Opinion
DOCKET NO. A-2364-11T1 DOCKET NO. A-2460-11T1
02-19-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. C.K.H. and P.J.M., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF S.K.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant C.K.H. (Kevin G. Byrnes, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant P.J.M. (Arthur David Malkin, Designated Counsel, on the brief). Jeffrey E. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel J. Kelly, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.K.M. (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-0025-11.
Joseph E. Krakora, Public Defender, attorney for appellant C.K.H. (Kevin G. Byrnes, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant P.J.M. (Arthur David Malkin, Designated Counsel, on the brief).
Jeffrey E. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel J. Kelly, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor S.K.M. (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
In these consolidated appeals, defendants C.K.M. (Cynthia) and P.J.M. (Paul) appeal from the Family Part's order terminating their parental rights to their daughter, S.K.M (Sarah), who was born in May 2001. Both defendants argue that the Division of Youth and Family Services (the Division) failed to prove by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1. Additionally, Cynthia argues that her due process rights were violated when the Division's expert, psychologist James Loving, "rendered opinions based on a methodology that does not ensure the reliability of those opinions."
We have fictionalized the names of all involved.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families and renamed the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
I.
Defendants are not married, and Sarah is the only child of both. The Division's first contact with Cynthia occurred on September 30, 2008, when she requested assistance with her outstanding electric bill. Cynthia reported she was working part-time and raising Sarah alone. She said that she had "been in and out of the hospital" for the past few months "due to stress and depression." Cynthia told the Division that Sarah was staying with Paul during her hospitalization.
On January 13, 2009, Deptford Township police officers responded to Cynthia's home regarding a dispute. They noted a strong "stench" of marijuana and observed phencyclidine (PCP) residue, and drug paraphernalia in the home. Cynthia was screaming, cursing, threatening an upstairs neighbor and "bab[b]ling incoherently." Cynthia told them her daughter would be returning home from school in an hour. The officers contacted a mobile medical team, but Cynthia refused treatment. She was arrested and charged with resisting arrest and possession of marijuana laced with PCP with the intent to distribute.
The police contacted the Division. When interviewed, Cynthia denied using drugs, although she appeared to be under the influence, was hostile and unresponsive to questioning. Cynthia told the Division worker that she wanted Sarah to stay with her "stepfather," S.O. (Steve). When contacted by the Division, Steve, a Camden police officer, indicated he would care for Sarah, but also advised that he only had phone contact with the child since he and Cynthia terminated their relationship. According to Steve, he attempted to have Cynthia seek treatment for her drug use, but that resulted in a domestic violence restraining order against him, and Steve had no contact with her since. At the time, Paul was incarcerated, having been arrested in November 2008 for possession of a controlled dangerous substance with intent to distribute.
It is unclear from the record when that occurred.
The Division effected an emergency Dodd removal. On January 15, 2009, the Family Part entered an order awarding the Division care and custody of Sarah. Sarah was placed in a Division-approved resource home where she has remained ever since. Physical examination revealed that Sarah was in good health.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which as amended is found at N.J.S.A. 9:6-8.21 to -8.82." Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citation omitted).
Although incarcerated, both defendants appeared at the hearing held on January 30, the return date of the Division's Order to Show Cause. Evaluations and supervised visitations were ordered, and both defendants were ordered to contact the Division upon their release from custody.
It is unclear exactly when Cynthia was released from custody, but, on February 9, she appeared at the Division's offices along with Paul's stepmother, W.B.-N. (Winnie), whose home had been evaluated for possible placement but initially rejected by the Division. Approximately two weeks later, Cynthia again arrived at the Division's offices but refused to sign the release form necessary to initiate her substance abuse evaluation.
In May, the Division was finally able to arrange for a substance abuse evaluation for Cynthia with the Center for Family Services (CFS). CFS had difficulty contacting Cynthia by phone, and she missed all scheduled appointments that month. Attempts to refer Cynthia for parenting classes at the ARC Family Intervention Program were equally unsuccessful.
In March, Norman D. Schaffer, Ph.D., conducted a psychological evaluation of Cynthia. Cynthia indicated that she had spent her youth in a series of foster homes, in which she was "starved, beaten and raped[.]" Cynthia denied having any drug or alcohol problems, and Schaffer concluded she evidenced "no clinically significant psychiatric problems." However, Schaffer concluded Cynthia "should not be entrusted with the welfare of [her] child" unless she addressed her "drug problem."
At a June 15 compliance hearing, the judge ordered Cynthia to submit to three random urine screens. Samples taken on July 9 and 24 were positive for PCP. Attempts to have Cynthia attend parenting classes with FamCare during July were an abject failure because she never arrived for her intake interview and did not respond to written notifications of her appointments. In September, FamCare closed its case because of Cynthia's non-compliance. Despite attending earlier supervised visitations with Sarah, the Division cancelled scheduled visits in May and July because Cynthia failed to confirm her attendance with the caseworker or Sarah's foster mother, C.G. (Carol).
The judge conducted a fact-finding hearing on August 4, 2009. We were not provided with the transcript. An order was entered as to both defendants, although the basis for the finding of abuse and neglect centered solely upon Cynthia's January arrest and the lack of care for Sarah as a result.
Cynthia's behavior spiraled downward. In early September, during a visit with Sarah at Winnie's home, Cynthia began screaming at the Division's caseworker over the phone. Winnie called back shortly thereafter and told the caseworker that Cynthia would "not stop yelling and cursing." Sara was heard in the background unsuccessfully telling her mother to stop. The Division's transportation aide removed Sarah from the home, and Winnie agreed with the Division that all future visits needed to be at the Division's offices. Later in September, Cynthia called Carol and Sarah to say she would no longer visit her daughter until she regained custody.
On October 14, the judge conducted a compliance review hearing. Although he remained incarcerated, Paul was present, as was Cynthia. We have not been provided with the transcript from those proceedings, but a Division contact sheet in evidence indicates that, although the manager of her apartment said Cynthia had been evicted from her home, she continued to provide the same address to the judge. Under further questioning, Cynthia became angry, and the judge ordered that she be removed from the courtroom. The judge also ordered Cynthia's immediate evaluation at a mental health crisis center. Blood samples taken at Underwood-Memorial Hospital that day revealed the presence of PCP.
Even though she continued to deny the use of any drugs, in January 2010, the Division secured substance abuse outpatient placement for Cynthia at the Sikora Center in Camden, commencing February 1. By March, she was discharged "for sporadic attendance," failure to comply with rules and regulations and positive drug screens. The discharge summary indicates Cynthia tested positive for PCP three times during February, including the day she first reported for counseling.
In April, the Division's Substance Abuse Initiative (SAI) again attempted to place Cynthia in treatment. SAI could not complete the evaluation because Cynthia refused to answer questions and became abusive. SAI closed Cynthia's case.
In May, Cynthia advised the Division she had voluntarily entered substance abuse treatment at the Cooper House Women's Recovery Outpatient program (Cooper House). The Division confirmed this with the program. Cynthia's initial drug screen was negative, however, within the first week of treatment, she missed several appointments. The Division learned that Cynthia had been arrested on May 17, although the exact nature of the charge is unclear. After being released in her own recognizance, Cynthia provided a drug sample to Cooper House on May 21 that was positive for PCP. On June 25, Cooper House advised the Division that it discharged Cynthia for noncompliance and continued use of PCP. Drug screens indicated her PCP usage had "greatly increased."
In the interim, Sarah continued to do well in her foster home, and Carol indicated a willingness to adopt her. The Division concluded that adoption was the appropriate case plan. On July 9, the judge entered an order approving the Division's permanency plan, noting Cynthia "ha[d] not completed" substance abuse treatment and "continue[d] to test positive for PCP," and Paul "ha[d] not completed" substance abuse treatment "and remain[ed] incarcerated."
Attempts to place Cynthia in inpatient substance abuse treatment were unsuccessful during August and September. She continued to deny her drug use, was argumentative and her behavior was "bizarre and erra[]tic" during counseling sessions with SAI. Cynthia continued to test positive for PCP use. Yet, her supervised visits with Sarah were frequent and appropriate during this time.
On October 13, 2010, Doctor James Loving psychologically evaluated Cynthia. The interview was difficult, in part, because Cynthia claimed to have recently suffered a concussion. Nonetheless, Loving made certain findings that were "clear-cut." Cynthia had "a significant problem with PCP abuse and dependence," and presented with "significant mental health symptoms, including problems in terms of her thought content and thought processes." Loving believed "the most plausible explanation for her current symptoms is a substance-induced psychotic condition, caused by ongoing or very recent drug intoxication at the time of our meeting."
In November, the Division secured a MICA substance abuse placement for Cynthia at Unity Place. She apparently participated in the program as an outpatient, but, on December 15, the Division learned that Cynthia was incarcerated at the Camden County jail. During a subsequent psychological evaluation conducted for the Division by Loving in February 2011, Cynthia indicated that she was arrested for a driving infraction and remained incarcerated until January 13, 2011. Although resuming her visitation with Sarah, Cynthia never resumed substance abuse treatment. Loving's updated report also indicated that Cynthia was arrested in Philadelphia in May 2011 and remained incarcerated for several weeks at that time.
Loving detailed Cynthia's troubled childhood and her history of psychiatric treatment. Cynthia had been prescribed Xanax "'for anxiety and depression,'" but claimed she never actually took the medication. Although she told Loving about only one prior psychiatric hospitalization, he noted that Cynthia had also recounted to others "a history of five hospitalizations, including for suicide attempts, dating back to her rape at age [thirteen]." Cynthia told Loving that she "'almost signed [herself] in a week ago.'"
Loving concluded that Cynthia presented a "dismal prognosis for engaging in drug-related treatment . . . ." Cynthia also "struggle[d] with paranoid thinking," a "reasonable" result of her abuse as a child, and "[t]o some degree, . . . suffer[ed] with post-traumatic symptoms . . . ." Loving stated that Cynthia was "not expected to serve as a safe, effective caregiver to her daughter at any time in the foreseeable future," and Loving strongly recommended adoption for Sarah.
Meanwhile, Paul remained incarcerated until February 2011. On March 22, Loving psychologically evaluated Paul. Paul reported "living 'place to place'" since his release from prison. He had completed substance abuse treatment while incarcerated, and believed that he did not need additional treatment or other services. Paul reported having attended two supervised visits with Sarah since his release. He expressed a willingness to do anything the Division needed him to do in order to obtain custody, but Paul also told Loving that the best permanency plan for Sarah was her return to Cynthia.
Paul denied ever using illegal drugs but admitted a long history of criminal convictions. In addition to the sentence he had recently completed, Paul had been convicted of aggravated assault in 2004 and sentenced to probation. The judgment of conviction contains the sentencing judge's statement of reasons that further reflects Paul was convicted three previous times for drug offenses and robbery. Paul violated his probation when convicted again in 2006 for drug offenses; he was sentenced to State prison. Despite this documentary evidence, Paul denied having ever been convicted of a violent crime.
Loving concluded Paul evidenced no "mental health concerns," but, based upon his criminal history, Loving found "strong evidence that [Paul's] behavior has been fueled in part by an antisocial personality style." Loving opined that Paul "pose[d] an extremely high risk for criminal behavior that could result in re-arrest and re-incarceration." Loving believed Paul could not "be viewed as a candidate for safe, healthy reunification, now or in the forseeable future."
Loving conducted bonding evaluations with Sarah and each defendant, and with Sarah and her foster parents. Loving observed that Sarah had difficulty feeling secure in her relationship with her mother and was "parentified" in that relationship. He concluded that Sarah "appears to experience a strong and mostly positive emotional attachment to [Cynthia]," and she "identifies [Cynthia] as her primary parent figure." Loving reached a similar conclusion about Sarah's positive bond with Paul, noting that "this attachment is not as strong as the one [Sarah] shares with her mother[.]" But, as to each parent, Loving noted that Sarah harbored feelings of "uncertainty and disappointment" based upon past history.
Loving believed that Sarah also had "a fairly strong and mostly positive set of attachments" to Carol and her husband. Yet, commenting on Sarah's knowledge that the G.'s had been "noncommittal" about adopting her in the past, Loving opined that Sarah "[wa]s expected to experience a sense of unrest over time . . . ."
Although he was inclined to recommend reunification with either Cynthia or Paul, Loving ultimately concluded:
Unfortunately, for reasons discussed in both parents' psychological evaluation reports, I cannot support either of those plans now, or in the foreseeable future. In [Paul's] case, it is especially concerning that he appears to have abandoned all efforts to regain custody, so that it would be impossible to support such a plan now or at any point in the foreseeable future. As for [Cynthia], . . . she has done strikingly little to remedy her drug-related problems. It is the sad but indisputable conclusion in this case that [Sarah] would be unsafe under her mother's care, if she were returned now or in the foreseeable future. . . . [E]ven though [Sarah] would be placed at increased risk of harm by severing ties with one or both birth parents, she would be at even higher risk if she were returned to [Cynthia's] or [Paul's] care. . . . [T]erminating parental rights would not cause more emotional harm than good to [Sarah] . . . .
The guardianship trial commenced on July 26, 2011, and neither Cynthia nor Paul appeared. In each case, defense counsel could not explain their absences. After the trial started, Cynthia appeared and was present for all trial days thereafter. Paul never appeared during the trial.
The transcript for one of the trial days does not include the appearances of counsel. Nevertheless, it is clear that Cynthia was present but there is no indication that Paul was.
Lauren Keebler, the caseworker assigned, testified to much of what we recounted above. Keebler had no contact with Paul since March, when, after submitting a urine sample and being evaluated by Loving, Paul cancelled his visit with Sarah scheduled for the next day. Lab results demonstrated the sample "appeared to have . . . be[en] tap water."
Keebler testified to threats Cynthia made in the past, telling Keebler that she was "going to slit . . . [her] throat."She also recounted the various referrals made and the other placement options offered by both defendants, which, in every case proved "fruitless." Keebler also testified that Carol and her husband were committed to adopting Sarah, and that Sarah had completed counseling for foster children available through Robin's Nest.
Cynthia denied this during an extemporaneous outburst in court.
Loving testified as to his initial and supplemental evaluation of Cynthia. His conclusions were consistent with those reached in his reports. He noted Cynthia's continued denial of her drug abuse, leading to his conclusion that "the possibility of her engaging in treatment and working on that problem . . . is incredibly small . . . ." Loving reached the same conclusion regarding Cynthia's prognosis for success in treating her "other mental health problems." Loving's testimony regarding Paul was consistent with the contents of his evaluation report.
Neither defendant testified nor called any witnesses.
The parties submitted written summations that are not part of the appellate record. The judge placed her oral decision on the record on November 30, 2011, and entered an order on December 7, 2011, terminating Cynthia's and Paul's parental rights to Sarah. This appeal ensued.
II.
Our review of an order terminating parental rights is limited. "We will not disturb the family court's decision . . . when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)).
We accord particular deference to the judge's fact-finding because of "the family courts' special jurisdiction and expertise in family matters . . . ." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (internal quotation marks and citation omitted). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"[W]here 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." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). Yet, "even in those circumstances[,] we will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." Ibid. (internal quotation marks and citations omitted).
"The focus of a termination-of-parental-rights hearing is the best interests of the child[,]" and the Division must "satisfy by clear and convincing evidence four factors, known as the best-interests-of-the-child test, set forth in N.J.S.A. 30:4C-15.1(a)." N.J. Div. of Youth and Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). Those statutory factors are:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999). The four prongs require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." M.M., supra, 189 N.J. at 280 (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005)) (internal quotation marks omitted).
(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.
[N.J.S.A. 30:4C-15.1(a).]
A.
As to prong one, the judge noted that Cynthia's drug abuse, although first brought to the Division's attention during the January 2009 arrest, "did not suddenly happen on one particular date . . . ." She found that Sarah "was in danger if she continued in that situation with her mother," noting further Cynthia's repeated noncompliance and failures to address the problem. As to Paul, the judge stated he "is really not available at this point and hasn't visited since the spring . . . . " The judge took particular note of Paul's absence and failure to contact the Division since his March 2011 evaluation by Loving.
Before us, Cynthia claims that the Division's proof was "nothing more than speculation," and there was no evidence of Sarah's "impairment, let alone serious impairment . . . ." Paul claims that the judge never made a finding of abuse or neglect at the Title Nine fact-finding hearing, and, even if it was implied, the lesser standard of proof -- preponderance of the evidence -- cannot satisfy a finding as to prong one in the guardianship trial. Paul contends his long period of incarceration was the sole reason for the termination of his parental rights.
"Under prong one of the best-interests test, [the Division] must show that the alleged harm 'threatens the child's health and will likely have continuing deleterious effects on the child.'" F.M., supra, 211 N.J. at 449 (quoting K.H.O., supra, 161 N.J. at 352) (citation omitted). The Division need not "wait until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (internal quotation marks and citation omitted). "[H]arm caused by circumstances attendant to the parent-child relationship is as pertinent as any harm caused directly by a parent." M.M., supra, 189 N.J. at 289.
Here, Sarah was exposed at a young age to Cynthia's virulent substance abuse and unwillingness to accept the help offered. The record adequately demonstrates that Sarah was already "parentified." During one of the visits, the child tried to give money to her mother out of concern for her well-being. Cynthia demonstrated a lifestyle that was somewhat transient, missing or cancelling some visitations, repeatedly being incarcerated and generally being difficult to contact when the Division and referred services tried to reach her.
Cynthia's reliance on our recent decision in Div. of Youth and Family Servs. v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011), is misplaced. In V.T., we "accept[ed] the trial judge's factual findings that [the defendant] did not fully cooperate with recommended drug treatment and tested positive for cocaine and marijuana at two supervised visits" but "disagree[d] that such behavior inherently created a substantial risk of harm to [the defendant's child]." Id. at 330. However, the defendant in V.T., "completed parenting skills and anger management classes ordered by the family court," "completed substance abuse treatment" and "stated that he no longer used corporal punishment because he learned alternative means of discipline through the courses he was attending." Id. at 324-25, 327.
The New Jersey Supreme Court recently held that "not every instance of drug use by a parent . . . standing alone, will substantiate a finding of abuse and neglect . . . ." N.J. Dept. of Children and Families v. A.L., ____ N.J. _, _ (2013) (slip op. at 25). Instead, the focus should be "on the risk of substantial, imminent harm to the child . . . ." Ibid. The Court in A.L. addressed a question "of statutory interpretation": "whether a court can find 'abuse' or 'neglect' of a child under Title 9 if an expectant mother uses drugs during pregnancy but there is no evidence of actual harm when the baby is born." Id. at 2. Sarah endured years of instability and disappointment due to her mother's drug use and her father's unwillingness to commit to fulfilling his obligations as a parent. Thus, this case is not factually analogous to A.L. Furthermore, while reversing the Appellate Division's judgment affirming the trial court's finding of abuse or neglect, the Court reaffirmed that "[a] court 'need not wait to act until a child is actually irreparably impaired by parental inattention or neglect.'" Id. at 24-25 (quoting In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999)).
In this case, Cynthia failed to comply with any recommended drug treatment and consistently tested positive for PCP. We note that "[t]he absence of physical abuse or neglect is not conclusive" as to prong one. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 605 (1986) (citation omitted)). The test is "whether the child's safety, health or development will be endangered in the future and whether the parents are or will be able to eliminate the harm." Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001) (emphasis added). The proof as to the risk of harm to Sarah caused by Cynthia was clear and convincing.
"[I]t is by no means settled or obvious that incarceration is so inimical to the [parental] relationship as to justify its termination as a matter of law." N.J. Div. of Youth & Fam. Servs. v. S.A., 382 N.J. Super. 525, 534 (App. Div. 2006). However, a parent's incarceration is a relevant factor for consideration because it is probative of whether that parent is capable of properly caring for the child. In re Adoption of Children by L.A.S., 134 N.J. 127, 135-36 (1993).
Paul was incarcerated during much of Sarah's early years. He was sentenced to prison in 2006, re-incarcerated shortly after his release in November 2008, and remained incarcerated until February 2011. When Cynthia was arrested and her drug abuse brought to light in January 2009, Paul was not there for Sarah. When released from custody in February 2011, he attended two supervised visitations and then dropped out of sight.
In short, Paul's continued absence and lack of concern regarding his daughter's welfare amounted to virtual abandonment. See D.M.H., supra, 161 N.J. at 379 ("A parent's withdrawal of that solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child") (citation omitted). The proofs clearly satisfied prong one of the statutory best interests test.
Paul's claim that the judge never made a finding of abuse or neglect during the Title Nine proceedings, and, therefore, it was error to terminate his parental rights lacks sufficient merit to warrant discussion. See F.M., supra, 211 N.J. at 444 (holding the Division "may initiate termination proceedings, even if a Title 9 action is pending and no determination of abuse or neglect has been made") (citation omitted).
B.
As to prong two, after reciting the failed referrals for substance abuse treatment, the judge found Cynthia was "unable to eliminate the harm facing" Sarah. She concluded there was no likelihood that Cynthia could become a "healthy mother" in the forseeable future. As to Paul, the judge noted Loving's report and testimony, finding Paul presented "an extremely high risk for criminal re-arrest and incarceration . . . ."
Cynthia poses no specific argument as to prong two, except to say she was willing to accept "'in-patient' treatment," but the Division failed to make reasonable efforts to find such a facility. Paul also makes no specific claim of error as to prong two, contending only that the Division failed to adequately explore placement with other relatives. We address these issues more fully below.
The second prong "relates to parental unfitness," which may be established by demonstrating that: (1) "the parent is 'unwilling or unable to eliminate the harm'"; or (2) "the parent has failed to provide a 'safe and stable home'" and "a 'delay in permanent placement' will further harm the child." K.H.O., supra, 161 N.J. at 352 (quoting N.J.S.A. 30:4C-15.1(a)(2)). The inquiry is "whether that parent can raise the child without inflicting any further harm." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 87 (App Div. 2006) (citing In re Guardianship of J.C., 129 N.J. 1, 10 (1992)), certif. denied, 190 N.J. 257 (2007). "Concern and efforts by a natural parent after his or her child has been removed from the home, and making genuine and successful efforts to overcome the cause of the removal is of enormous significance" when determining fitness. N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 437 (App. Div. 2009).
Defendants' arguments as to prong two lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). It suffices to say that the Division's proofs were clear and convincing. Cynthia thwarted all attempts at substance abuse treatment. When finally placed in a MICA out-patient program with Unity Place, in anticipation of eventual inpatient placement, she tested positive for PCP, was arrested and incarcerated and never again sought treatment. Our above discussion regarding Paul's lack of concern about Sarah's upbringing amply demonstrates his lack of fitness.
C.
The judge found as to prong three that the Division had made "referrals and re-referrals" for Cynthia to attend substance abuse treatment. As to Paul, the judge noted his incarceration and more importantly his absence after attending only two visitations upon his release. She also found that the Division gave consideration to alternative placements with defendants' relatives, particularly in light of the possibility that Carol and her husband would not initially commit to adopting Sarah. But, these alternative placements all failed for various reasons, including the unwillingness of the relatives to serve as placement resources.
Cynthia contends that, despite her record of outpatient substance abuse treatment failures, the Division should have provided inpatient treatment, as recommended by Loving and others. She also argues the Division failed to obtain her complete medical records so as to address the myriad physical and mental health issues presented. Paul claims that the Division provided no services to him, failed to consider relatives as alternative placement resources and did not make reasonable efforts to contact him throughout the litigation.
N.J.S.A. 30:4C-15.1(c) defines "reasonable efforts," as actions by the Division "to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure . . . ." Provision of services under the third prong "contemplates efforts that focus on reunification," K.H.O., supra, 161 N.J. at 354, and "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." M.M., supra, 189 N.J. at 281.
A court must consider whether a parent actively participated in the reunification effort. See D.M.H., supra, 161 N.J. at 390. The reasonableness of the Division's efforts "is not measured by their success." Id. at 393. Ultimately, "[t]he failure or lack of success of [the Division's] efforts does not foreclose a finding that the Division met its statutory burden to try to reunify the children with the family." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal of the termination order is not necessarily "warranted, because the best interests of the child controls." Id. at 621.
In this case, the Division made repeated efforts to help Cynthia address her drug abuse. She failed to comply in every instance. When, after much effort, DYFS was able to secure her attendance at a MICA program, Unity Place, in anticipation of her transfer to a residential program, Cynthia was arrested and again incarcerated. Although she resumed her visits with Sarah, she never resumed her attendance at the program. Any claim the Division failed to make reasonable efforts is without merit.
Paul's arguments are equally meritless. The Division evaluated his need for substance abuse treatment upon his release from prison. Paul sabotaged any efforts, failed to sustain any visitation with his daughter and essentially disappeared. The Division evaluated and rejected Paul's relatives as placement options for valid reasons as found by the judge.
The proofs as to each defendant under prong three were clear and convincing.
D.
In considering the fourth prong, the judge credited Loving's testimony and opinion. She noted that Sarah "developed a . . . remarkable and healthy parallel attachment and love for her foster parents and her mother . . . ." The judge summarized Loving's testimony: "although the child will suffer with the loss of her mother, she will suffer in that way no matter what." The judge noted "the current situation . . . can't continue indefinitely[,]" and Sarah needed a stable and nurturing home which her foster parents were committed to provide.
Cynthia contends that Loving acknowledged her strong bond with Sarah and the proof as to prong four was inadequate. Paul adopts Cynthia's argument and further contends that alternative placements existed.
The statute's fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. The court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[W]here it is shown that the bond with foster parents is strong and, in comparison, the bond with the natural parent is not as strong," termination may be appropriate. Id. at 363. "[A]fter considering and balancing the two relationships," the question becomes 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." Id. at 355.
Loving testified that Sarah developed an attachment to her foster parents. He acknowledged that if Sarah lost contact with her mother, that would "add to her emotional risk of harm . . . ." Nevertheless, Loving opined that Cynthia would not or could not address her drug addiction with any certainty in the reasonably foreseeable future, and, even if she did, a myriad of mental health issues would continue to present themselves. Loving recommended termination to ensure Cynthia's future safety.
Loving testified that Sarah's bond with her foster parents was also strong and, if adopted, they could "buffer" Sarah from emotional harm caused by the termination of Cynthia's parental rights and provide a healthy sense of permanency. He testified that the longer permanency was delayed, the higher Sarah's risk for long-term harm. Based upon this expert testimony, which the judge credited, the Division proved the fourth prong of the statutory test by clear and convincing evidence.
In a separate point, Cynthia argues that reliance on Loving's opinions was error because they were "based on a methodology that does not ensure . . . reliability . . . ." Cynthia argues that Loving was not "capable of predicting future human behavior with reasonable scientific certainty." At trial, there was no objection to Loving's qualifications or his ability to offer the opinions he did. We refuse to consider the issue for the first time on appeal. See State v. Robinson, 200 N.J. 1, 20-21 (2009) (discussing the need to preserve an issue for appeal by timely objection); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("appellate courts will decline to consider questions or issues not properly presented to the trial court . . . .") (citation and internal quotation marks omitted).
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION