Opinion
DOCKET NO. A-5186-13T3
04-14-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.R., Defendant-Appellant, and A.S., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF J.J.S., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant S.R. (Robyn A. Veasey, Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Punam Panchal Alam, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin A. McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-0053-14. Joseph E. Krakora, Public Defender, attorney for appellant S.R. (Robyn A. Veasey, Deputy Public Defender, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Punam Panchal Alam, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin A. McLaughlin, Designated Counsel, on the brief). PER CURIAM
Defendant S.R., the biological mother of J.J.S. (John), born in May 2005, appeals from the June 20, 2014 judgment of guardianship, which terminated her parental rights to the child. On appeal, defendant challenges the trial court's findings on prongs two, three and four of N.J.S.A. 30:4C-15.1(a). We affirm.
This name is fictitious.
The judgment also terminated the parental rights of the child's biological father, A.S., who executed an identified surrender to the paternal grandparents. A.S. does not participate in this appeal.
We derive the following facts from the record. Plaintiff New Jersey Division of Child Protection and Permanency (Division) became involved with defendant in 2011, after receiving several referrals from John's school about marks on the child's face, and his excessive absences, tardiness, and hygiene. Allegations of abuse or neglect were deemed unfounded.
The incident that led to John's removal from defendant occurred at approximately 10:15 p.m. on April 18, 2012. While driving with John in her car, defendant struck a parked car. Fortunately, John, who was not restrained in a booster seat, was not harmed. Defendant failed several sobriety tests at the scene and was transported to the hospital, where she tested positive for cocaine and benzodiazepine. The police released John to his maternal grandmother. Defendant was arrested and charged with driving while intoxicated, driving with a suspended license, and endangering the welfare of a child. Defendant later admitted that prior to the accident, she ingested Xanax that was not prescribed to her; however, she denied ingesting cocaine.
On April 19, 2012, the maternal grandmother left John with maternal great-grandmother. Division caseworkers were conducting an emergency removal of John at the maternal great-grandmother's home when defendant arrived, attempted to flee with the child, and assaulted one of the caseworkers. The police were called, arrested defendant, and charged her with assault. Defendant pled guilty to third-degree aggravated assault and was sentenced to thirty days in the county jail.
The record indicates that defendant was twenty-four years old at the time of the assault and had an extensive juvenile and adult criminal history that included charges of harassment, contempt, disorderly conduct, criminal mischief, resisting arrest, simple assault, and burglary.
The Division obtained custody of John on April 23, 2012, and placed him with his paternal grandparents in May 2012. The child has been with them since that time and they want to adopt him.
The Division initially provided visitation to defendant supervised by the paternal grandparents. The Division terminated the visits because of defendant's sporadic attendance and problems she caused in the paternal grandparents' home. The Division then provided therapeutic visitation through Catholic Charities. The Division terminated those visits as well because defendant frequently failed to attend, or arrived late or left early, which upset John and caused him to develop behavioral issues, for which the Division provided counseling. Since placement with his paternal grandparents, John's behavioral issues subsided and he has thrived socially and academically.
Defendant's psychological and psychiatric evaluations confirmed that she suffers from significant mental health issues. The evaluators recommended that defendant obtain psychological and psychiatric treatment, counseling, and anger management.
Defendant never complied with the evaluators' recommendations. In addition, between August and December 2012, she tested positive for benzodiazepine, cocaine, Oxycodone, marijuana, and barbiturates. She ultimately completed a substance abuse treatment program in April 2013; however, she had a fair prognosis for sustaining recovery and did not comply with aftercare recommendations. She also did not obtain stable housing or financial stability, and often failed to keep the Division apprised of her whereabouts.
At trial, the State's psychological expert opined that defendant has a narcissistic personality disorder that leads her to focus on her own needs to the detriment of others. She has an extensive history of assaultive behaviors, a pattern of violating the rights of others, increased acting out behavior when presented with rules and restrictions, a lack of respect to social norms and standards, and a lack of empathy for others. She also has a significant deficit in parenting attitudes and a significant and pronounced deficit with regard to empathy towards children. She lacks an understanding of and/or devalues a child's normal developmental needs, lacks nurturing skills, is likely to be unable to handle parenting stresses, and displayed no parenting strengths. She also tends to view children in terms of how they meet her needs and perceives them as objects of her gratification.
Defendant did not testify or present expert or fact witnesses or documentary evidence, and she did not appear on the second day of trial, although her counsel participated and protected her interests in her absence.
The expert also opined that defendant failed to meet John's needs on a consistent basis, she viewed him in terms of how he met her needs, and she had inappropriate expectations of him and did not respond to him in terms of the role expected of a responsible and receptive parent. The expert concluded that defendant was unable to parent John now or in the foreseeable future and the child would be placed at increased risk of physical abuse and neglect if returned to her.
The expert found that, during John's bonding evaluation with defendant, the child displayed no emotion or warmth towards her and did not respond to her attempts to express warmth and affection toward him. Although John expressed a desire to return to defendant, the expert noted this was based on the child's desire to play with his old friends and have more time playing video games.
During John's bonding evaluation with his paternal grandparents, he showed a normalized attachment and bonding with them and reciprocated emotionally with them. The expert noted that John has a very strong emotional investment in his paternal grandparents and included them, but not defendant, as part of his family.
The expert concluded that John has formed a bond and attachment to his paternal grandparents, considers them his caretakers, and would suffer emotional harm if removed from them, which defendant could not remediate. The expert noted that although John would suffer some harm from the termination of his relationship with defendant, the grandparents were well-equipped to remediate that harm. Ultimately, the expert recommended the termination of defendant's parental rights to John followed by adoption by the paternal grandparents. Defendant presented no competing expert testimony.
Based on the evidence presented, the trial judge held that the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The judge concluded that defendant failed to address her significant mental health issues that rendered her unable to eliminate the harm she caused to John; failed to comply with the services the Division provided; and is unable to parent John now or in the foreseeable future and termination of defendant's parental rights would not do the child more harm than good.
Defendant does not dispute the judge's finding of prong one, that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1).
On appeal, defendant contends that because she successfully completed substance abuse treatment, attended psychological, psychiatric, and bonding evaluations, and attempted to see a psychiatrist, the Division did not establish she was unwilling or unable to eliminate the harm caused to John. Defendant also argues that the Division did not provide services tailored to her needs and that, because John expressed a desire to return to her, the judge erred in finding that termination of her parental rights would not do more harm than good. We reject each of these contentions.
Our standard of review in parental termination cases is limited. N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). As our Supreme Court stated,
[o]ur task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family. . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that
the record contains substantial and credible evidence to support the decision to terminate parental rights."However, 'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom, the traditional scope of review is expanded.'" R.G., supra, 217 N.J. at 552 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). "'A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
[N.J. Div. of Youth & Family Servs. v F.M., 211 N.J. 420, 448-49 (2012) (citations and internal quotation marks omitted).]
"The focus of a termination-of-parental-rights hearing is the best interests of the child." F.M., supra, 211 N.J. at 447. To justify termination of parental rights, the Division must establish by clear and convincing evidence that:
(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;These "four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)).
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights;[] and
(4) Termination of parental rights will not do more harm than good.
[Id. at 448 (quoting N.J.S.A. 30:4C-15.1(a)).]
In this appeal, defendant does not contend that she provided alternative placement options and the court and Division failed to consider those options.
The first prong of the best interests test requires proof that the alleged harm shown "threatens the child's health and will likely have continuing deleterious effects on the child." In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). "To satisfy this prong, [the Division] does not have to wait 'until a child is actually irreparably impaired by parental inattention or neglect.'" F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)). The test is whether the child's safety, health, or development will be endangered in the future and whether the parent is able or will be able to eliminate the harm. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). Thus, this prong is satisfied by proof that the parent-child relationship caused the child harm, as well as the potential that the parent's actions or inactions could cause harm. See ibid.; In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992).
Evidence that a parent lacks a permanent, safe and stable home can be sufficient to show that the child is endangered by the parent-child relationship. D.M.H., supra, 161 N.J. at 383. Additionally, the failure of a parent to provide the child with "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. Moreover, a parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child]" compounds the harm. Id. at 380. That inaction "constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. at 380-81.
"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "[P]arents must remedy or show they are able to remedy harm to the child in advance of reunification within the time limits established in 42 U.S.C.A. § 671, the federal Safe Families Act of 1977[.]" R.G., supra, 217 N.J. at 557.
The second prong may be satisfied
by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child.
[K.H.O., supra, 161 N.J. at 353.]
Prong two may also be satisfied if "'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" R.G., supra, 217 N.J. at 556 (quoting K.H.O., supra, 161 N.J. at 363). This is especially true when the harm is "'the prolonged inattention to a child's needs, which encourages the development of a stronger, bonding relationship to foster parents,' which if severed could cause the child profound harm." K.H.O., supra, 161 N.J. at 352. Moreover, "[a] delay caused by [the parent]'s failure to assume a responsible parental role in securing permanent placement" for the child is a harm in itself. Id. at 354.
"The third prong of N.J.S.A. 30:4C-15.1(a) requires the Division to make reasonable efforts to provide services to help the parents correct the circumstances that led to the child's placement outside the home." R.G., supra, 217 N.J. at 557 (citing N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third prong
is on the steps taken by [the Division] toward the goal of reunification. The diligence of [the Division's] efforts on behalf of a parent is not measured by whether those efforts were successful. Reasonable efforts may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation. Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship."The reasonableness of the Division's efforts depends on the facts in each case." A.G., supra, 344 N.J. Super. at 435.
[F .M., supra, 211 N.J. at 452 (citations and internal quotation marks omitted).]
The fourth prong requires proof that "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). This prong "'serves as a fail-safe against termination even where the remaining standards have been met.'" R.G., supra, 217 N.J. at 559 (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008)). The focus is on "'whether a child's interest will best be served by completely terminating the child's relationship with [the] parent.'" Ibid. (quoting E.P., supra, 196 N.J. at 108). The court must decide "whether . . . the child will suffer a greater harm from the termination of ties with [his] natural parents than from the permanent disruption of [his] relationship with [his] foster parents." K.H.O., supra, 161 N.J. at 355.
Harm to the child resulting from terminating parental rights is inevitable, therefore the fourth prong "cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's examination is one of comparative harm, requiring the court to consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Therefore, to satisfy the fourth prong, the Division "should offer 'testimony of a well[-]qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship' with the natural parents and the foster parents." R.G., supra, 217 N.J. at 559 (quoting In re Guardianship of J.C., 129 N.J. 1, 19 (1992)). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." F.M., supra, 211 N.J. at 453 (alteration in original) (citations and internal quotation marks omitted).
Here, there is more than ample evidence in the record to support the trial judge's conclusion that the Division established prongs two, three and four of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. As for the second prong, the evidence shows that at the time of trial, John had been living with his paternal grandparents for over two years. During that time, defendant never provided John with any solicitude, nurture, care, or perform any parenting functions or provide support for the child. She sporadically visited John and left all parental functions to the paternal grandparents, with whom the child has formed a significant attachment and bond and that, if terminated, would likely cause him to suffer severe and enduring psychological and emotional harm.
As for the third prong, we are satisfied the Division made reasonable efforts to provide services to defendant. Although defendant attended court-ordered evaluations and substance abuse treatment, she failed to comply with recommendations for mental health and aftercare treatment, obtain stable housing or financial stability, and consistently visit her child, all of which could have facilitated reunification.
The Division also satisfied the fourth prong of N.J.S.A. 30:4C-15.1(a). John has been living with his paternal grandparents since May 2012, he is emotionally attached to them, and he has thrived in their care. There is no evidence whatsoever that John will suffer any harm from the termination of defendant's parental rights. The trial court adequately took into account John's stated preference to live with his mother, but soundly concluded that termination was nevertheless in the child's objective best interest.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION