Opinion
DOCKET NO. A-1162-11T4
02-12-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. Q.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF A.P. & Q.P., JR., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Sean Lardner, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Waugh, and St. John.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-32-10.
Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sharon A. Walli, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Sean Lardner, Designated Counsel, on the brief). PER CURIAM
Defendant Q.P. (Quin) appeals the order of the Family Part terminating parental rights to his two children, arguing that plaintiff Division of Youth and Family Services (Division) failed to establish prongs three and four of the best interests test established by N.J.S.A. 30:4C-15.1(a). We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
Quin is the biological father of A.P. (Alice), who was born in March 2008, and Q.P., Jr. (Junior), who was born in August 2009. The children's mother is T.C. (Tracey). Her parental rights were terminated in a default judgment, which is not involved in this appeal.
The Division became involved with the family in March 2008, when it received a referral from Trinitas Regional Medical Center (Trinitas) in Elizabeth. According to the referral, Alice tested positive for cocaine at birth. Tracey tested positive for cocaine and opiates. A Division caseworker met with Tracey at the hospital. Tracey told the worker that she had received little prenatal care, and admitted to using both cocaine and opiates during her pregnancy. Quin, who was also interviewed at Trinitas, informed the Division worker that he was not aware that Tracey had used drugs during her pregnancy. He denied using drugs himself, and suggested his mother, Sarah, as a possible resource for Alice.
The Division substantiated Tracey for neglect because of her admission that she utilized cocaine and opiates while pregnant, resulting in Alice testing positive for cocaine at birth. The Division referred Tracey to Project Sustain, an inpatient drug-treatment program that would allow Alice to remain with Tracey while receiving treatment.
Project Sustain provided Tracey with individual therapy, drug counseling, and parenting skills classes. A May 5 report from Project Sustain stated that Tracey was compliant with all services, had perfect attendance, and had produced clean urine tests. On June 2, however, the Division received a referral from the YMCA at which Tracey resided that she had left Project Sustain, taking Alice with her. Her departure from the program was confirmed in a June 18 report from Project Sustain.
On June 19, the Division initiated a search for Tracey and Alice. On August 12, a Division caseworker met with Quin, who was then incarcerated in the Atlantic County jail, to determine if he knew their whereabouts. Quin initially refused to divulge any information, expressing displeasure with the idea the Division might take custody of his child. He subsequently told the caseworker to contact Sarah about Alice's location. When asked about relatives or family friends that could care for Alice until Tracey completed substance abuse treatment, Quin named Sarah and his sister.
The Division requested the Philadelphia County Children and Families Department (PCCFD) to contact Sarah. On August 18, PCCFD reported that Sarah had not seen Tracey for a while, but that Alice had stayed with her in Philadelphia for two weeks in July. On August 28, a Division caseworker contacted Sarah directly. Sarah told the worker that she had spoken to Tracey the day before, that Alice was safe, and that Tracey was in a drug treatment program. She would not disclose any additional information.
The Division did not investigate Quin's sister.
On September 13, the Division received a referral from the emergency room at Atlantic Care Regional Medical Center that Alice, who was then six months old, had been brought to the hospital by a babysitter because her "urine smelled concentrated and [she] was not drinking." According to the babysitter, Alice had been left in her care one or two days earlier. The sitter had spoken to Tracey twice that day, but said that Tracey "did not give any indication that she was coming back to get the baby."
A Division caseworker met with the babysitter at the hospital and learned that Tracey and Alice had been staying with her for a month and that Tracey was out of the house much of the time. The babysitter also told the caseworker that Alice had not had formula in two days because there was no money to buy it. She had been feeding Alice milk and cereal. The babysitter also told the caseworker that Tracey was engaged in prostitution. The Division initiated an emergency removal of Alice.
On September 16, the Division sought and was granted care, custody, and supervision of Alice. On October 9, the Family Part ordered Tracey and Quin to submit to psychological and substance abuse evaluations and to attend parenting skills classes. Tracey was also ordered to submit to an in-court urine screen and was permitted to have supervised visits with Alice. Quin's visits were suspended while he was incarcerated. On the same date, Tracey stipulated that she had used cocaine during the final week of her pregnancy, that she was non-compliant with Project Sustain, and that she had left Alice with a babysitter for an extended period of time without providing details of her return.
The substance abuse evaluations took place in October. Quin completed a substance abuse evaluation at the Atlantic County jail. He admitted to marijuana use beginning at age eleven, but asserted that he had stopped using it more than four years earlier. Tracey reported that she had used cocaine and heroin in the past and began using drugs at age twenty-six. She was referred to an outpatient program at Trinitas to address her opioid and cocaine abuse. At Tracey's intake appointment on November 13, 2008, she tested positive for cocaine and opiates.
Robert Kanen, Psy.D., evaluated Tracey in October. He concluded that she showed evidence of cognitive impairment and that she was functioning at the high end of mild mental retardation to the low end of the borderline range of intelligence. He also determined that she was not mentally ill. He noted that, although she showed signs of drug abuse, she was in "strong denial" that she had a drug problem. Based upon his evaluation, Kanen concluded that Tracey had "severe parenting deficits" and could not provide Alice with a permanent, safe, and secure home at that time.
Kanen evaluated Quin in November, following his release from jail. Quin reported that his first involvement with child protective services was at age seven, when his sister called the police after his mother had beaten both of them. He further reported that his mother would beat him anytime he did anything wrong. Quin also told Kanen about his history of incarceration and drug dealing, and that he was currently unemployed. Kanen concluded Quin had a borderline level of intelligence, meaning he was functioning above six percent of the population and below ninety-four percent. He also concluded that Quin was "severely depressed and anxious," showing evidence of "longstanding personality problems." In Kanen's opinion, Quin could not adequately function in daily life and was not capable of providing Alice with a permanent, safe, and secure home. He also opined that Quin's emotional instability was unlikely to change in the foreseeable future.
In December, a family therapist with the Powell Group, an organization that was providing in-home parenting skills classes to Quin and Tracey, reported that Quin felt corporal punishment was an appropriate means of discipline and that he was argumentative and defensive, but appeared open to suggestions. The therapist recommended that Quin and Tracey receive individual counseling in addition to parenting classes.
Also in December, the Division was informed by the Child Protection Substance Abuse Initiative (CPSAI) caseworker that Tracey had failed to appear for multiple substance abuse treatment intake appointments, and her CPSAI case was closed. It also received copies of a letter from the Powell Group family therapist to both parents, informing them of a missed in-home parenting skills session and their failure to reschedule.
At the January 2009 compliance review hearing, the judge ordered additional substance abuse treatment, counseling, parenting skills classes, and random drug screenings for Tracey. He ordered Quin to submit to a psychiatric evaluation, random drug screenings, counseling with an anger management component, and parenting skills classes. The judge also ordered the Division to assess Sarah as a possible placement for Alice. Both Tracey and Quin were permitted weekly supervised visits with Alice. However, Quin left the courthouse without submitting to a court-ordered urine screen.
In February, the Division sent a request for an interstate study of Sarah's home to its counterpart in Pennsylvania. The letter informed the agency that the Division's goal was reunification, but that it wanted to have Sarah assessed as a potential foster parent in the event reunification was not possible.
In April, the Division received a report from the Powell Group therapist that the parents were no longer complying with services. The letter stated the parents had missed several in-home sessions, and that they appeared "manipulative, not motivated for treatment, and are suffering from a variety of untreated or un-resolved psychological issues." The therapist opined that neither parent would be able to provide Alice with a permanent, safe, and secure home. He further warned against any expansion of their visitation rights and recommended all visits remain supervised by the Division.
In May, the Division sent a rule-out letter to a male relative suggested as a potential resource for Alice because of a medical condition that the relative felt would prevent him from caring for her. In July, the Division sent a rule-out letter to a female relative, who had a child of her own and another on the way, who told the Division that she could not act as a resource.
At the April compliance review hearing, the judge ordered Tracey to comply with substance abuse treatment, parenting skills classes, and counseling with an anger management component. He ordered Quin to comply with random drug screenings, parenting skills classes, and counseling with an anger management component. In addition, the judge ruled that he would draw a negative inference from Quin's failure to submit to an in-court urine screen at the previous compliance hearing. Quin submitted to a drug screen following the April hearing, which yielded positive results for THC, the primary psychoactive component of marijuana. In April and July, the Division recommended that Tracey attend a substance abuse program, but she did not do so. Both Quin and Tracey repeatedly missed visits with Alice during spring 2009.
In July, a therapist at the Powell Group informed the Division that neither Tracey nor Quin had been compliant with his efforts to re-initiate in-home parenting skills classes. Quin had informed the therapist that he did not want to have classes in his home because he did not want his roommate to know about his involvement with the Division. The therapist again informed the Division that, in his opinion, neither parent was likely to be able to provide Alice with a permanent, safe, and secure home.
The July compliance review hearing was attended only by Quin. The judge ordered him to participate in substance abuse treatment as well as the services previously ordered. Quin again left the court without submitting to a court-ordered drug screening. The judge again ordered the Division to assess Sarah as a potential placement for Alice.
On August 28, the Division received a referral from a social worker at Trinitas that Tracey had given birth to Junior and that she had admitted to using heroin and cocaine while pregnant. A Division caseworker met with Tracey at the hospital. