Opinion
DOCKET NO. A-1593-14T3
10-29-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.L.J., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.L.J. (Phyllis G. Warren, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-14-14. Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer M. Kurtz, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Diane H. Kim, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.L.J. (Phyllis G. Warren, Designated Counsel, on the brief). PER CURIAM
After the two-day trial in this Title 30 guardianship case brought by the Division of Child Protection and Permanency ("DCPP" or "the Division") concerning the minor S.L.J. ("Sara"), the Family Part terminated the parental rights of defendant S.J. ("the mother") and the child's unidentified father. The mother appeals from that judgment, arguing that the court misapplied the four factors for termination set forth in N.J.S.A. 30:4C-15.1(a)(1) through (4) in various ways.
We use a fictitious name for S.L.J. for ease of reading and to protect her privacy.
Although the briefs and their captions refer to the mother by the initials "S.J.", she actually has the same three initials as her daughter S.L.J., although she has a different first name.
For the reasons that follow, we affirm the trial court's findings as to prongs one and two of the statute, N.J.S.A. 30:4C-15.1(a)(1) and (2), concerning the mother's infliction of harm upon Sara and the risks of future harm. However, we order a limited remand concerning prongs (3) and (4), N.J.S.A. 30:4C-15.1(a)(3) and (4), to enable the record to be developed more as to several relatives identified as potential caretakers of Sara, and the issuance of additional findings.
Sara, who was born in December 2004, is the oldest of the mother's three children. Sara's younger half-sister is in the custody of her father, and her younger half-brother was placed in a resource home. This litigation solely concerns the mother's parental rights as to Sara.
The Division's proofs at trial were not countered with any competing testimony from the mother, as she did not take the witness stand or call any defense witnesses. In essence, the Division's evidence shows that the mother has had recurring serious problems with substance abuse, mental health, and instability. Those chronic problems have rendered the mother incapable of providing consistent and responsible parental care for Sara. Consequently, the Division removed Sara from the mother's care three years ago after learning that the mother had physically abused her on multiple occasions.
Despite the Division's extension of abundant services to the mother, she has failed to take sufficient advantage of those services. As the trial judge found, the mother remains unable or unwilling to eliminate the risks of harm to Sara. That conclusion was pointedly supported by the trial testimony and written report of the Division's unrebutted psychological expert, Dr. Barry A. Katz, who evaluated both the mother and Sara.
According to Dr. Katz, the mother presents indicia that she suffers from "a major depressive disorder, with additional problems in anxiety, paranoi[a] and post-traumatic stress." Dr. Katz opined that the mother continues to present the risk of abusing Sara, in light of: (1) her past abuse of Sara and her other children, and (2) her ongoing self-reported anger issues and her use of violence when stressed. The expert further testified that the mother has an inability to cope when stressed, lacks the ability to connect to a child emotionally, and displays unrealistic expectations about her daughter's behavior. Dr. Katz also found significant the mother's history of noncompliance with services offered to her, although he acknowledged her recent attendance at some of the services.
In the bonding evaluation, Dr. Katz observed a lack of emotion, physical contact, and conversation between S.J. and Sara. As Dr. Katz described the interaction, Sara behaved as "a child who has a distant relative or family friend . . . but [with whom she] has no current relationship with." Dr. Katz also noted that, although the interaction between S.J. and Sara was cordial and friendly, it lacked the emotion and nurturance that should be seen in a parent-child relationship.
Based on his professional observations, Dr. Katz testified that Sara's "best interest" was in gaining a nurturing caretaker in a long-term placement that meets her needs. He did not consider Sara's return to her mother to be a viable solution, predicting that if Sara later had to be removed from her mother once again that would be "catastrophic." Dr. Katz testified that Sara needs permanency "immediately," recommending that she transition out of her current residential treatment program to a therapeutic foster home.
The trial record did show that the mother had made some efforts to take advantage of some of the services offered to her by the Division. Even so, the mother missed many of the supervised visitations that were scheduled with Sara. The mother has struggled with drug dependence and has not been fully compliant with several treatment programs. She declined to attend parenting skills classes recommended to her, claiming that she did not need anyone to teach her how to parent.
As of the time of trial, Sara was in a therapeutic residence for children. The Division's plan was to pursue for Sara what is known as "select home adoption," placing her with a resource family in preparation for an eventual adoption.
The briefs indicate that several months after the trial, Sara was placed with a resource home in the latter part of 2014. Because that resource home was not the subject of testimony at the trial, we do not consider this development in our analysis.
After considering the evidence, the trial judge issued a comprehensive forty-three-page written amended opinion on November 6, 2014, concluding that the Division had proven all four statutory criteria for the termination of parental rights by clear and convincing evidence. The judge specifically found that Dr. Katz was "a highly credible witness," and highlighted in his opinion much of the expert's persuasive testimony. The judge also took note of the physical violence that led to Sara's removal from her mother's residence, and the mother's failure to stabilize herself sufficiently to provide a nurturing and safe home for Sara in the future. As the judge stated:
Although I find that [the mother] expresses affection and concern for [Sara], she has demonstrated an inability to provide a safe and stable home for [Sara] because of her inconsistent and incomplete mental health treatment, failure to recognize the need for parenting skills training, and inconsistent supervised visitation. Given [the mother's] own childhood developmental deficits, severe depression and inability to handle stress without destructive anger, [Sara] continues to be at risk of further physical abuse because of [the mother's] inability and/or unwillingness to remediate the harm. The risk of continued harm is even more acute in this case where the child has significant behavioral issues, and [the mother] is unable to relate to [Sara] on a meaningful emotional level while handling the stress those behaviors create.
Turning to the third prong of the statute, the judge concluded that the Division "ha[d] made many reasonable efforts to provide services to help [the mother] correct the circumstances which led to [Sara's] outside placement[.]" In addition, the judge briefly noted that the Division had "met its obligations to search for and assess relatives, who were offered for placement . . . [but] [u]nfortunately for [Sara], none [of them] are willing or able to provide long term care."
Lastly, the judge concluded under the statute's fourth prong that the termination of the mother's parental rights would not do more harm than good to Sara. The judge rejected all of the mother's counterarguments, including her claim that the Division's plan for select home adoption was unrealistic in light of Sara's behavioral issues and her contention that waiting for such a home would be detrimental to Sara. The judge found that "[t]he uncertainty and potential delay with select home adoption is outweighed by the substantial risk of harm to [Sara] if she were reunified with her mother."
On appeal, the mother contends that the trial court misapplied all four prongs of the statute. The Division and the Law Guardian for the child both argue that the judge's findings were sound and they urge that we sustain them.
It is well established that when seeking the termination of a parent's rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing, by clear and convincing proof, the following criteria:
(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;In applying these criteria, our courts have been mindful — as we are here — that the permanent termination of a parent's relationship with her child implicates fundamental constitutional interests. See, e.g., N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008) (noting the constitutional protection afforded to "[t]he right of a parent to raise a child and maintain a relationship with that child, without undue interference by the [S]tate"); see also In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999).
(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); see also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986) (reciting the four controlling standards later codified in Title 30).]
Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as they are supported by "adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. We also must recognize the considerable expertise of the Family Part, which repeatedly adjudicates cases brought by the Division under Title 9 and Title 30 involving the alleged abuse or neglect of children. See, e.g., N.J. Div. of Youth & Family Servs. v. A.R.G., 361 N.J. Super. 46, 78 (App. Div. 2003), aff'd in part and modified in part, 179 N.J. 264 (2004) and certif. denied, 186 N.J. 603 (2006).
Applying these well-settled standards, we are satisfied that the trial judge's assessment of this case, with one limited exception, is amply supported by the record and consistent with the governing law. The judge's detailed opinion thoroughly explains why the first two criteria of the statute, concerning the past infliction of harm to the child and the parent's inability or unwillingness to eliminate that harm in the future, were clearly established by the Division's proofs.
On the third prong, the judge provided detailed support for his finding within that prong that the Division reasonably offered many services to the mother, but that she failed to take sufficient advantage of them. That said, the present record is inadequate to sustain the finding in the Division's favor on the other portion of the third prong, i.e., whether there has been adequate consideration of "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). More specifically, the present record is insufficient for us to sustain with confidence a conclusion that the Division properly ruled out multiple relatives that had been identified as possible alternative caregivers.
The briefs indicate that, at various times during this matter before trial, several relatives of the mother had been identified for consideration as possible alternative caregivers. These persons included the mother's two brothers, L.J. and R.J., and her half-sister or step-sister Ms. F. The Division contends that it sent letters to the brothers by certified mail. Although the certified letters were unclaimed, the Division contends that duplicate letters sent to them by regular mail were not returned.
The Division's brief acknowledges that "it is unclear from the record whether [R.J.] was considered," although the Law Guardian points out in its own brief that the record contains statements by Sara reporting that R.J. used to hit her with his belt and his hands and that he allowed her to suck on his fingers.
The record is unenlightening as to why L.J. was ruled out, other than the fact that it mentions he failed to resume contact with the Division after having an initial conversation with a caseworker and indicating that he wanted to speak with his wife about the possibility of caring for Sara.
The Division states that the sister, Ms. F., was ruled out "for [an] unknown reason."
The record also shows that the Division considered a step-grandmother, J.K., but ruled her out as a placement because of her lack of financial means and her concern that she might not be able to handle Sara's behaviors. The Division also explored a family friend, M.W., who was living in a small basement studio apartment. The mother's appeal does not appear to advocate either of these persons as alternatives.
In addition, the mother's aunt, D.J., expressed that she was interested in caring for Sara, although she was then living in small quarters. D.J. advised the Division that she would be willing to try to lease a larger apartment to accommodate Sara. However, the Division declined to pursue this possibility with D.J. before the mother's parental rights were terminated, given D.J.'s then-inadequate housing. Instead, the Division deferred consideration of D.J.'s potential role, possibly as an adoptive parent, to some unspecified time in the future after the mother's rights were terminated.
The mother initially advised the Division that she did not want Sara placed with D.J. --------
The mother argues that, at the very least, the Division should have given fair consideration to D.J. for potential Kinship Legal Guardianship ("KLG"), since the Division had not located a resource home for Sara as of the time of trial. Such a KLG arrangement, the mother asserts, might have enabled her to maintain and deepen a relationship with Sara while the child was living in her aunt's household.
N.J.S.A. 30:4C-12.1 obligates the Division to initiate a search for "relatives who may be willing and able to provide the care and support required by the child." See also N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 583 (App. Div. 2011) (explaining that "[w]hile the 'reasonable efforts' required of the Division before termination are efforts to rectify conditions that led to the child's removal . . . assessment 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").
In K.L.W., this court ultimately remanded the trial court's termination of parental rights, because the Division had failed to consider the child's maternal grandparents, who already had custody of the child's other siblings. Id. at 581-83. In reaching that decision, we held that the Division's obligation "does not permit willful blindness and inexplicable delay in assessing" a relative. Id. at 582. See also N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 80-88 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014) (explaining the Division's responsibilities in investigating and ruling out relatives who have been proposed as caretakers).
Although we are cognizant of the practical difficulties that can arise when locating and evaluating alternative potential caregivers, we believe that it is preferable in this case for the matter to be remanded for the limited purpose of developing the record more fully concerning Sara's other relatives, particularly D.J. The Division essentially concedes that the record fails to document why some of them were ruled out. The trial judge also did not specifically address whether it was appropriate for the Division to rule out D.J. when it did, other than noting her reported lack of financial means to move out of her residence at the time she was initially contacted. Although he might not have been asked by counsel to do so, the judge also did not address whether a KLG with D.J. was infeasible or unwise.
Because these open concerns relating to the rule-outs of potential alternative caretakers could affect the ultimate statutory analysis of both prongs three and four, we decline to rule on those prongs until the record is expanded and additional findings are made.
Consequently, we remand this case for this limited purpose. The remand shall be completed within ninety days of our opinion, unless the trial court determines that additional time is reasonably necessary and advises the appellate case manager in writing of the new projected date of completion. In the meantime, the trial court shall have the discretion to continue Sara's recently-arranged resource placement pending the remand hearing. The trial court shall convene a case management conference within fourteen days of this opinion to plan the additional proceedings.
We do not retain jurisdiction. Any party aggrieved by the trial court's ruling on the remand may pursue a new appeal.
Affirmed in part and remanded in part, consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION