no merit in defendant's argument that the Division should have done more to provide defendant with housing; any such efforts required cooperation from defendant, who apparently moved from location to location, including Union City, Paterson, Jersey City and, later, Wildwood, and, at times, simply "disappear[ed]." She never once presented the Division with a lease for a residence so that the Division could assist with housing. The judge correctly rejected her arguments — as do we — that the Division failed to make reasonable efforts in this regard.
Defendant also challenges the prong three finding with regard to the Division's efforts to find an alternative to termination. The judge found — and the record establishes — that the Division explored all alternatives suggested by both parents and ruled out those with whom it was given timely notice. Defendant, in particular, refers to an aunt and uncle in Florida as a possibility, but that suggestion came very late in the case. Such a dilatory request, which ultimately did not result in locating a resource for the child, could not serve to defeat all the Division's other efforts in this regard. N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). For these reasons, as well as those provided in the trial judge's oral opinion, we reject defendant's arguments regarding prong three.
We also find no merit in defendant's arguments regarding the fourth prong, particularly in light of the fact, which we have already noted, that defendant failed to attend the psychological and bonding evaluations sought by the Division. Defendant also chose not to call any witnesses on this subject, resulting in the judge hearing only the testimony on this prong from Dr. Dyer, who explained how the repeated disruptions in the children's lives brought about by defendant's unfitness had a destructive effect on the children. In Dr. Dyer's view, which the judge found credible, yet another failed reunification with either parent would lead to "irreversible damage" to one or both children.
We, thus, conclude that the judge was entitled to find that the Division presented clear and convincing evidence as to all four prongs when he first determined that termination of defendant's parental rights to both children was warranted.
This, however, does not end our inquiry. Defendant also argues that she was denied due process in light of events that followed the judge's initial decision. That is, the children's father, codefendant D.M., moved for reconsideration, arguing the absence of sufficient proof of a bond between the children and their foster parents, and the evidence of an affectionate relationship between the children and D.M., eviscerated the judge's finding on prong four. The judge granted the motion, but he also stated that, even though he did not think he would have come to the same conclusion if defendant alone had made the application, defendant was legally entitled to the benefit of the ruling he had made in D.M.'s favor.
At a later hearing, the judge heard evidence that D.M. had thereafter failed to attend visitation or engage in other services, had acknowledged his inability to parent the children, and had contemplated an identified surrender. Consequently, the judge found it appropriate to conform to his earlier opinion and he again entered judgment terminating the parental rights of both parents.
Defendant argues that this later unexpected entry of judgment violated her due process rights. We disagree. First, there is no question that the judge was not bound to reopen the original judgment, as it applied to defendant, because of evidence that supported only D.M.'s motion for reconsideration. Defendant received a benefit of that erroneous determination, but she did nothing to take advantage of it. Moreover, defendant had notice of all the proceedings that related to D.M.'s motion and the hearings that followed. Her attorney was present at all these stages. We find no violation of due process in the judge's reentry of judgment terminating her parental rights in these unusual circumstances.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION