Opinion
DOCKET NO. A-4612-14T3
05-11-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.H., Defendant, and C.A., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.F.A., DR.S. and DE.S., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine Olexa Saginor, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Paul E. Minnefor, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-133-15. Joseph E. Krakora, Public Defender, attorney for appellant (Christine Olexa Saginor, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Paul E. Minnefor, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief). PER CURIAM
C.A. (Calvin) appeals from the June 2, 2015 judgment of guardianship terminating his parental rights to his daughter Dr.S. (Drew) and son De.S. (Dennis), fraternal twins born April 8, 2014. The children's Law Guardian joins the Division in opposing the appeal.
We use pseudonyms for the parties, for the reader's convenience.
Calvin raises two points for our review:
POINT I
The Trial Judge Erred In Holding That DCPP Satisfied Prong Three of the N.J.S.A. 30:4C-15.1a Test In Regard To C.A. And His Children [Drew] and [Dennis].
POINT II
The Trial Judge Erred In Holding That The Division Satisfied Prong Four Of The N.J.S.A. 30:4C-15.1a Test In Regard To C.A. And His Children [Drew] and [Dennis].
Calvin does not challenge the court's findings that his parental relationship posed a continuing threat to the children's safety, health or development, N.J.S.A. 30:4C-15.1(a)(1), or that he was "unwilling or unable to eliminate the harm, [or] . . . to provide a safe and stable home" and delay in permanent placement would add to the harm, N.J.S.A. 30:4C-15.1(a)(2). Calvin focuses instead on the third and fourth prerequisites for terminating parental rights. N.J.S.A. 30:4C-15.1(a)(3), (4). In doing so, however, he does not contest the termination of his parental rights. Rather, he contends the children should have been placed with his mother, M.A. (Martha), with the goal that she adopt them, instead of the foster parents who have cared for them since shortly after their birth. He also argues the court erred in finding that termination would not do more harm than good, reasoning that the court underestimated Martha's ability to ameliorate harm that would result from removing the children from their foster parents. We reject these arguments, and affirm.
I.
After a two-day trial in May 2015, Judge Francine I. Axelrad issued a comprehensive oral decision that included extensive fact findings. Without reviewing them in detail, we highlight those facts relevant to the points on appeal.
Calvin and S.H. (Sue), the children's mother, have a long history with the Division. In August 2011, the court terminated their rights to an older set of twins born September 1, 2009. See N.J. Div. of Youth & Family Servs. v. C.A., No. A-0785-11, A-0786-11 (App. Div. Jan. 24, 2013). Calvin and Sue have had contacts with the criminal justice system, and Calvin in particular has been incarcerated for significant periods in his children's lives. Calvin's convictions have involved weapons and drugs. Sue also has cognitive limitations and a history of substance abuse.
Sue does not appeal the termination of her parental rights to Drew and Dennis, which was entered by default.
In addition to Drew and Dennis, this case also involved K.F.A. (Kailey), who was born August 3, 2012. Sue's rights to Kailey were terminated by default, and Calvin surrendered his rights to his mother in the midst of trial. However, Kailey's case is important because responsibility for her care affected the Division's evaluation of relative placements for Drew and Dennis.
The Division assumed Kailey's care and supervision shortly after she was born. She was placed with Calvin's sister, C.A. (Carol). During 2013, Sue struggled, and ultimately refused to comply with services. Calvin was incarcerated on new charges of attempted murder in August 2013, and remained incarcerated through the trial in this case in May 2015. Kailey remained with Carol, except for a brief interruption, until August 2014.
The 2012 litigation was terminated in late 2013, after Carol obtained custody under the FD docket. Sue was then granted custody in January 2014 without notice to the Division, but after she threatened to flee with Kailey, the child was removed, and the Division again obtained care and custody later that month.
In the meantime, the Division obtained custody, care and supervision of Drew and Dennis after their birth in April 2014. Both children were born premature, with a range of medical issues. Dennis had an arachnoid cyst behind his right eye, and was transferred to a Philadelphia hospital for specialized care. Drew had a small hole in her heart. Both children also experienced developmental delays.
