Opinion
DOCKET NO. A-5457-12T4
04-06-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.E.D., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.O.D. AND N.R.D., minors.
Anastasia P. Winslow, Designated Counsel, argued the cause for appellant T.E.D. (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the brief). Brittany Anne Wilcox, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Wilcox, on the brief). Todd Wilson, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-64-13. Anastasia P. Winslow, Designated Counsel, argued the cause for appellant T.E.D. (Joseph E. Krakora, Public Defender, attorney; Ms. Winslow, on the brief). Brittany Anne Wilcox, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Wilcox, on the brief). Todd Wilson, Designated Counsel, argued the cause for the minors (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). PER CURIAM
Defendant T.E.D. (Tracy) appeals from the June 26, 2013 Family Part judgment of guardianship, which terminated her parental rights to her children, J.O.D. (Jordan) and N.R.D. (Nancy), and approved the Division's plan to have the children adopted by the maternal grandmother, T.L. (Tabitha). Tracy contends that the Division did not demonstrate by clear and convincing evidence the four prongs of the best interests of the child test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supports termination and urges us to affirm the trial judge's determination. Having reviewed the record in light of the contentions of the parties and the applicable law, we affirm.
We use pseudonyms to protect the privacy of the family.
We discern the following facts from the record. Tracy gave birth to two children, Jordan, born in 2003, and Nancy, born in 2010. The family first came to the Division's attention in April 2006 in response to a complaint made by Tabitha, which was ultimately determined to be unsubstantiated. Thereafter, the Division received multiple reports of abuse and neglect allegedly caused by Tracy's alcohol use and mental health problems. Many of the allegations were made by Tabitha, who had a contentious relationship with Tracy and who had previously fought for and obtained custody of the children.
Jordan's father, A.W., died in August 2006. A default was entered against R.C., Nancy's father, who did not participate in this case and whose whereabouts are unknown.
Although the Division found the reports of neglect to be unsubstantiated, it provided numerous services to Tracy and her children, including services from the Substance Abuse Initiative, the Youth Development Clinic, and the Family Service Bureau. Tracy, however, had a history of failing to comply or cooperate with these services, and despite her order to participate, failed to cooperate here as well. As a result of Tracy's present failure to comply, the Division substantiated neglect in May and August of 2011.
On August 23, 2011, the Division removed the children from Tracy's care and filed a complaint for custody based on her alleged noncompliance with services, failure to ensure that the children received the necessary therapy and medical care, and concern that Tracy was continuing to use alcohol. The trial court granted custody to the Division, who placed the children with Tabitha.
Following the removal of the children, the Division again referred Tracy for evaluations, services, and psychological and substance abuse treatment. On January 30, 2012, Tracy underwent a substance abuse evaluation, and it was recommended that she enroll in an outpatient program. Tracy attended the majority of her scheduled visits with the children, parenting group meetings, and therapy treatments. Based on her compliance, the Division permitted Tracy to have unsupervised overnight visitation with the children. During this period, Tracy tested positive for alcohol only once; however, she completed her alcohol abuse program. On July 18, 2012, following a permanency hearing, the trial court approved the Division's plan of reunification of the children with Tracy.
On August 6, 2012, Tabitha reported to the Division that Jordan had been unable to wake up Tracy for several hours in order to care for Nancy. The East Orange police responded and found Tracy hung-over or drunk, and turned the children over to Tabitha. The Division interviewed Tracy who stated that she had taken medication for depression, which sometimes made her sleepy. Tracy denied drinking any alcohol, but admitted that she kept alcohol in the house for her friends. The Division substantiated neglect and terminated her unsupervised visitation.
Following this incident, the Division recommended, and the court approved, a permanency plan to terminate Tracy's parental rights and have Tabitha adopt the children. The court also ordered Tracy to comply with more intense outpatient substance abuse and treatment, and to continue in individual therapy. In January 2013, Tracy's substance abuse treatment program discharged her for noncompliance and testing positive for alcohol on two occasions.
On May 15, 2013, Dr. Eric Kirschner, a psychologist, performed a psychological and comparative bonding evaluation on Tracy. Dr. Kirschner noted that Tracy's mood shifted rapidly during the interview and found Tracy to be evasive on the subject of whether she had an alcohol problem. Dr. Kirschner also administered a number of tests to Tracy, including a personality test, which revealed an elevated score on the Borderline Severe Personality Pathology Scale. Based on this result, Dr. Kirschner opined that Tracy was prone to act in impulsive, unpredictable, and aggressive ways, had a tendency to blame others for any wrongdoing, and viewed other people, including her children, as existing primarily to meet her needs. Dr. Kirschner opined that Tracy "was unable to adequately meet her children's developmental needs" or safely parent them "at this time or for the foreseeable future."
Further, Dr. Kirschner opined that Jordan was a "parentified" child, meaning that he had effectively become the parent in the relationship and that Tracy relied on Jordan to fulfill her emotional, psychological, and physical needs. Dr. Kirschner's bonding evaluations revealed that both children were comfortable and at ease with Tabitha, who appeared to be the more "psychologically stable individual" when compared to Tracy. Dr. Kirschner recommended that the children be adopted by Tabitha, noting that both children would be harmed if reunited with Tracy, particularly as it related to Nancy, who appeared to identify Tabitha as her primary attachment figure.
Judge Stephen Bernstein presided over the guardianship trial over three days in June 2013. At the trial, Dr. Kirschner and LaShondra Drake, the Division caseworker for the family since October 2012, testified for the Division. Tracy did not testify but presented Cheryl Smith, the Division caseworker for the family from 2011 to 2012, as a witness. The trial court also met privately with Jordan.
On June 26, 2013, Judge Bernstein issued a comprehensive oral opinion terminating Tracy's parental rights so that Tabitha could adopt the children. The judge concluded that, under N.J.S.A. 30:4C-15.1(a), the Division had proven its case by clear and convincing evidence.
The judge found that Tracy had endangered the children's safety, health, and development by failing to address "the drug addiction, mental health issues that were the initial cause of the harm, which created the instability[.]" The judge also noted that prong one had been satisfied based on the evidence presented and the testimony of Dr. Kirschner, who the court found to be credible, that the parent-children roles had been reversed such that Jordan had to take care of not only Nancy, but also Tracy. The judge determined that Tracy was unable or unwilling to remedy the harm that prompted the children's removal based on her repeated failure to comply with treatment or services provided by the Division. While the judge acknowledged that Tracy was enrolled in another intensive outpatient substance abuse treatment program, the judge reasoned that such a step was "much too little, much too late" considering the Division's long-standing involvement with the family and the fact that the children have been in the Division's custody for the past two years.
As to prong three, the judge concluded that "the Division had made diligent efforts for years to try to provide services to [Tracy], to the children, and without success." The failure of these efforts, the judge found, rested solely on Tracy's actions and conduct. The judge determined that placement of the children with Tabitha would be in their best interests, noting that Tabitha "has done a wonderful job raising these children." The judge observed that the children are growing up and need the stability that comes with having a permanent placement, and found that for Nancy, Tabitha was "the only caretaker she really knows or remembers."
As to Jordan, the judge noted that Tracy has maintained a relationship with him, but reasoned that "[m]aintaining the relationship is not enough to avoid proceeding with termination of parental rights." The court found that Jordan has a "close relationship" with Tabitha. While the judge acknowledged that there would be some harm to the children as a result of terminating Tracy's parental rights, the judge concluded that such harm "could clearly be mitigated by . . . [Tabitha's] relationship with the children" and the permanent placement of the children with her.
Consequently, Judge Bernstein terminated Tracy's parental rights to both children. He did, however, grant her request for visitation pending appeal. On November 14, 2013, the Division moved to suspend visitation based on Tracy's inappropriate behavior and Jordan's desire to end the visits until Tracy "g[o]t[] her act together and stop[ped] drinking." The trial court suspended visitation but directed the Division to regularly ask Jordan whether he wanted to restart the visits.
The judge also terminated A.W. and R.C.'s parental rights at the same time. R.C. is not involved in this appeal.
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While this appeal was pending, we remanded the case to the trial court for the limited purpose of permitting Tracy to file a motion for relief pursuant to Rule 4:50-1. Tracy filed the motion, which the trial court subsequently denied.
From our independent review of the record we are convinced that clear and convincing evidence exists in the record to support the judge's termination of Tracy's parental rights. We affirm essentially for the reasons expressed in Judge Bernstein's thoughtful and thorough opinion of June 26, 2013. We add only the following comments.
In a guardianship proceeding, we are required to strike a balance between the constitutional right of parents to raise their children and a child's right to be free from serious physical and mental abuse. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279-80 (2007). When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing 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;These factors are not discrete or separate elements, but should be considered together to provide a picture of what is in the best interests of the child. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010); N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
(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 [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.
[Ibid.]
On appeal, our review of the trial court's decision is limited. M.M., supra, 189 N.J. at 278. Ordinarily, we will defer to a trial judge's factual findings unless those findings "went so wide of the mark that a mistake must have been made." Id. at 279 (internal quotation marks and citations omitted). We will not disturb the Family Part's factual findings so long as "they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (citations omitted).
We owe this deference to the trial court because it had "the opportunity to make first-hand credibility judgments" and to gain a "'feel of the case'" over time, thus supporting a level of factual understanding that cannot be gleaned by an appellate court's review of a written record. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting M.M., supra, 189 N.J. at 293). Gauged by those standards, we find no basis to disturb Judge Bernstein's credibility determinations, his factual findings, or his conclusion to terminate Tracy's parental rights.
The first prong of the best interests test under N.J.S.A. 30:4C-15.1(a)(1) requires us to "determine whether the 'child's safety, health or development has been or will continue to be endangered by the parental relationship.'" M.M., supra, 189 N.J. at 281 (quoting N.J.S.A. 30:4C-15.1(a)(1)); see also In re Guardianship of DMH, 161 N.J. 365, 383 (1999). The second prong relates to parental unfitness and requires the court to decide "'whether it is reasonably foreseeable that the parents can cease to inflict harm upon the children entrusted to their care.'" I.S., supra, 202 N.J. at 167 (quoting N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986)). As to the first and second prongs, the evidence is clear and convincing that Tracy's alcohol problem, her uncontrolled mental health problems, and her repeated failure to comply with services harmed Jordan and Nancy and that, at the time of the trial or for the foreseeable future, Tracy was not and would not be able to safely parent her children.
The third prong contemplates that the Division will make reasonable efforts to assist the parent to correct and overcome the circumstances that led to the removal of the child. K.H.O., supra, 161 N.J. at 354. Judge Bernstein found that the Division had provided Tracy with a wide array of services. We agree. For several years, the Division worked intensively with Tracy to stabilize the family and later to promote reunification. Indeed, reunification was the Division's plan until it became clear that even with services, Tracy was unable to handle the responsibility of safely caring for her children. Still, "[t]he diligence of [the Division's] efforts on behalf of a parent is not measured by their success." DMH, supra, 161 N.J. at 393.
Finally, the fourth prong, which addresses whether termination will do more harm than good, focuses on whether "the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. We are in accord with the trial judge that, balancing the slight harm to Jordan and Nancy from the termination of Tracy's parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm. A child cannot wait for a parent to become fit. See 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).
We conclude that Judge Bernstein did not err in determining that the children's best interests required termination of Tracy's parental rights so that they could be adopted by Tabitha.
Tracy also contends that her trial attorney's performance was objectively deficient and deprived her of a fair trial. She claims that her trial counsel performance was lacking because counsel did not allow her to testify because he was worried that she would not do well on cross-examination. She also claims that counsel was deficient by not calling certain other witnesses, not putting certain documents in evidence, including evidence of the custody case between her and Tabitha, and not introducing a favorable psychological evaluation from 2011.
The right to counsel in a termination of parental rights case has constitutional as well as statutory bases. Either way, the performance must be effective. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 306 (2007). In B.R., the court adopted the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) for termination cases. Id. at 308-09. Under Strickland, in order for a defendant to obtain relief based upon ineffective assistance of counsel, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In this context, prejudice requires a showing a reasonable probability that the trial outcome would have been different but for counsel's deficient performance. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In reviewing an ineffective assistance of counsel claim, we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" B.R., supra, 192 N.J. at 307 (citations omitted).
Guided by these principles, we find no merit in the argument that counsel was ineffective. Counsel's decision not to have Tracy testify appears to be sound trial strategy given her demonstrated volatility when challenged and her numerous inconsistencies in what she told case workers and medical professionals over the years concerning her drug and alcohol use. Testimony from relatives that they would have been willing to be placement options, when they were not previously offered as placements, does not demonstrate a deficient performance. Most of the documents Tracy sought to put into evidence were either not relevant or merely corroborative of other documents and testimony already in evidence. The favorable psychological evaluation from 2011 was two years old and so much had changed during that time that the report was likely not particularly probative concerning the best interests of the children in 2013.
Moreover, even if we accept Tracy's argument that trial counsel committed errors in presenting her defense, which we do not, she has not established a reasonable probability that these purported errors would have changed the outcome of the trial. We therefore are persuaded that the alleged deficiencies here failed to meet the performance or prejudice prong of the Strickland test.
Tracy further contends that the court erred in denying her post-termination Rule 4:50-1 motion for relief from the judgment. After a temporary remand, Tracy asked the Family court to reconsider the judgment on the grounds that she had successfully completed several programs, including substance abuse, anger management, and counseling. Tracy also sought to supplement the record with court records of the custody dispute between her and Tabitha from 2006 and 2011. The court denied the motion finding that the records were not newly discovered evidence and that there was nothing in the records or certificates of program completion that would change his decision. The court also found that Tracy had waited too long to complete her services and the children were now firmly bonded to Tabitha. The court stressed that Tracy had not presented psychological expert evidence to rebut Dr. Kirschner's testimony or show that she had truly changed.
Tracy argues that, due to changed circumstances, it was not equitable to continue enforcing the judgment. On the other hand, the Division and the Law Guardian argue that Tracy has not demonstrated that she has changed and the children need permanency and stability now.
"The very purpose of a Rule 4:50 motion is . . . to explain why it would no longer be just to enforce that judgment." In re Guardianship of J.N.H., 172 N.J. 440, 476 (2002). In determining a Rule 4:50-1 motion in a termination of parental rights case, "the primary issue is not whether the movant was vigilant in attempting to vindicate his or her rights or even whether the claim is meritorious, but what effect the grant of the motion would have on the child." Id. at 475. A court's ruling on a Rule 4:50-1 motion "will be left undisturbed unless it represents a clear abuse of discretion." Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994).
Having reviewed the record of the motion, we find that the judge's denial is fully supported and is not arbitrary and capricious. The mere completion of programs without proof of actual change does not advance Tracy's argument. Hence, the judge's determination that reopening the case and further delaying permanency, which the children deserve and need, was not in their best interest will not be disturbed.
We have considered Tracy's additional arguments and find them to be without sufficient merit for discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION