Opinion
DOCKET NO. A-5569-10T3 DOCKET NO. A-5573-10T3
09-18-2012
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. J.G. AND S.B-G., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF I.M.G., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Mark Tabakman, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant S.B-G. (Douglas M. Greene, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.M.G. (Katherine J. Bierwas, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Harris.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FG-06-29-11.
Joseph E. Krakora, Public Defender, attorney for appellant J.G. (Mark Tabakman, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant S.B-G. (Douglas M. Greene, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent New Jersey Division of Youth and Family Services (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Cynthia J. Schappell, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor I.M.G. (Katherine J. Bierwas, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendants J.G. (John) and S.B-G. (Susan) seek review of the Family Part's judgment terminating parental rights to their son I.M.G. (Ian). Both parents contend that plaintiff New Jersey Division of Youth and Family Services (the Division) did not prove by clear and convincing evidence the requisite statutory factors to establish that Ian's best interests would be served by severance of their parental ties. The Law Guardian supports termination of both parents' rights to Ian.
Pseudonyms are used for defendants and the child whose custody is the focus of this appeal.
On June 29, 2012, the Governor signed into law A-3101, which reorganized the Department of Children and Families, including the renaming of the Division as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. July 2, 2012.
After considering the record in light of the applicable law, we are satisfied that Judge Harold U. Johnson Jr.'s findings and conclusions are firmly supported by substantial, credible evidence in the record as a whole. See N.J. Div. of Youth & Family Servs. v. F.M., ___ N.J. ___ (2012) (slip op. at 34-35). Accordingly, we affirm the judgment against both parents.
I.
Ian was born on May 23, 2009, and immediately removed from his mother's care. On May 28, 2009, the child was placed with a Division resource family where he remained up to and through the disposition of the guardianship trial. At the time of Ian's birth, the Division was already involved with the family, which resulted in the termination of Susan's parental rights to an older child.
On the day following Ian's birth, the Division received a referral noting that Susan suffered from chronic mental health issues, was previously hospitalized for those issues, and that the Division had previously intervened in the removal of her first child. The referral further alleged that during the moments immediately preceding Ian's birth the parents argued over the need for a surgical intervention, leading John to be escorted from the hospital after having a "verbal altercation" with Susan and hospital staff.
On May 28, 2009, a Division caseworker interviewed Susan and John separately and individually. They conceded that they had each been admitted to several mental health facilities and were diagnosed with mental illnesses, but Susan maintained that she did not have any mental health issues. Both parents acknowledged a history of domestic violence and resulting police involvement.
The caseworker also met with Susan's case manager at the Cumberland County Guidance Center, a facility that provides "case management care for individuals who are released from mental health[] facilities." The case manager advised that Susan should be taking medication and in counseling to treat her mental health issues but that she fervently rejected any treatment and services.
On June 1, 2009, the Division was awarded custody, care, and supervision of Ian by the Family Part. Two weeks later, the parents were ordered to comply with evaluation recommendations, which included medication monitoring and counseling. On September 8, 2009, Susan entered into a stipulation that "based upon [her] mental health issues [her] [] family [is] in need of services pursuant to . . . Title 30."
Susan attended a psychiatric evaluation with Dr. Edward Baruch, M.D. on March 10, 2009, approximately two months before Ian was born. She would meet with Dr. Baruch again for an additional evaluation on November 9, 2010. In both evaluations Susan was diagnosed with schizoaffective disorder. Dr. Baruch recommended medication as a course of treatment for her psychosis. Dr. Baruch noted a "lengthy history of psychiatric illness, domestic violence and psychiatric hospitalizations" but that Susan had not been regularly taking any psychiatric medication. Dr. Baruch added that Susan exhibited "signs of delusions and a thought disorder, making it difficult for her to function adequately and be responsible for her health and well-being." He recommended close monitoring by the Division.
John also attended two separate psychiatric evaluations with Dr. Baruch. At his first evaluation, on April 6, 2009, Dr. Baruch diagnosed John with "[s]chizophrenia, [p]aranoid [t]ype" and recommended intensive outpatient treatment. At the second evaluation, on January 24, 2011, Dr. Baruch offered the same diagnosis and recommended "ongoing psychiatric monitoring," especially since John was "unwilling to take any antipsychotic medications." When the guardianship trial began on June 10, 2011, neither John nor Susan had complied with the recommended treatment services even though the Division had made several efforts to provide them.
John and Susan were entitled to supervised visits with Ian during the course of the guardianship proceedings, which they regularly attended. Comprehensive bonding and psychological evaluations were conducted for John, Susan, and Ian's resource parents. Dr. James Loving, Psy.D, testified that due to the complex, multi-layered risks displayed by John and Susan, he could not support reunification for the parents.
Dr. Loving found and testified at trial that Ian did not demonstrate any evidence of attachment with his birth parents. Dr. Loving concluded that Ian would not suffer any serious or enduring harm if John's and Susan's parental rights were terminated. By contrast, Dr. Loving found a significant evident bond between Ian and his resource family. Accordingly, Dr. Loving concluded that removing Ian from his resource family would put him at an increased risk of harm, which he may be unable to overcome, given the circumstances of this case. Dr. Loving also determined that it was in Ian's best interest if he were to be adopted by his resource family.
Dr. Loving concluded that both parents needed to engage in extensive treatment for some period to address their separate issues. He added that although treatment had been recommended in the past, neither John nor Susan had availed themselves of offered services. Dr. Loving observed: "[i]t actually seems very clear . . . that [both John and Susan] have shown that they're not inclined to pursue treatment that's been recommended for them, court ordered for them . . . recommended to be necessary by multiple evaluators up until now."
John and Susan testified in their defense. Susan explained that she has never had anyone instruct her how to parent, and there are a number of things she did not know how to do. John offered that he was unwilling to take medication or engage in other outpatient therapy because he simply did not have the time to do so.
Judge Johnson rendered an oral decision at the close of the one-day trial conducted on June 10, 2011. The judge found that the four-factor test enumerated in N.J.S.A. 30:4C-15.1 was met by clear and convincing evidence. He further held that neither John nor Susan corrected the circumstances that led to Ian's placement outside of their care and that neither parent will be able "to engage in services in a way that would allow [Ian] to be reunited with them." Judge Johnson added that he could "find absolutely no harm that will occur to [Ian] if the termination occurs" and concluded that termination of John's and Susan's parental rights was proper because "[a]ll four elements of the four-prong test" were satisfied by "overwhelmingly clear and convincing evidence based upon the totality of the reports, and the evidence presented to this Court."
Judge Johnson's ruling noted that this was Susan's second guardianship trial. He referenced the earlier decision of Judge Julio L. Mendez under Docket No. FG-06-32-09 , and asserted that the circumstances had not changed much since that prior guardianship disposition. This appeal ensued.
We affirmed Judge Mendez's judgment terminating Susan's parental rights. N.J. Div. of Youth & Fam. Servs. v. S.B., No. A-5968-08 (App. Div. June 8, 2010). John had been a party to that action but after being excluded as the child's father, the court dismissed him from the action. Id. at 5.
II.
Susan raises the following issues for our consideration:
POINT 1: THE TRIAL COURT'S DETERMINATION THAT THE DIVISION SATISFIED ALL FOUR PRONGS OF THE STATE STATUTE BY CLEAR AND CONVINCING PROOFS IS NOT SUPPORTED BY THE RECORD.
A. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CHILD'S HEALTH AND DEVELOPMENT HAVE BEEN OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.POINT 2: THE TRIAL JUDGE ERRED BY ADOPTING A PRIOR JUDGE'S OPINION THAT WAS NOT ENTERED INTO EVIDENCE.
B. DYFS FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT S.B-G[.] 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.
John raises the following issues for our consideration:
POINT 1 : THE TRIAL COURT ERRED IN RULING THAT [JOHN'S] PARENTAL RIGHTS SHOULD BE TERMINATED AS THE STATE FAILED TO PROVE, BY THE REQUIRED CLEAR AND CONVINCING EVIDENCE, THAT TERMINATION OF THE PARENTAL RIGHTS WAS APPROPRIATE.After reviewing the record and applying the appropriate standard of review, we discern no reason to disturb the Family Part's decision, as substantial and credible evidence in the record amply supports it.
A. THE CHILD'S HEALTH AND DEVELOPMENT WAS NOT ENDANGERED BY THE PARENTAL RELATIONSHIP.
B. [JOHN] WAS ABLE AND WILLING TO ELIMINATE THE HARM FACING THE CHILD AND WAS ABLE AND WILLING TO PROVIDE A SAFE AND STABLE HOME FOR THE CHILD.
C. THE DIVISION DID NOT MAKE REASONABLE EFFORTS TO PROVIDE SERVICES TO CORRECT THE CIRCUMSTANCES WHICH LED TO THE CHILD'S PLACEMENT OUTSIDE THE HOME.
D. TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
Our scope of review in a termination of parental rights case is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Our Supreme Court recently confirmed this standard:
Our task as an appellate court is to determine whether the decision of the family
court in terminating parental rights is supported by substantial and credible evidence on the record. We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family . . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[F.M., supra, slip op. at 34-35 (internal quotation marks and citations omitted).]
A reviewing court must defer to the family court's findings of fact. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). We also defer substantially to that court's assessment of expert evaluations and credibility determinations. In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). "[I]n reviewing the factual findings and conclusions of a trial judge, we are obliged to accord deference to the . . . court's credibility determinations] and the judge's 'feel of the case' based upon [the court's] opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (quoting Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)), certif. denied, 190 N.J. 257 (2007). We also recognize the special expertise of those judges assigned to the Family Part. Cesare, supra, 154 N.J. at 412-13.
When seeking termination of parental rights under N.J.S.A. 30:4C-15.1(a), the Division has the burden of establishing the following factors by clear and convincing proof: (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; (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.
The four subsections of the statute are "not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The considerations involved are extremely fact sensitive and require particularized evidence that addresses the specific circumstances present in each case. Ibid.
Actual harm need not be demonstrated in order for the first factor to be satisfied. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). The test is whether Ian's safety, health, or development will be endangered in the future and whether his parents are or will be able to eliminate harm to the child. Ibid. This factor can be satisfied by establishing that the parent suffers from a mental illness that renders him or her unable to parent, or evidence that the parent would not have the mental status sufficient to eliminate the risk of future harm to the child. Id. at 439-440; see also In re Guardianship of R.G. and F., 155 N.J. Super. 186, 194 (App. Div. 1977) (holding that the mental illnesses suffered by the parents created an environment in which they were unable to adequately care for and raise their children, thus causing them harm, despite the absence of physical abuse or neglect). Such evidence clearly exists here. The focus of the second statutory factor is whether the parents have cured and overcome the initial harm that endangered the child, and whether the parents are able to prevent future harm. K.H.O, supra, 161 N.J. at 348.This factor may also be satisfied if " 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, slip op. at 39 (alterations in original) (quoting K.H.O., supra, 161 N.J. at 363). Defendants' failure to take needed medications and general refusal to deal with their emotional and psychological issues demonstrate an unwillingness to eliminate any harm to Ian. The record reflects the couple's failure to take advantage of the wide variety of services provided by the Division over its many years of involvement with the family. In addition, defendants were shown to be unable to mitigate the serious and enduring harm Ian may suffer if removed from his resource family, and the delay of permanent placement clearly will add to the child's harm.
Factor three "requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." Id. at 40 (quoting N.J.S.A. 30:4C-15.1(a)(3)). "'The diligence of [the Division's] efforts on behalf of a parent is not measured by' whether those efforts were successful." Ibid. (quoting D.M.H., supra, 161 N.J. at 393). "Thus, the parent's failure to become a caretaker for his children is not determinative of the sufficiency of [the Division's] efforts at family reunification. These efforts must be assessed against the standard of adequacy in light of all the circumstances of a given case." D.M.H., supra, 161 N.J. at 393. Notwithstanding the Division's diligent efforts to provide services to defendants, their mental illnesses and emotional deficits render both incapable of benefiting from those services. There are no available alternatives to termination.
"'[T]o satisfy the fourth prong, the State should offer testimony of a well-qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, supra, slip op. at 41-42 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is '[a] child's need for permanency.'" Id. at 42 (quoting M.M., supra, 189 N.J. at 281). "Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security . . . ." Ibid. The uncontroverted expert evidence in this case established that Ian had been with his resource family since birth and any attachment to defendants was attenuated. On the other hand, Ian enjoyed a positive and secure attachment to his foster parents, which, if severed, would likely cause him serious and enduring harm that defendants cannot mitigate.
Susan's claim that Judge Johnson failed to make adequate factual findings because he improperly relied upon the conclusions of Judge Mendez relating to Susan's other child is belied by the totality of the record. Although Judge Johnson made reference to that earlier proceeding, we are satisfied that his ultimate findings and conclusions were based upon the clear and convincing evidence presented by the Division against both parents in this instance.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
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CLERK OF THE APPELLATE DIVISION