Sue initially identified Calvin as the father, but later recanted and objected to the twins' placement with his family. At the end of April, the children were released from their respective hospitals to a resource home qualified to manage their multi-faceted needs, which included bringing them to numerous appointments with various specialists.
The court ordered a paternity test of Calvin shortly after the twins' birth. Due to delays in completing the test while he was incarcerated, however, the Division did not confirm he was the father until August 15, 2014. Although Martha had expressed an interest in caring for the twins in April and May 2014, the Division awaited confirmation of Calvin's paternity before considering Martha for placement. However, a week after confirmation, Carol tested positive for PCP, which prompted the Division to remove Kailey and Carol's own two children and place them with Martha. The Division then viewed Martha as unable to care for the twins, as she was already caring for three children. According to the Division's caseworker, Martha did not renew her request to care for or visit the twins at that time, nor did she inquire as to their well-being.
Kailey remained in Martha's custody after Carol's two children were returned to her in January 2015. At that point, Martha renewed her request to care for the twins. Martha was encouraged to contact the foster parents to arrange for visitation and to attend medical appointments. According to the caseworker, Martha participated in two visits and attended one medical appointment before trial.
In August 2014, the court excused the Division from reasonable efforts to reunify the twins with Calvin or Sue. The following month, the court approved the Division's permanency plan of termination of Sue's and Calvin's parental rights to the twins, followed by resource parent adoption. The plan for Kailey was also termination, followed by Martha's adoption. The Division filed a guardianship complaint in November 2014.
Prior to trial, Linda Jeffrey, Ph.D., conducted psychological evaluations of Calvin and Martha, and bonding evaluations of the twins with Martha and with the foster parents. Dr. Jeffrey testified that the children were securely bonded with the foster parents, who demonstrated remarkable parenting skills. She opined that severing the twins' attachment would likely cause them serious and enduring harm.
Given the issues on appeal, we need not address in detail her evaluation of Calvin, except to note that she opined he suffered from adjustment and personality disorders; had narcissistic tendencies; lacked insight; and lacked the capacity to serve as a minimally safe parent to the twins, with whom he had no contact. --------
By contrast, Dr. Jeffrey found no attachment between Martha and the twins, who related to her as a stranger. Although Martha had worked as a home health aide for many years, Dr. Jeffrey opined that Martha lacked both an adequate understanding of the twins' special needs, and the organizational skills to address them. Dr. Jeffrey also opined that Martha had cognitive limitations and clinical levels of paranoid ideation. Dr. Jeffrey noted that Martha suffered from arthritis and high blood pressure. Although Martha could safely parent Kailey, who was securely bonded to her, Dr. Jeffrey opined that Martha could not safely parent the twins, especially while also caring for Kailey.
The Division's health care case manager, who was a licensed nurse, testified about the high level of care the twins required. Specifically, she testified that their caregiver must coordinate medical appointments, understand and discuss medical issues with doctors, confer with insurance companies about referrals, and get the twins to doctor appointments.
Martha testified that she was capable of caring for the twins, stressing her lengthy experience as a home health aide, which included caring for children, as well as her experience raising her own and other relatives' children. She anticipated that her extended family would help care for the twins, particularly when she was at work, which was usually between 3:00 and 11:00 p.m.
Martha testified about her efforts to obtain custody of the twins. She stated that she had expressed an interest in caring for the twins in April 2014, but was told she would have to await the paternity test. When informed of the result in August 2014, she had already accepted placement of Kailey and Carol's two children, and was then told she could not be considered as a placement for the twins until Carol's children were returned. She testified that, had she known the Division would take this position, she would have secured another family member to care for Kailey and Carol's children. Martha again sought placement of the twins after Carol's children were returned to her in January 2015.
Martha also testified that she requested visits with the twins at each of the Division's monthly visits to her home. She also asserted that she reached out to the foster parents a couple of times during the fall of 2014 to arrange visits, but the foster parents did not respond. Confronted with a Division record indicating that she told the Division in September 2014 she was "okay" with the resource parents adopting the twins, Martha testified she was "not sure" whether she made that statement. She testified that she wished to adopt Kailey and the twins, because adoption would preclude Sue from reentering the children's lives. Before Martha completed her testimony, Calvin executed the identified surrender of Kailey.
Carol testified that she would help Martha care for the twins while she was at work, but acknowledged that she herself worked between 5:30 a.m. and 1:30 p.m. Carol also acknowledged that in February 2015 the court found that she was in need of services after testing positive for PCP.
At the conclusion of trial, the court analyzed the four-prong best interests standard in N.J.S.A. 30:4C-15.1(a), and found the Division proved by clear and convincing evidence all four:
(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).]
Judge Axelrad noted that defendant was only challenging the Division's proofs as to the third and fourth prongs. Regarding the third prong, the judge found the Division met the "reasonable efforts" requirement and focused her analysis on the consideration of alternatives, particularly the option of placing the twins with Martha. The judge accepted the Division's decision to await the paternity test result before considering placement with Martha or another family member. Moreover, the judge found that shortly after the results were received, Martha assumed care of Kailey and Carol's children, and was unable to also care for the twins. The judge noted that no other family member proposed to care for Kailey or the twins at this time.
In finding that adoption by the foster parents as opposed to Martha would serve the twins' best interests, the judge adopted Dr. Jeffrey's conclusions after reviewing them at length. Relying on Dr. Jeffrey's bonding evaluations, the judge found that severing the twins' secure bond with the foster parents would cause lasting harm, and that Martha could not mitigate that harm, particularly since the twins had no bond with her. The judge also adopted Dr. Jeffrey's findings that Martha's behavioral issues and physical and cognitive limitations made her unable to manage the twins' complicated needs.
The judge supplemented Dr. Jeffrey's findings with her own observations of Martha based on Martha's testimony. The judge noted that Martha was slow to respond, became confused easily, and spoke in generalities. The judge found that Martha underestimated the difficulty of caring for the twins and overstated her ability to take time off from work to care for the twins. The judge was unpersuaded by Martha's claim that family members would contribute to the twins' care, noting that those family members failed to assist when Martha had to attend the bonding evaluation, requiring her to bring one of her other grandchildren to the evaluation. The judge reiterated that no family members volunteered to assist in caring for the twins after Kailey and Carol's children were placed with Martha in August 2014.
In analyzing the third prong, the judge distinguished New Jersey Div. of Youth & Family Services v. K.L.W., 419 N.J. Super. 568 (App. Div. 2011), and New Jersey Div. of Youth & Family Services v. M.F., 357 N.J. Super. 515 (App. Div. 2003), which addressed the Division's obligation to consider relative placement. The judge found that neither case compelled placement with Martha, noting that, unlike this case, the child in M.F. had a pre-existing bond with the relative, 357 N.J. Super. at 529, and the relative in K.L.W. was able to mitigate the harm the child might suffer after being removed from the foster mother, 419 N.J. Super. at 583.
In sum, the judge found that the Division proved by clear and convincing evidence that it
explored alternatives to termination of parental rights, and did explore placement with the relatives, but . . . appropriately determined, that it was in the children's best interest to remain . . . with their psychological parents . . . in the pre-adoptive home, and that the Division fulfilled its obligation, under N.J.S.A. 30:4C-12.1 to explore placement with relatives.
Judge Axelrad also held the Division met the fourth prong, finding that the twins could not be returned to Calvin "now or in the near future without endangering their health and safety"; they had formed a "secure, primary bond" with the foster parents; and the children would suffer "significant enduring harm" if the bond were severed, because of their "secure relationship and bond with the foster family, the need for permanency, and their special needs." Therefore, the court found termination of parental rights would not do more harm than good.
II.
Our scope of review of the trial court's order is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We defer to the trial judge's factual findings rooted in her familiarity with the case, opportunity to make credibility judgments based on live testimony, and expertise in family and child welfare matters. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 105 (2008); Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). We are mindful that "[t]he considerations involved in determinations of parental fitness are extremely fact sensitive and require particularized evidence that address the specific circumstances in the given case." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999) (internal quotation marks and citation omitted). We will affirm the Family Part's decision to terminate parental rights when substantial, credible evidence in the record supports the court's findings. E.P., supra, 196 N.J. at 104. However, we are not bound by the trial court's legal conclusions. N.J. Div. of Youth and Family Servs. v. I.S., 202 N.J. 145, 183 (2010) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
Applying this standard, and based on our thorough review of the record and applicable law, we affirm substantially for the reasons set forth in Judge Axelrad's comprehensive oral opinion. Her findings were adequately supported by the evidence.
We write briefly to address Calvin's argument that the court failed to consider alternatives to termination of parental rights, N.J.S.A. 30:4C-15.1(a)(3), as it did not properly consider placing the twins with Martha. He contends the Division failed to meet its responsibility, under N.J.S.A. 30:4C-12.1, to explore placing the twins with a relative. He argues the Division, either by design or through negligence, precluded a meaningful opportunity for relative placement by taking too long to confirm Calvin's paternity and failing to arrange visitation between Martha and the twins.
However, Calvin does not offer placement with Martha as an alternative to termination of parental rights; he offers it as an adjunct to termination. He essentially concedes termination of his rights, as he presents no argument that he would ever be prepared to serve as a father to his twins. Consequently, he misses the mark in contending the Division failed to establish the requirement that "the court has considered alternatives to termination of parental rights . . . ." N.J.S.A. 30:4C-15.1(a)(3).
We recognize that when the Division accepts a child into its care or custody, it must "initiate a search for relatives who may be willing and able to provide the care and support required by the child." N.J.S.A. 30:4C-12.1(a). We have also acknowledged "the Division's policy to place children with relatives whenever possible." M.F., supra, 357 N.J. Super. at 527. Yet, "there is no presumption in favor of placement with relatives." K.L.W., supra, 419 N.J. Super. at 580. The court ultimately must determine whether placement with the relative serves the child's best interests. Id. at 581; M.F., supra, 357 N.J. Super. at 528. "The reality is that, no matter how fit or willing a proposed relative may be, a child will, in some instances, be better off remaining in a successful foster placement." N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 85 (App. Div. 2013).
We have viewed the Division's obligations under N.J.S.A. 30:4C-12.1 as an additional aspect of the four-prong "best interests" test in N.J.S.A. 30:4C-15.1(a). Ibid. The Division's evaluation of a relative placement will factor into a court's consideration of alternatives to termination of parental rights. Id. at 85, 87. "[A]ssessment of relatives is part of the Division's obligation to consult and cooperate with the parent in developing a plan for appropriate services that reinforce the family structure." K.L.W., supra, 419 N.J. Super. at 583 (citing N.J.S.A. 30:4C-15.1(c)(1)).
If the Division "fails to comply with its obligation [under N.J.S.A. 30:4C-12.1], the judicial determinations that follow are made without information relevant to the best interests of the child." Id. at 581. However, even when the Division fails to comply with that obligation, "[d]elay of permanency or reversal of termination . . . is warranted only when it is in the best interests of the child." Ibid.
We are unpersuaded that the Division failed to fulfill its obligations under N.J.S.A. 30:4C-12.1. Within days of being granted care and custody of the twins, the Division considered relative placements on the maternal side of the family. Until August 2014, it was unclear whether Martha was even a relative. Carol and Martha were the only viable relatives on the father's side; however, once Carol tested positive for PCP in late August, only Martha was in a position to care for Kailey and Carol's children. This predicament was not the Division's doing.
However, even if the Division could have acted more swiftly — and we acknowledge that the delays were significant — the ultimate determination is the best interests of the twins. Unlike in K.L.W., potential relative placement with Martha was extensively reviewed. Given Dr. Jeffrey's two evaluations of Martha, the court did not lack "information relevant to the best interests of the child." K.L.W., supra, 419 N.J. Super. at 581. The court considered the extensive information presented by the Division and concluded that placement with the foster parents served the twins' best interests. There was substantial, credible evidence in the record to support that finding.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION