Opinion
DOCKET NO. A-6256-10T1 DOCKET NO. A-6257-10T1
02-19-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES,1 Plaintiff-Respondent, v. G.H. and M.C., Defendants-Appellants IN THE MATTER OF THE GUARDIANSHIP OF S.H., A MINOR.
Joseph E. Krakora, Public Defender, attorney for appellant G.H. (Anna F. Patras, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Rhonda J. Panken, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi, Hayden, and Lisa.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FG-13-81-09A.
Joseph E. Krakora, Public Defender, attorney for appellant G.H. (Anna F. Patras, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant M.C. (Rhonda J. Panken, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Michael A. Thompson, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
Defendants M.C. (Mia) and G.H. (Gene) appeal from the July 19, 2011 Family Part judgment of guardianship, which terminated their parental rights to their daughter S.H. (Sandra) and awarded guardianship to the New Jersey Division of Youth and Family Services (the Division). We address both appeals in a single opinion. Defendants contend 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-15.1a. 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 parties and the minor.
We discern the following facts from the record. Mia and Gene lived in Michigan and had a brief romantic relationship that resulted in the birth of Sandra in February 2006. When Sandra was four months old, Mia moved to New Jersey to live with her then boyfriend B.F. (Bob) and Bob's former girlfriend A.L. (Alice). After receiving an unfounded referral concerning the family in 2007, the Division substantiated Alice's complaint in 2008 that Bob was violent to both Alice and Mia and that Mia gave the child Nyquil nightly to ensure that she would sleep. Alice also reported that Mia occasionally "blacked out" and became very violent.
After the investigation, the Division removed Sandra from the home in January 2008. Pursuant to the Division's complaint alleging abuse and neglect by Mia, the Family Part judge awarded the Division temporary custody of the child, who was placed in a foster home. In February 2008, Sandra was placed in the care of her current foster parents, who wished to adopt her.
An Early Intervention Program developmental assessment in March 2008 revealed that Sandra was functioning at the equivalent of four to twelve months old, although she was twenty-five months old. She had many developmental delays, including gross motor skill delay, speech difficulty, focusing problems, and low muscle tone. After receiving early intervention services, including occupational, physical and speech therapies, she began to progress significantly.
Dr. Karen D. Wells, a licensed psychologist, evaluated Mia for the Division on June 12, 2008. Dr. Wells found that Mia lacked the ability to function independently due to her deficient intellectual capacity, impaired judgment, limited insight and diminished ability to generalize information. In concluding that even with the provision of multiple services Mia would not be able to safely parent Sandra, Dr. Wells stated:
Conclusions from the current evaluation do not offer any hope that now or within the future [Mia] will be able to provide even minimal parental care to a child, especially a youngster who presents with significant delays and special needs. She lacks the knowledge, reasoning, judgment, and skill to assume even minimal care of [Sandra] without supervision of a most concentrated nature. Concerns expressed relative to [Mia's] ability to parent are pervasive and chronic, highly unlikely to change, even with ongoing treatment.In 2009, Dr. Wells again evaluated Mia and reached the same conclusion. According to Dr. Wells, "any child placed in [Mia's] care would be at risk of grave and serious harm."
Dr. Alexander Iofin, a psychiatrist, evaluated Mia on August 22, 2008, and determined that she had a significant cognitive impairment and several deeply engrained maladaptive personality traits. He concluded that Mia was unable to function independently and would not be able to be an adequate caregiver for Sandra.
In May 2008, Gene indicated that he wanted to obtain custody of Sandra. The Division arranged, pursuant to the Interstate Compact for the Placement of Children, for the Michigan Child Protective Services to assess whether Sandra could safely be placed with him. The Michigan agency arranged for Dr. Harold S. Sommerschield, a psychologist, to evaluate Gene. Dr. Sommerschield concluded that Gene had significant cognitive impairments, particularly in comprehension, perceptual awareness and understanding nonverbal communication and that his ability to learn parenting skills was poor due to these deficits. He further concluded that "all these cognitive defects will make it extremely difficult for this man to independently and safely . . . parent a child with special needs." The Michigan agency recommended against placing the child with Gene. On July 7, 2009, Dr. Wells evaluated Gene and concluded that, due to his extreme cognitive deficits, poor judgment, inappropriate social skills and lack of awareness of social norms and processes, he would be unable to effectively and safely parent Sandra.
The Division filed a guardianship complaint against defendants on March 20, 2009. The guardianship trial was held on nonconsecutive days in July and December 2010, and February 2011. At the trial Dr. Wells and two Division caseworkers testified for the Division. Gene testified that he desired to have custody of Sandra. Four family members testified that they were willing to be considered as placements for Sandra.
On July 13, 2011, Judge Robert A. Coogan issued a comprehensive written opinion terminating Gene and Mia's parental rights to Sandra. The judge concluded, based upon the best interests of the child test in N.J.S.A. 30:4C-15.1a, that there was clear and convincing evidence that the parents' rights should be terminated so that Sandra could be adopted. From our independent review of the record we agree that substantial evidence exists to support that conclusion. We affirm essentially for the reasons expressed in Judge Coogan's thoughtful and thorough opinion. 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 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-15.1a, 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) (citation omitted); 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 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.
On this appeal, our review of Judge Coogan's decision is limited. Ordinarily, we will defer to a trial judge's factual determination unless those findings "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation 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 judge because he has 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 reviewing 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 Coogan's credibility determinations, his factual findings or his conclusion to terminate Mia and Gene's parental rights.
The first prong of the best interests test under N.J.S.A. 30:4C-15.1a(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; In re Guardianship of D.M.H., 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 (citing 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, convincing and unrefuted that neither Mia nor Gene has the cognitive or emotional capacity to meet his or her own needs, let alone the needs of a child like Sandra. Thus, the evidence amply demonstrated that defendants were unable to provide the care Sandra needed in the past and that they will continue to be unable to provide that care into the foreseeable future. Both Dr. Wells and Dr. Iofin agreed that, due to the fixed nature of their deficits, defendants' fundamental incapacity to parent was extremely unlikely to change. While defendants may be morally blameless, the harm thus created must still be considered and weighed against them. See In re Guardianship of R. G. and F., 155 N.J. Super. 186, 194-95 (App. Div. 1977).
We recognize that not every individual with a cognitive impairment is unable to demonstrate minimal parenting skills. We agree with Judge Coogan's determination, however, that here defendants' "mental deficiency, lack of judgment and lack of independent functioning" precluded them from being able to safely meet the child's needs in the past and make it highly likely they will be unable to eliminate this harm in the future.
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 Coogan found that the Division had provided both parents with a wide array of services. The Division had provided Mia with visitation, transportation, psychological and psychiatric evaluations and counseling services. Mia had regularly skipped her counseling to the point that her case was closed and she often missed her scheduled visitations with Sandra. The Division also provided referrals to Gene for services in Michigan, which he attended, but due to the nature of his cognitive limitations, the services were unable to change his basic impairment. The Division investigated friends and family members for placement of Sandra but the few who responded were ruled out. At the trial, additional relatives testified that they were willing to be considered as placements. However, the judge appropriately found that Sandra would suffer enduring harm if removed from her foster parents' care. Under the circumstances of this case, we agree that the Division satisfied the third prong.
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. In analyzing the evidence in light of this prong, the judge relied heavily on the bonding evaluations and testimony of Dr. Wells. In Dr. Wells' opinion, Sandra was not securely bonded to Mia, and would not suffer detrimental effects if her rights were terminated. On the other hand, Dr. Wells found that Sandra was well bonded to her foster parents and would suffer severe and enduring harm if she was removed from her care. Dr. Wells observed that Sandra had progressed significantly in her development since living with the foster parents and opined that she was very likely to regress if removed. We are in accord with Judge Coogan that, balancing the lack of harm to Sandra from the termination of defendants' parental rights with the benefit of remaining in a stable permanent home, termination of parental rights will do much good and minimal harm.
Dr. Wells did not perform a bonding evaluation with Gene because he had not seen Sandra since she was seven months old, which she explained was before the age that bonding can start to occur. Hence, we reject Gene's argument that this failure to do such an evaluation was reversible error.
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In sum, we conclude that Judge Coogan did not err in determining that Sandra's best interests require termination of defendants' parental rights so that she could be adopted by the present foster parents.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION