Opinion
DOCKET NO. A-3287-14T2
02-18-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. V.C.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF L.T.S.T., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany Anne Wilcox, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-115-13. Joseph E. Krakora, Public Defender, attorney for appellant (Christine B. Mowry, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Brittany Anne Wilcox, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant V.C.T. appeals from a February 27, 2015 judgment terminating her parental rights and granting the Division of Child Protection and Permanency (the Division) guardianship of her now thirteen-year-old child, L.T., to allow her adoption. On appeal, defendant maintains the Division's proofs did not meet its statutory burden to terminate parental rights and the trial judge erred in taking judicial notice of orders in related litigation. We are unpersuaded and affirm.
L.T.'s biological father was never identified. The Division was relieved of its obligation to locate L.T.'s biological father. N.J.S.A. 30:4C-17(c).
Defendant raised L.T. for seven years prior to the Division's intervention. In 2010, it was learned defendant abused illicit substances and alcohol, although she insisted her conduct did not adversely affect L.T.'s care. The Division monitored the family and extended services to assure L.T.'s safety. Six months later, a referral from L.T.'s school informed the Division the child was purposely biting her tongue. L.T. revealed her mother and her paramour engaged in domestic violence and smoked marijuana in front of her. Despite defendant's attempts to thwart its investigatory efforts, the Division obtained a June 23, 2010 order allowing its intervention and mandating defendant attend psychological and substance abuse evaluations. The Division substantiated defendant's conduct as neglect and initiated protective services litigation. L.T. was not removed from defendant's care.
The Division's efforts to stabilize the family and remediate defendant's substance abuse were unsuccessful because defendant remained uncooperative. Services were extended and appointments scheduled; however, defendant failed to initiate drug treatment following her intake evaluation. Ultimately the case was closed when the Division concluded L.T. was not at risk, despite defendant's lack of compliance and willingness to accept services.
In October 2011, defendant left L.T. with her godmother, L.H., and did not return for several weeks. L.H. called the Division and explained defendant left no: provisions for the child's schooling or medical care; money to purchase food or satisfy the child's other needs; or an expected return date. The Division contacted defendant, who admitted she had taken L.T. to her uncle's Pennsylvania home before leaving her with L.H. During much of this period, the child was not in school. Following a fact finding hearing on January 20, 2012, the judge found defendant neglected L.T.
When the Division obtained an order for L.T.'s custody, care, and supervision, the child was placed in a resource home. Later, L.T. was temporarily in the care of a relative, S.Y., defendant's cousin. Other caregivers were notified and evaluated in an effort to find a safe, permanent home for the child. On August 20, 2012, L.T. was placed with defendant's aunt, Q.B., who expressed a willingness to care for and adopt the child. At the time of the guardianship trial, L.T. was residing with Q.B.
The Division's reunification efforts were ineffective. Defendant did not visit with L.T. in December 2011 and only attended one visit in January 2012. Defendant was continuously contacted for visitation and services, including parenting classes, psychological evaluations, and substance abuse treatment options, but she remained uninterested or noncompliant. Defendant remained unemployed and her housing was inadequate to care for L.T. In February 2012, defendant was charged with grand larceny and burglary, and, as a result, she was arrested and incarcerated. Visits commenced in early May 2012, upon defendant's release from custody. Thereafter, defendant resumed visits with L.T. in June 2012, July 2012, August 2012, September 2012, and October 2012.
Defendant finally completed a psychological assessment, conducted by Dr. John S. LoConte, Ph.D., on August 14, 2012. Dr. LoConte opined defendant was not "psychologically able to independently care for her daughter at the time of the evaluation" and recommended reunification not be considered until defendant had six months of "problem-based psychotherapy," a substance abuse evaluation with random monitoring, a bonding evaluation, and a psychiatric evaluation. A subsequent psychiatric evaluation by Sonia Oquendo, M.D., also concluded the prognosis for reunification with defendant was poor. Defendant rejected the doctor's recommendations for therapy.
Defendant's drug abuse during these proceedings persisted. On October 9, 2012, she nearly died of a PCP overdose. On October 19, 2012, defendant pleaded guilty to forgery and theft by deception, for which she was sentenced to a four-year non-custodial probationary term. She was again scheduled to begin drug treatment on December 3, 2012, however, she did not appear until December 6 and tested positive for PCP. The next week, she called the rehabilitation program and expressed suicidal ideations resulting in a crisis unit being sent to her home. Defendant was admitted into the county's Drug Court program sometime in March 2014.
On February 14, 2013, the Division filed a complaint for guardianship and dismissed the protective services litigation. At that time, defendant was not engaged in any services offered by the Division, except for attending weekly visitations when she was not incarcerated.
The two-day guardianship trial commenced on January 30, 2015. The Division presented two witness: Mark Singer, Ed.D., who conducted psychological and bonding evaluations, and case worker Angel Brown. Additionally, various documentary evidence was admitted. Defendant testified on her own behalf, explaining since her admission into Drug Court, she completed inpatient drug rehabilitation treatment, attends counseling, completed parenting skills and domestic violence programs, and is medication compliant. Further, defendant had obtained employment and was living with a relative.
At the close of evidence, the judge issued an oral opinion. Crediting Dr. Singer's unrefuted testimony, the judge concluded the Division met its burden and presented clear and convincing evidence to support each prong of the statutory test proving termination of parental rights was in the best interests of L.T. The judgment provided procedures to effectuate L.T.'s adoption by Q.B. Currently, the status of the adoption is unclear, as L.T. was placed for in-patient psychiatric treatment at Trinitas Hospital, with a plan to move the child to Willow Glenn, a residential facility.
The law guiding our review is well-established. Both the federal and state constitutions protect the inviolability of the family unit. See Stanley v. Ill., 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13, 31 L. Ed. 2d 551, 558-59 (1972). Parental rights, while constitutionally protected, are not absolute. In re Guardianship of K.H.O., 161 N.J. 337, 346-47 (1999). "The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions." Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 2504, 61 L. Ed. 2d 101, 118 (1979). However, "experience and reality may rebut what the law accepts as a starting point . . . ." Id. at 602, 99 S. Ct. at 2504, 61 L. Ed. 2d at 119. Some parents may act against the interests of their children, and the right of parents to be free from governmental intrusion must yield when parents have forsaken their parental duties and the best interests of their children require they be afforded a stable, permanent home. In re Guardianship of P.P., 180 N.J. 4 94, 505-06 (2004).
The Legislature has recognized the balance in its dual role of preserving families and assuring the welfare of children free of emotional and physical harm. Accordingly, "the health and safety of the child shall be the State's paramount concern when making a decision on whether or not it is in the child's best interest to preserve the family unit[.]" N.J.S.A. 30:4C-1(a). When a "child's biological parents resist the termination of parental rights," it is the court's function "to decide whether the parents can raise their children . . . ." In re Guardianship of J.C., 129 N.J. 1, 10 (1992). The cornerstone of this inquiry is whether parents "can cease causing their child harm[,]" and become fit to assume the parental role within time to meet the child's needs. Ibid. "The analysis . . . entails strict standards to protect the statutory and constitutional rights of the natural parents." Ibid.
When the Division seeks guardianship and termination of parental rights, a trial court's examination focuses on what course serves the "best interests of the child." K.H.O., supra, 161 N.J. at 343. The State bears the burden of proving each element of the "best interests of the child" test, codified at N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence before parental rights can be terminated. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 612 (1986) ("The correct standard is 'clear and convincing' proof."). The four-prong test requires the Division to establish:
(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;The four criteria "'are not discreet and separate, but'" overlap to establish a comprehensive standard identifying a child's best interests. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 167 (2010) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606-07 (2007)). The considerations involved are especially "fact sensitive and require particularized evidence" addressing the specific circumstances present in each case. K.H.O., supra, 161 N.J. at 348 (quoting A.W., supra, 103 N.J. at 139).
(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
[N.J.S.A. 30:4C-15.1(a).]
On appeal, defendant challenges the sufficiency of the evidence supporting prongs one, two, and four. In our limited review of the trial judge's findings and conclusion to terminate parental rights, N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007), factual findings which undergird the 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)). If an appellant challenges the trial judge's evaluation of the underlying facts and the implications drawn from those facts, the "traditional scope of review is expanded." M.M., supra, 189 N.J. at 279. (quoting J.T., supra, 269 N.J. Super. 172 at 189). See also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting J.T., supra, 269 N.J. Super. at 188-89). ("There is an exception to that general rule of deference: Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review.") "Despite such circumstances, deference will still be accorded the trial judge's findings unless it is determined that they went so wide of the mark that the judge was clearly mistaken." G.L., supra, 191 N.J. at 605. However, this court accords no special deference to the "trial court's interpretation of the law and the legal consequences that flow from established facts[,]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which this court reviews de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Defendant maintains no evidence showed she harmed L.T. or that the child suffered "deleterious effects from the parental relationship." We disagree.
Both the first and second prong of the best interests test address the harm caused to children by parental conduct and the parent's failure to mitigate that harm, focusing on the impact of the harm caused by the parent-child relationship on the child over time. N.J.S.A. 30:4C-15.1(a)(1)-(2). The prongs "are related to one another, and evidence that supports one informs and may support the other as part of the comprehensive basis for determining the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999). Termination of parental rights may be supported by evidence "that the parent substantially caused, directly or indirectly, the harm to the child." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 81 (App. Div. 2010). The harm facing the child "need not be physical" 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). Moreover, courts do not need to wait until the child is irreparably harmed before concluding these prongs are satisfied. D.M.H., supra, 161 N.J. at 383. For instance, the failure of a parent to provide a "permanent, safe, and stable home" engenders significant harm to a child. Ibid. See also M.M., supra, 189 N.J. at 270, 293 (upholding the trial court's termination of a father's parental rights where his wife, who had the intellectual functioning of a seven-year-old, created a dangerous and destabilizing environment); N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 450-51 (2012) (finding the Division satisfied prong one where the mother's "commitment to and dependency on" the child's dangerous father "overwhelmed her willingness or capacity to protect her child"). 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." D.M.H., supra, 161 N.J. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). This constitutes a "failure to provide even minimal parenting . . . ." Ibid.
Importantly, New Jersey has a "strong public policy in favor of permanency." K.H.O., supra, 161 N.J. at 357. See also 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 to 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 young helpless children who need extensive care and nurturing. D.M.H., supra, 161 N.J. at 379 (quoting A.W., supra, 103 N.J. at 613).
In this matter, from the Division's initial interaction in 2009 until her 2014 Drug Court admission, defendant continually and consistently abused illicit drugs. The judge's findings included that while under the influence, defendant ignored services directed toward achieving abstinence, left her child in the care of others without providing for her needs, removed the child from school for months, engaged in criminal behavior, and never considered her drug addiction's impact, all of which prevented this child from ever attaining "a permanent, safe, and stable home." D.M.H., supra, 161 N.J. at 383. See also In re Adoption of Children by L.A.S., 134 N.J. 127, 136 (1993) ("Incarceration is . . . probative of whether the parent is incapable of properly caring for . . . or has abandoned the child.").
More specifically, the judge focused on the lack of stability L.T. faced finding she was passed around "like a rag doll" during the four years the matter was pending, which directly harmed her. See N.J. Div. of Youth and Family Servs. v. B.G.S., 291 N.J. Super. 582, 592 (App. Div. 1996) (holding the second prong of the best interests test may be satisfied by a demonstrated inability or unwillingness to resolve substance abuse issues); see also K.H.O., 161 N.J. at 353 (stating "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" satisfy the second prong).
Although substance free at the time of trial, defendant's inability to parent the child remained and she could not project when she could become a viable parenting option for L.T. The trial judge weighed defendant's new found sobriety using the prism of her chronic addiction, as well as assessing Dr. Singer's opinion, prognosis for defendant's recovery was poor in light of her significant substance abuse history. He noted defendant's efforts were in part achieved through the strictures of Drug Court, special probation, and motivated by the threat of returning to prison. That is, she did not independently decide to commence rehabilitation based on a desire to care for her child. The judge found defendant's one-month continued abstinence and sobriety following release from Drug Court was insufficient to overcome the years of instability, addiction, incarceration, unemployment, and a demonstrated conduct that "she has never placed this child as number one ahead of her own needs."
We find no flaw with the judge's findings supported by the evidence in the record, which clearly and convincingly showed defendant's continued compliance with sobriety following release from strict probation was tenuous and unpredictable. See N.J. Div. of Youth and Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002) (holding consideration of the risk of future harm is appropriate when weighing the evidence submitted to satisfy the statute).
Finally, defendant's prolonged inability to provide a home was found to have allowed L.T. to develop a bond with Q.B., whom Dr. Singer opined the child viewed as her psychological parent. ("[H]arms attributable to a biological parent include the prolonged inattention to a child's needs, which encourages the development of a stronger, 'bonding relationship' to foster parents, 'the severing of which would cause profound harm . . . .'"). B.G.S., supra, 291 N.J. Super. at 592 (quoting J.C., supra, 129 N.J. at 18). Dr. Singer advised, severing the bond with Q.B. would cause L.T. "significant and long-term" harm.
We reject as unfounded defendant's argument suggesting L.T. was not shown to have been harmed by her actions and omissions or that inappropriate weight was placed on the expert's opinion. Defendant's decision to resolve her addiction is laudable, but it cannot stand alone or erase the past events, which were properly considered. These facts do not strip the effect of the clear and convincing evidence of her conduct and its ramifications over the prior four years. We find no basis to disturb the findings and conclusions of the judge regarding these two prongs.
Challenging the judge's factual findings underpinning the Division's satisfaction of the fourth prong, defendant argues the judge relied too heavily upon Dr. Singer's testimony and did not consider the facts supporting her relationship with L.T. Also, she maintains the expert's opinion that L.T. would suffer "both significant and long-term harm," were she separated from Q.B., fails to meet the required "serious and enduring emotional or psychological harm" required by the statute. We conclude these arguments lack merit and are rejected.
The fourth prong assesses whether termination of parental rights "will not do more harm than good" to the child. N.J.S.A. 30:4C-15.1(a)(4). It "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. The question to be addressed "is whether, after considering and balancing the two relationships, 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. "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008).
Here, the judge acknowledged the bond between defendant and L.T., specifically finding "clearly [defendant] loves her daughter, and I'm sure the child loves her mother . . . But unfortunately this child needs permanency" and the evidence is "clear" defendant "is just not capable of parenting[,] which she admits. Now or in the foreseeable future."
Also, Dr. Singer's uncontroverted opinion stated L.T.'s best interests requires her "unhealthy" relationship with defendant be severed. He further testified Q.B. would be able to properly address any harm L.T. would experience after severance of her ties with her mother. Q.B., who was committed to adoption, would also be able to provide L.T. with the stability and permanency she needed. K.H.O., supra, 161 N.J. at 357. On the other hand, he expressly concluded were L.T.'s relationship with Q.B. terminated, the child would suffer enduring harm, including behavioral and emotional regression, which defendant would be unable to mitigate.
Defendant's argument parsing the expert's opinion as not specifically tracking the language of the statute is meritless. R. 2:11-3(e)(1)(E). We determine the judge properly considered the expert's testimony as he is required. See J.C., supra, 129 N.J. at 22 (noting "psychologists and psychiatrists play a critical role in reaching an ultimate decision in termination cases.").
Finally, we must address the effect of L.T.'s status. Complying with Rule 2:6-11(f), the Division disclosed L.T. is currently receiving inpatient psychiatric treatment. In her reply, defendant suggests this "change in placement status requires a reversal of the judgment of guardianship, as the premise on which the judgment was made — that completely severing the mother-daughter relationship in favor of adoption by her aunt would be in her best interests — has been shown to be invalid." In support of her request for reevaluation of the fourth prong because of this post-termination circumstance, defendant relies on New Jersey Division of Youth & Family Services v. T.S., 417 N.J. Super. 228 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). We conclude the reliance on our fact sensitive opinion in T.S. is misplaced.
In T.S., following trial, several unexpected circumstances arose, calling into question whether the trial evidence, which supported termination of parental rights, remained reflective of the complete picture. T.S., supra, 417 N.J. Super. at 246. Post-trial, the mother continued to alleviate the harms that led the child's removal and supported her ability to achieve reunification. Id. at 246-47. Further, safety concerns arose necessitating the termination of the child's anticipated adoption placement. Ibid. In light of these significant changes in circumstances that supported guardianship, we remanded for additional review of "these additional facts, . . . not present at the time of trial, [but which] must nevertheless be assessed before a conclusion can be drawn that termination will do more harm than good." Id. at 249. We concluded: "[i]t is unusual to have such a culmination of events, which when taken together, call into question whether the possible detriment posed by keeping the parent-child relationship intact is outweighed by the potential benefits of terminating [the mother's] parental rights." Ibid.
Defendant's attempt to draw parallels with the facts at hand warranting a remand is rejected. We rely on this cautionary instruction issued in T.S.:
We do not intend to suggest that any and all post-trial changes warrant another look at the evidence presented at trial to support a final judgment terminating parental rights. We suggest only that there are instances when time does change everything. We are guided by the precept that "all doubts must be resolved against the termination of parental rights," because of the sanctity that we accord parent-child relationships and because we recognize "that the severing of that relationship is among the most severe and irreversible forms of state action." E.P., supra, 196 N.J. at 102-03 (internal quotation and citations omitted).
We conclude the trial court must reexamine the current facts and determine whether the Division has met its burden to establish by clear and convincing evidence
there were no alternatives to termination and termination will not do more harm than good.
[Id. at 249-50.]
The final issue raised on appeal claims the judge violated the requirements of Rule 1:2-3, by improperly taking judicial notice of prior orders in the related Title Nine actions, even though the orders were not entered into evidence. We disagree.
"Judicial notice has been defined as the cognizance of certain facts which judges and jurors may properly take and act upon without proof, because they already know them." Biunno, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 201 (2014) (quoting Freeman, "A Trial Lawyer Utilizes the Concepts of Judicial Notice and Presumptions." 95 N.J.L.J. 81 (1972)). The rules of evidence also expressly permit judicial notice of prior court orders. See N.J.R.E. 201(b). ("Facts which may be judicially noticed include . . . records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.")
"The purpose of judicial notice is to save time and promote judicial economy by precluding the necessity of proving facts that cannot seriously be disputed and are either generally or universally known." State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007). Defendant's assertions of error premised on a perceived need to formally mark prior orders as evidential exhibits is baseless.
We conclude the judge properly acknowledged defendant's objection to reliance of possible hearsay contained in the orders. Judicial notice was properly limited to entered orders and the court's supporting findings.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION