Opinion
DOCKET NO. A-5097-13T1
04-27-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.M.R., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.M.R.-K., K.V.L. and K.V.L., minors.
Adrienne M. Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief). George E. Loeser, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Loeser, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-31-14. Adrienne M. Kalosieh, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Kalosieh, on the brief). George E. Loeser, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Loeser, on the brief). Lisa M. Black, Designated Counsel, argued the cause for minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Black, on the brief). PER CURIAM
We review a challenge to a June 13, 2014 guardianship judgment terminating the parental rights of defendant S.M.R. to her three children, now ages fourteen (Kara), nine (Kate), and six (Kyle). The children's respective fathers previously surrendered their parental rights, allowing the Division of Child Protection and Permanency (the Division) to proceed with securing their adoption. Defendant's oldest child, now seventeen (Kurt), was also removed from her care, but is not included in this matter.
To aid understanding and to protect their privacy, we have assigned pseudonyms to identify the children.
On June 29, 2012, the Department of Children and Families was reorganized and the Division of Youth and Family Services was renamed as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012 (amending N.J.S.A. 9:3A-10(b)).
On appeal, defendant seeks to vacate the judgment. She maintains the trial judge was not an impartial factfinder and contends the conclusion to terminate her parental rights was against the weight of the evidence presented by the Division. The Division and the Law Guardian argue the evidence satisfactorily met the statutory burden of proof and request the judgment of guardianship not be altered.
Following review of the record after consideration of the arguments advanced, we reject defendant's arguments. We conclude the Family Part judge correctly determined the evidence clearly and convincingly proved defendant harmed her children, was unable or unwilling to eliminate that harm despite years of services, and termination of her parental rights would not do more harm than good. Accordingly, we affirm.
I.
It is important to detail the evidence presented by the Division and the Law Guardian during trial. In addition to testimony from Division caseworkers and its expert, the Division introduced over three thousand pages of documents, recording years of intervention and assistance offered to defendant and the children. The Law Guardian presented expert testimony directed to Kara's needs and defendant's parenting, as Kara is a special needs child. Finally, defendant testified on her own behalf and presented a witness who offered to provide assistance were the children returned to their mother's care.
The Division's child welfare concerns originated on March 25, 2004, with a referral from Kurt's school, when the nurse examined a one-inch red line diagonally across his face and neck. Kurt told his teacher "his mother . . . hit him [with a] belt." Defendant admitted she caused the injury, but did not intend to harm the child when disciplining him. Abuse was deemed unsubstantiated.
When Kate was born in 2005, defendant and the baby tested positive for marijuana. Defendant admitted she smoked marijuana during her pregnancy. Neglect was substantiated and services extended. The Title Nine action was ultimately dismissed after defendant agreed to engage in substance abuse treatment.
The Division received new allegations of defendant's excessive corporal punishment and marijuana use in January 2006. Allegations of neglect were substantiated when defendant "admitted [her] mar[i]juana use create[d an environment] injurious to the children's emotional and educational welfare." Several referrals were received and investigated over the next thirteen months, which did not reveal evidence of abuse. The Division continued to monitor the family "to ensure . . . they had access to services."
On February 28, 2008, the Division received a referral from Kara's school therapist. A teacher observed the six-year-old experiencing discomfort while sitting. Kara disclosed "her mother beat her with a belt." A physical examination revealed "a few significant marks on her butt[ocks]" displaying "welts where the skin was removed" and "older marks on her butt[ocks] and lower back." Defendant admitted she used a belt when disciplining both Kurt and Kara "for being 'hard-headed.'" After substantiating physical abuse, the Division executed the emergency removal of Kurt, Kara, and Kate. Defendant was arrested and charged with child abuse.
Following the filing of a second Title Nine action, the Division was again awarded custody, care, and supervision of the children, who were removed. After defendant completed necessary services, the litigation ended with the children's return to defendant's care in June 2008. Defendant was pregnant with Kyle at the time.
Reunification was short lived. In July 2008, Kara was taken to Mercer Medical Center for examination and treatment when she suffered an elbow injury reported to result from defendant striking her with a belt. Defendant could not be contacted and a caseworker took the child to the hospital for treatment. Kara displayed distress, "began to cry," and voiced a desire not to see defendant because she would "be mad at me." Kara "constantly asked if her mother was at the hospital because she didn't want to see her." The medical evaluation confirmed "loop abrasions . . . consistent with [Kara]'s explanation of a belt beating"; a laceration to Kara's elbow and two contusions, one on her buttocks and the other on her shoulder. Despite defendant's denials, physical abuse was substantiated and she was charged with second-degree endangering the welfare of a child and related offenses. The Division removed Kurt, Kara, and Kate and, when awarded custody of the children, placed them with individual resource families. After thirteen months of treatment and services, defendant and the children were again reunited, on August 13, 2009.
From September 2009 to July 2011, the Division received and investigated referrals alleging defendant physically abused her children; no abuse was substantiated. However, on August 14, 2011, Kurt, who was fourteen, contacted the Division. Kurt asserted defendant "[wa]s an alcoholic and drinks alcohol every day" and further claimed she "doesn't always feed them dinner." Defendant admitted she drank "'regularly,'" but "denied . . . drinking to the point of intoxication" or using drugs. However, she declined to submit to a drug evaluation. The home was inspected and found adequate and the children were not removed.
On September 19, 2011, an emergency removal of then eleven-year-old Kara was executed because defendant "refus[ed] to take her to the crisis center . . . after . . . having a su[i]cidal ideation in school due to other children bully[ing] her." According to the Division's contact sheet, Kara "was in the [classroom] with a belt around her neck threatening to kill herself." Defendant was apprised of the situation but withheld consent to allow Kara to be taken to the hospital because she did not feel the child was "going to kill herself," and was "acting 'like a baby.'" Defendant told the school to send Kara home on the bus. The school contacted the Division, which also attempted to secure defendant's permission to allow the child to be transported for evaluation. Defendant refused, grew angry, and began cursing and screaming at the caseworker. The Division took the child for evaluation, which confirmed Kara was not a danger to herself or to others, but needed outpatient services.
An unannounced Division visit on October 17, 2011, revealed Kara and Kate's rooms "had a strong smell of urine"; Kara had "a urine soaked mattress"; Kate's mattress "looked unsuitable for sleeping"; Kurt did not have a bed; and the residence had just been treated for bed bugs and fleas. As a result, the Division filed its third Title Nine complaint.
At the hearing held on October 21, 2011, defendant displayed slurred speech, bloodshot eyes, and the judge noted the odor of alcohol emanating from her body. He found defendant was "drunk," would not return the children, and ordered defendant participate in alcohol treatment and a psychological examination.
Defendant enrolled in an outpatient substance abuse treatment program. Urine screenings tested positive for cocaine, alcohol and marijuana. From the date of enrollment through November 30, 2011, defendant "displayed a guarded and withdrawn attitude towards treatment."
During a psychological evaluation conducted by Alan J. Lee, Psy.D., defendant discussed her substance use, stating she used marijuana and alcohol, but denied use of any other elicit substances. Defendant asserted she abstained from marijuana since October 2011 and stopped drinking in November 2011; however, collateral information, including recent positive urine screenings, contradicted that contention.
Defendant also openly discussed her use of corporal punishment. She admitted to punishing the children by striking them with a belt. She refuted any suggestion this discipline resulted in injury or bruises and maintained, "'they say you could beat a child as long as [you don't] leave a mark.'"
Dr. Lee assessed defendant's parenting, stating she "maintains [a] rather rigid and inflexible style" and "presents with a heightened level of anger and resentment and underlying hostility." He found defendant "engages in patterns of denial and distortion to make herself feel that she is right." He noted she admitted a significant history of substance abuse "using cannabis on a fairly regular basis, often daily, even up to recent months." He determined defendant posed "a very high risk for substance abuse relapse." Further, defendant "reported some openness and acceptance of physical and corporal punishment, and showed a significant elevation on her [Child Abuse Potential Inventory (CAPI)] Abuse Scale score, meaning she shows characteristics similar to known child physical abusers." She had "limited" knowledge of parenting and childrearing. Dr. Lee diagnosed defendant as suffering "fairly chronic . . . depression, apathy, and general unhappiness." He concluded "concerns about her inability to consistently and appropriately meet the needs of her four minor children [would] not currently support[ her] as an independent caregiver of a minor child. . . . Her prognosis remains rather guarded to poor."
Dr. Lee recommended a psychiatric evaluation to consider the benefits of antidepressant medication; an updated, comprehensive substance abuse evaluation; random drug screenings; enrollment in Division-approved parenting education and anger management classes; ongoing individualized counseling; and supervised visitation with her children.
From December 1, 2011 through April 10, 2012, defendant engaged in substance abuse treatment. However, she repeatedly failed drug screenings and tested positive for marijuana, alcohol, or a combination of both. Also, she admitted she self-medicated using Percocet and "associate[d] with alcohol and drug using friends." During this time, her participation in both individual and group therapy was sporadic, missing more than thirty percent of the sessions, directly causing her discharge from the program.
On March 26, 2012, in lieu of a fact-finding hearing, defendant stipulated her "unremediated substance abuse issues . . . put her children at potential risk of harm while in her care . . . and agree[d] that these acts or omissions constitute[d] abuse or neglect," as defined by N.J.S.A. 9:6-8.21(c). Defendant enrolled in "Project Free," an intensive outpatient treatment program. Initially, she passed several consecutive drug screenings, found a sponsor, and "appear[ed] to be more accepting of the life changes that need to be made" to ensure the health, safety and positive development of her children. Defendant graduated from Project Free on January 31, 2013, and agreed to continue outpatient relapse treatment.
On January 9, 2013, Dr. Lee conducted an updated psychological evaluation. He noted "collateral records raised concerns of [defendant's] possible alcohol abuse." Dr. Lee reported defendant abused marijuana during her pregnancies and in 2012 when the Division was actively involved, reflecting signs of defendant's "inability or unwillingness to cease" its use. Further, he found defendant presented "with rather aggressive attitudes, angry and explosive outbursts, and a generally heightened propensity for aggressive acts and attitudes." She continued to display "rather limited knowledge of parenting and childrearing skills," although involved in services. Again, Dr. Lee opined defendant's prognosis remained "poor" and she was not able to be the caregiver for the children, advising "[o]ther permanency planning for the minor children besides reunification with the [birth mother] is recommended."
Dr. Lee also conducted a bonding evaluation between defendant and Kara, Kate, and Kyle. Dr. Lee's clinical opinion was "[t]he [children]'s attachment towards [their] birth mother is ambivalent and insecure" and did "not represent a significant and positive psychological bond." Separate evaluations by Dr. Lee did not change his prior opinion that defendant could not serve as an independent caregiver for the children. He concluded there was "a low risk" of any of the children "suffering severe or enduring psychological or emotional harm" upon severing ties with defendant and suggested alternative permanency planning be pursued.
The Division altered its permanency goal for the children from reunification to termination of defendant's parental rights to secure their adoption. Services for defendant and the children continued. Although defendant appeared to make strides in reaching sobriety in 2013, she relapsed. In October 2013, defendant attended a 9:30 a.m. court hearing smelling of alcohol and, when confronted, admitted she had ingested a beer. Defendant had also been incarcerated and unable to attend treatment for an unknown period of time.
The Division filed this complaint for guardianship on February 28, 2014. A trial was conducted on five non-consecutive dates between May 14, 2014 and June 11, 2014.
The Division presented evidence regarding defendant's past and current use of alcohol as well as her use of corporal punishment. In addition to the submission of voluminous documents, Division caseworkers Jill Mitchell and Shiana Rose Ciaccio testified.
Mitchell testified to confronting defendant about the incident where she attended an October case settlement conference at 9:30 a.m., "smelling of alcohol" and requested defendant submit to an immediate urine screening. Defendant agreed. When Mitchell arrived at defendant's residence to transport her, she observed "about [thirty] empty beer cans on the ground and then some more beer cans hanging from a bag hanging from the fence." Defendant suggested she was collecting the cans for money. However, as defendant entered the car, at approximately 10:30 a.m., she "did smell of alcohol quite strongly." Defendant admitted to "hav[ing] one beer that morning."
Mitchell also testified defendant attended a therapeutic visit with her children on or about October 22, 2013 "smelling of alcohol." When confronted, defendant denied drinking alcohol that day and suggested the odor was hand sanitizer.
Regarding the supervised visits, Mitchell described defendant's interactions with her children as "disengaged" and "indifferent." She also noted defendant rejected a therapist's suggested alternative methods for modifying the children's unacceptable behavior, insisting she could "talk to the children how I see fit."
By February 2014, defendant stopped participating in substance abuse treatment services; she attended only two of eighteen sessions. The Division requested defendant submit to a hair follicle test, to which she agreed to consider, but declined. On the Friday before trial, an unannounced substance screening was sought, but defendant insisted she was unavailable.
Ciaccio addressed concerns regarding defendant's attitude toward corporal punishment. During a March 5, 2014 supervised visit with the children, she recorded defendant's statement to Kurt, after he had jumped on a chair, that she would "pop him" and she "had a belt in her pocket." Ciaccio intervened, telling defendant the comments were inappropriate. Defendant stated she did not mean she would strike the children, but was "just saying it."
The Division also presented expert testimony from Dr. Lee regarding his assessments after performing psychological and bonding evaluations. Over the course of his three evaluations, Dr. Lee found little change in defendant's psychological functioning and ability to cope. He asserted defendant was a high relapse risk for reoccurring substance abuse and continued to demonstrate lack of anger management and a punitive critical parental style. Further, he had "general concerns of [defendant's] inconsistency and instability with consistently meeting adult life demands." He explained:
There have been some emergent concerns of her intellectual functioning and her ability to accurately, consistently understand and grasp material on a deeper, more meaningful level. There have been concerns of a heightened level of anger, and rather critical and often punitive style that [was] found in at least one of the evaluations . . . and the significance of that is that it contributes information as to her endorsing traits and characteristics similar to known child physical abusers.Given defendant's "generally poor prognosis and the consistent findings across the three different evaluations of parenting deficits and problems in her parenting," Dr. Lee concluded defendant could not "be a[n] independent caretaker of a minor child at this time or within the foreseeable future."
Discussing his conclusion following the bonding evaluations, Dr. Lee reaffirmed there was no "significant and positive psychological bond between any of the identified children" and defendant. More specifically, he found Kara lacked a positive psychological bond with defendant and would be at a low risk of enduring harm were parental ties severed. In contrast, Kara had developed a positive psychological bond with her caregiver, such that a separation would cause her enduring psychological harm. Kate and Kyle's bond with defendant was "not significant" and, although their time with their resource parent had been brief, "a favorable and positive relationship and attachment" was developing. The resource parent was found to be able to mitigate any harm from terminating Kate's relationship with defendant. Dr. Lee emphasized both children were "experiencing a sense of consistency, stability, nurturance, and guidance from this current caretaker and . . . stated [their] wish and intent to remain with the current caretaker permanently."
The Law Guardian presented the expert testimony of Maureen R. Santina, Ph.D., who conducted a "Best Interests Psychological Evaluation" of defendant in June 2014. During her evaluation, defendant often appeared "angry and agitated." Defendant's CAPI exam "indicate[d] that she has psychological characteristics and parenting attitudes similar to those of individuals known to be engaged in active physical child abuse." Dr. Santina reported:
[Defendant] presented during this evaluation with deeply entrenched, pervasive dysfunctional personality characteristics. There is considerable convergence of interview, observational[,] and test data to indicate that [defendant] is an individual who is irritable, demanding, intolerant of the needs and views of others, and who lacks capacity for empathy and cooperative relations. She is impulsive and highly emotionally labile[;] prone to rapid, inappropriate[,] and exaggerated anger reactions and aggressive behavior.
[Defendant] shows very little insight into her own psychological problems and displaces responsibility for her personal difficulties and deficits as a parent onto others, her children[,] or the system. She insists that she is justified in using corporal punishment on her children and admitted during the clinical interview that she would continue to use it if the children were returned to her. She maintained that [Kurt] and [Kara] deserved the beatings they received because they did not listen to her, and showed no recognition of the emotional and physical harm that she has done to her children.
[Defendant] minimized her use of alcohol and showed no understanding or acceptance of the deleterious effects of her alcohol abuse on her behavior or her parenting of her children. She stated during this interview that she appeared in
court under the influence of alcohol but dismissed it as insignificant because it was "only beer." She erroneously reported that she has not used alcohol in 2 1/2 years, yet toxicology records indicate that she tested positive for alcohol at least twice in April 2013. She dismissed her participation in [Alcoholics Anonymous] as merely to hear others['] stories and to relieve boredom.
Dr. Santina also conducted a bonding evaluation between defendant and Kara, during which defendant "exhibited poor parenting behaviors and poor control of her anger. She was insensitive to [Kara]'s feelings and walked out on her daughter to pursue her own agenda." Dr. Santina found defendant's dismissiveness of Kara's emotional suffering, suicidal ideation and behavioral difficulties as acting "like a baby" reflected a "lack of empathy and insight into [Kara]'s emotional vulnerabilities and of [defendant]'s propensity for exercising power and control rather than emotionally relating to her daughter." She concluded "[t]his pattern [wa]s emblematic of unremediated abusive tendencies," advising defendant presented
a highly elevated risk for emotional and physical abuse of [Kara] or any child in her care. It is my professional opinion that [defendant] is not currently a safe or effective caregiver for [Kara] and is not likely to become a safe and effective caregiver in the foreseeable future. If [Kara] w[ere] placed in her mother's care, she would be at very high risk for physical and emotional abuse.
Elaborating further, Dr. Santina opined defendant "exhibited very poor parenting skills," "displayed a complete emotional disconnect from her daughter," "was angry and openly hostile towards the examiner, the Division[,] and the evaluation process, causing [Kara] to appear uncomfortable," and "displayed little warmth towards [Kara] or interest in [Kara]'s feelings and experiences." Dr. Santina stated:
[Kara]'s disappointment, frustration[,] and sadness were apparent in response to her mother's demeanor. [Kara] initially appeared happy to see her mother and seemed eager for contact. As the observation progressed, she appeared progressively more frustrated, restless[,] and sad. She asked to end the observation early. [Defendant]'s insensitivity and anger clearly had a deleterious effect on [Kara] emotionally.Conversely, during a bonding evaluation between Kara and her foster mother, Dr. Santina found Kara "exhibit[ed] positive attachment . . . . She derive[d] emotional satisfaction, support[,] and stability from the relationship. The foster mother displayed very good parenting skills, emotional attunement[,] and patience with [Kara]." Dr. Santina concluded:
It is my professional opinion to a reasonable degree of psychological certainty that the interests of [Kara] would best be served by termination of her mother's parental rights, followed by permanency with her foster mother. If [Kara] was returned to her mother, she would likely be subjected to physical and emotional abuse, and would
suffer severe emotional, behavioral[,] and social regression.
Information regarding the children's placements was also presented. Each of the children suffered from behavioral or developmental issues. Kara was diagnosed with Attention Deficit Disorder, Oppositional Defiant Disorder, and a developmental delay. She continued to experience nightmares from prior physical beatings by defendant. Kate and Kyle experienced bed wetting, tantrums and crying episodes before and after visits with defendant. Kyle was diagnosed with developmental delays. Based on his age, Kurt was prepared for independent living. Kara remained with a resource parent who expressed a desire to adopt her, and Kate and Kyle remained with their paternal aunt, who desired to adopt them. The resource parents committed to maintaining the siblings' relationships.
Defendant testified on her behalf. She highlighted the positive actions and interactions she demonstrated during visits with the children. Further, she suggested her mother would aid in her care of the children, insisting she had "always been there for me with all four of my kids," even though they were not currently speaking to one another. Defendant's friend also testified, stating she maintained a relationship with defendant and her children in the past and would continue to offer support were reunification achieved.
At the conclusion of evidence, the judge determined the Division's evidence satisfied the four statutory prongs enumerated in N.J.S.A. 30:4C-15.1(a), and it was in the children's best interests to terminate defendant's parental rights and award guardianship to the Division to secure the adoption of Kara, Kate, and Kyle. The judge found the Division's caseworkers were persuasive and credible, noting Mitchell's "thoroughness and responsiveness of her answers to questions" and recollection of events. Conversely, he rejected defendant's testimony "[b]ased on her demeanor and evasive answers, . . . to be incredulous . . . except that she admits . . . she has a drinking problem." Finally, he found the expert evidence credible and unrefuted.
A final judgment was filed on June 13, 2014. This appeal ensued.
II.
The law recognizes a parent has a constitutionally protected right to enjoy a relationship with and to raise his or her children. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 553 (2014) (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)); see also Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982) (stating parents have a fundamental liberty interest in raising their children). This right is protected by both the federal and the New Jersey constitutions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
However, "the right of parents to be free from governmental intrusion is not absolute." Ibid. If parents act against the interests of and harm their child, the State must intervene, and when necessary seek guardianship in the best interests of the child. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). When a child's biological parents resist the termination of their parental rights, the court holds the authority to determine whether the parents can safely raise the child. Ibid. The analysis engaged by the factfinder requires application of "strict standards to protect the statutory and constitutional rights of the natural parents." Ibid. The "burden falls on the State to demonstrate by clear and convincing evidence that the natural parent[s] ha[ve] not cured the initial cause of harm," and they "will continue to cause serious and lasting harm to the child." Ibid.
"[T]he cornerstone of the inquiry is not whether the biological parents are fit but whether they can cease causing their child harm." Ibid. The Legislature has recognized "the health and safety of the child shall be the State's paramount concern when making a decision on whether . . . it is in the child's best interest to preserve the family unit." N.J.S.A. 30:4C-1(a).
While recognizing the fundamental nature of parental rights, and the need to preserve and strengthen family life, more recently, "'[t]he child's right to a permanent home has gained increasing prominence.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 505 (2004) (quoting In re Adoption of Children by G.P.B., Jr., 161 N.J. 396, 404 (1999)). "The balance between parental rights and the State's interest in the welfare of children is achieved through the best interests of the child standard." K.H.O., supra, 161 N.J. at 347.
Considerations to be examined "are extremely fact sensitive and require particularized evidence that addresses the specific circumstances" present in each case. Id. at 348 (citation and internal quotation marks omitted). Importantly, the Division bears the burden of establishing each prong by clear and convincing evidence. P.P., supra, 180 N.J. at 506.
The scope of our review when examining an order terminating a parent's rights is limited. The factual findings which undergird such a judgment "should not be disturbed unless 'they are so wholly insupportable as to result in a denial of justice,' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Accord Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 475 (1988). The judgment of a trial judge "'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" In re Adoption of a Child by P.F.R., 308 N.J. Super. 250, 255 (App. Div. 1998) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
III.
A.
Defendant urges reversal of the order terminating her parental rights, arguing the trial judge displayed bias towards her, tainting his findings and conclusions. She also argues the evidence was insufficient to support prongs one, two and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We consider these arguments, which we find unavailing.
1.
Defendant cites two instances she believes the judge displayed a negative bias and "disdain," demonstrating he prejudged the evidence in favor of awarding guardianship. Defendant maintains these comments reveal the judge did not remain impartial and a new trial is warranted. We disagree.
The first event regards the judge's remarks after defendant filed a pro se submission regarding visitation, in which she spoke to an unidentified third party, but without consultation with her attorney. The judge stated:
Well, I'm aware that [defendant] filed something handwritten. It might have been unintelligible as to what paper there is that she was looking to file or what the intent was. But, it makes me wonder if taking advice from someone who creates that kind of unintelligible documents is dull-witted and lacking a good judgment, lacking of ordinary keenness of mind[,] or lacking of even ordinary quickness.We find this argument to be meritless. Contrary to defendant's suggestion, the perceived negative comments did not admonish her or reflect the judge's "low opinion" of her, but rather described the third-party "advice" she followed.
That someone who's — who would reject that kind of advice and seeks the experience of skilled counsel like [defense counsel] would be someone who is clever, displays sound thought[,] and good comprehension.
2.
The second instance regards the judge's inquiry of Dr. Lee, who opined defendant was not open to alternatives to physical discipline. This is the cited offending colloquy:
[The Court:] Doctor, I have a question for you.
[Dr. Lee:] Yes.
Q: I was reading . . . your reports . . . . It looks like the report from January of 2013, where you wrote, ["]she avoids taking general responsibility for her life issues and problems, and instead focuses on others to be the source of her problems, and often times crucially demeans others in an effort to make herself feel better about herself.["] Towards the bottom of the page it says, "she is an individual who functions from [moment-to-]moment trying to gratify her needs, wishes, and urges with little concern for the effects that it has on others and in her future.["] In a [previous] report from March 201[1], you wrote, ["]she has also previously presented as being quite hyper-vigilant, domineering, suspicious, and with mood problems.["] And then, later, in the report, you sort of repeat, it says, ["]she continues to be quite angry, hostile, domineering and controlling against others.["] Today, you explained that she has a punitive parenting style and [went] through the details of previous excessive corporal punishment.
By Merriam-Websters.com dictionary, the definition of sadism is, enjoyment that someone gets from being violent or cruel, from causing pain, especially sexual enjoyment. I don't know if she has sexual enjoyment from it. But aside from that, from a lay point[-]of[-]view, it looks to me
like you're saying, in so many words, she's sadistic . . . . I don't know what the [Diagnostic and Statistical Manual of Mental Disorders] says about a diagnosis for it, but before I take the right or wrong conclusion from what — all the things you're saying, in so many words . . . is that what you're saying?
A: Well, I would be cautious to . . . synthesize all of the findings from my report that you read and identified, I would be cautious and reluctant to boil all of that down into a single term such as sadism, because the view of the more clinical notion of sadism calls into play . . . some intent of it for personal pleasure. That the aggressiveness, the infliction of harm, in sadism, [from a] more psychological point[-]of[-]view, inflicting harm gives the person pleasure. I'm not trying to necessarily conclude that [defendant] inflicts harm as a source of pleasure to her . . . .
[W]hat I would describe her as is someone that has inflicted harm, has limited concerns as to the effects of her behaviors, is domineering and controlling. Again, I would be reluctant to boil all of that down into the term sadism, because it's not unexpected that . . . brings with it a number of negative connotations and implications. Not that some of the other characteristics that you described are not problematic, because they are, but I would be reluctant to boil it down into the term sadism.
Q: Because of the clinical definition, or . . . a common lay dictionary definition.
A: More from a clinical perspective, because I think, given my role here, I should stick to a more clinical understanding of what sadism is.
Q: All right. . . .
In rendering his opinion, the trial judge referred to defendant's parenting style as "abusive and sadistic." "If [defendant] enjoys getting high and drunk, physically abuses her children, is dominant, and otherwise apathetic, then that means the things that motivate her, the things she must enjoy, are the cruelty to her children. Again, that appears to be the dictionary definition of sadism."
Defendant argues the judge's independent "introduction of a pejorative and inaccurate diagnosis" attempted to re-characterize Dr. Lee's opinion and reflected a lack of impartiality. We note there was no objection made to the trial judge's question or a request to disregard the line of questioning once presented. Following our review of the entire record, we do not find plain error and disagree with defendant the judge's characterization infected his analysis of the evidence, prejudiced her, or requires a new trial.
Generally, trial judges have broad discretion to question witnesses and "elicit material facts on their own initiative." State v. Medina, 349 N.J. Super. 108, 131 (App. Div.), certif. denied, 174 N.J. 193 (2002). This discretion, however, must be exercised "with great restraint and with an effort to maintain an atmosphere of impartiality . . . ." State v. Cohen, 211 N.J. Super. 544, 553 (App. Div. 1986), certif. denied, 107 N.J. 115 (1987).
The limitations upon the activities and remarks of a trial judge have usually been considered within the frame of reference of a jury trial. However, the necessity of judicial self-restraint is no less important where the judge sits alone; if he participates to an unreasonable degree in the conduct of the trial, even to the point of assuming the role of an advocate, what he does may be just as prejudicial to a defendant's rights as if the case were tried to a jury.Nonetheless, "[w]here a judge remained impartial and asked questions designed to clarify issues and ascertain the truth," his or her decision to intervene should be upheld. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 614 (2014).
[Band's Refuse Removal, Inc. v. Fair Lawn, 62 N.J. Super. 522, 549 (App. Div.), certif. denied, 33 N.J. 387 (1960).]
We do not agree with defendant's contention this inquiry manipulated Dr. Lee's testimony and "tainted" the trial judge's findings, which included characterizing her actions as "fitting the dictionary definition of sadism." The judge's question posed to Dr. Lee attempted to discern whether the label properly fit the described conduct. Dr. Lee clearly advised such a clinical diagnosis did not apply and the judge recognized this fact. He did not find defendant was a sadist. In his opinion, the judge attempted to succinctly describe the physical abuse of the children as what is commonly understood as sadistic. Reviewing the entirety of the trial judge's findings and conclusions, we determine the statement that defendant's conduct was sadistic in the everyday sense of the word was perhaps an inartful characterization of her behavior toward her children, in light of Dr. Lee's testimony, but it did not amount to bias. Importantly, aside from this inept remark, the Division's evidence supports the findings that the statutory best interests test was clearly and convincingly proven.
B.
The "best interests of the child" standard, initially formulated by the Court in A.W., supra, 103 N.J. at 604-11, now codified in N.J.S.A. 30:4C-15.1(a), requires the State establish each of the following standards by clear and convincing evidence before parental rights may be severed:
(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; andThe four criteria are not discreet or separate, but overlap to provide a comprehensive standard to identify a child's best interests. R.G., supra, 217 N.J. at 554; see also K.H.O., supra, 161 N.J. at 348 (stating the statute's four parts "relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests").
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
In challenging the judge's findings regarding the first two prongs, defendant recites evidence of her negative urine screenings and argues her use of alcohol and corporal punishment were remediated such that she posed no harm were the children returned to her care. Defendant also asserts her use of alcohol never resulted in being intoxicated around the children and she has not used corporal punishment as a disciplinary tool for years.
The first two prongs of the best interests test address the harm caused to the children and the defendant's failure to mitigate that harm. "Harm, in this context, involves the endangerment of the child's health and development resulting from the parental relationship." P.P., supra, 180 N.J. at 506 (citation and internal quotation marks omitted). This inquiry does not focus on a single or isolated harm, nor is it limited to physical abuse, as "[s]erious and lasting emotional or psychological harm to [the] child[] as the result of the action or inaction of [his or her] 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). Similarly, "[a] parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting." Ibid.
Moreover, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. Accord 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, which brought New Jersey in conformity with the Federal Adoption and Safe Families Act of 1997 (ASFA), 42 U.S.C.A. §§ 301, 671(a)(16), 675(5)(A)(ii)." 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). These amendments clarify "[t]he emphasis has shifted from protracted efforts for reunification with a birth parent to an expeditious, permanent placement to promote the child's well-being." Ibid. (citing N.J.S.A. 30:4C-11.1). 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).
Here, repeated failed reunifications demonstrate a harm to the emotional stability and well-being of the children. All of the children displayed negative behaviors as a result from the adverse effects of their relationship with defendant. Kara suffered greatly, still experiencing reoccurring nightmares. Even the youngest two displayed anxiety, exhibited tantrums, and wet their bed before and after visits.
From 2005 to 2014, the Division documented defendant's substance abuse and the treatment extended. At times, defendant admitted she drank regularly or had a drinking problem, but repeatedly minimized the resultant effect of her substance abuse. The trial judge in his analysis could not ignore the historic facts showing defendant struggled to participate in and complete programs; however, once the children were returned to her care, she relapsed and reverted to former behaviors, repeatedly requiring the children's removal. Defendant would not recognize she abused alcohol, which clearly affected her conduct. She never achieved long-standing sobriety and was recently shown to begin drinking early in the morning, despite scheduled appointments for court hearings or visitations. Although defendant enrolled in substance abuse treatment programs and sustained several months of negative urine screenings, she readily admitted she consumed alcohol and, in part, maintained this was acceptable. No evidence supports the possibility defendant will resolve her propensity to abuse alcohol and remain abstinent to provide a stable, protective home. See N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996).
Defendant also challenges the finding regarding her use of corporal punishment. She suggests she was punished for "aggressive speech" and never raised her hand toward the children since 2008. This assertion ignores the fact the children were not in her sole care since 2008 and glosses over the myriad of evidence demonstrating she had not altered her past abusive behaviors or attitudes.
"'Excessive corporal punishment' is not defined by statute, but is determined on a case-by-case basis." N.J. Div. of Youth & Family Servs. v. S.H., 439 N.J. Super. 137, 145 (App. Div. 2015) (citing N.J. Div. of Youth & Family Servs. v K.A., 413 N.J. Super. 504, 511 (App. Div. 2010), appeal dismissed as improvidently granted, 208 N.J. 355 (2011)). Use of excessive corporal punishment is child abuse under N.J.S.A. 9:6-8.21(c)(4)(b).
Defendant defended her use of corporal punishment as a proper form of discipline. She did not demonstrate a recognition that her past physical abuse significantly harmed the children, both physically and emotionally. During oral argument before this court, counsel advocated for what was termed the "accepted" method of corporal punishment, suggesting striking children was tolerable so long no marks were left. We repudiate such a specious concept as a suitable guide to avoid excessiveness. The flaw in endorsing this criterion is specifically demonstrated by defendant's own acts: in the name of acceptable corporal punishment, she struck Kurt and Kara with a belt, tearing and scarring their flesh. We, like the trial judge, are not convinced defendant appreciated this level of physical discipline constituted abuse, suggesting the behavior will be repeated.
The suggestion by defendant, reinforced by comments from her attorney during oral argument, that this guidepost — "just don't leave marks" — was frequently imparted to parents who desired to use corporal punishment, as an "accurate standard of acceptable conduct . . . ." We disagree and find this assertion significantly mischaracterizes a comment found in New Jersey Division of Youth and Family Services v. P.W.R., 205 N.J. 17 (2011).
In P.W.R., the Court emphasized Title Nine does not prohibit all physical discipline of children, stating:
[B]y qualifying the prohibition with the term, "excessive," the statutory language plainly recognizes the need for some parental autonomy in the child-rearing dynamic that, of necessity, may involve the need for punishment. Limiting state involvement only to interference with excessive corporal punishment requires the exercise of judgment by reviewing courts before a finding of physical abuse is entered against a parent.
[Id. at 36]
The Court noted: "A slap of the face of a teenager as a form of discipline — with no resulting bruising or marks—does not constitute 'excessive corporal punishment' within the meaning of N.J.S.A. 9:6-8.21(c)(4)(b)." Ibid. The Court's observation was not a standard for physical discipline as now suggested. The court merely recognized the fact-sensitive nature of every review and found the reality of the evidence presented in the matter before it showed the teenage child was not hurt by her mother's occasional slaps. Ibid.
We strongly urge revision of similar instructional advice, in light of the dangers posed by acts of physical discipline, especially those aided by objects such as sticks or belts, which may easily rise to conduct proscribed by N.J.S.A. 9:6-8.21(c)(4).
Further, defendant conveyed she would continue to use physical punishment as a means of altering the children's behavior. Despite enrollment and participation in years of anger management and parenting classes, the implementation of alternative behavior modification strategies eluded defendant.
The uncontroverted expert evaluations also identified problematic potential for abusive behaviors. In the bonding evaluations with Dr. Lee, defendant demonstrated an inability to control her anger. Dr. Santina also observed defendant's "rapid, inappropriate and exaggerated anger reactions and aggressive behavior." Both experts found objective testing revealed defendant had a higher than normal CAPI Abuse Scale score. The most recent evaluation performed on June 4, 2014, described defendant as "present[ing] a highly elevated risk for physical and emotional abuse of . . . any child placed in her care."
Defendant, at times, demonstrated she benefited from the instruction she received and classes she attended, but substantial credible evidence in the record showed conduct that exhibited an unwillingness to reform harmful behaviors. In fact, the experts opined defendant's statements and the testing results reflected likely future abuse, stating when left unchecked, defendant's propensity was to return to using similar physical punishment, in the name of daily discipline, to correct the children's challenging behaviors.
The overall evidence supports prongs one and two were satisfied because defendant was unable to provide a safe and emotionally healthy, nurturing environment for her children's stability and security. We find no error "in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom." S.H., supra, 439 N.J. Super. at 144 (citation and internal quotation marks omitted).
The Division's efforts to resolve defendant's parenting deficiencies and substance abuse issues were well documented. She does not challenge the evidence satisfying prong three.
We also reject as unfounded defendant's challenge to the findings under prong four. She suggests the evidence supports "positive attributes of the relationship between [defendant] and her [children]," which demonstrate the termination of parental rights would do more harm than good.
"Prong four 'serves as a fail-safe against termination even where the remaining standards have been met.'" N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 248 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007)), certif. denied, 205 N.J. 519 (2011). "[C]ourts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 109 (2006). "The 'good' done to a child in such cases in which reunification is improbable is permanent placement with a loving family, which after all is the principal goal of our foster care system." Id. at 108. Accordingly, "[w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good." Ibid.
The trial judge relied on the expert opinions of Drs. Lee and Santina, who opined defendant was not able to independently parent the children and would not be able to do so in the foreseeable future. No evidence challenged these facts. Further, individual bonding evaluations showed the severing of contact between the children and defendant would not cause enduring harm. Dr. Lee, who evaluated defendant's bond with each child, found the parent-child relationship "ambivalent and insecure" resulting in a "low risk of the child[ren] suffering severe or enduring psychological or emotional harm if [the] relationship with the[ir] [birth mother] was permanently ended." Conversely, bonding evaluations with the children's respective resource parents displayed "a sense of consistency, stability, nurturance, and guidance." These facts satisfy prong four.
The factual findings by the trial judge are supported by substantial credible evidence in the record, which clearly and convincingly satisfy the statutory test, and the conclusion that the children's best interests are supported by termination of defendant's parental rights. We discern no basis to reverse the final judgment of guardianship.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION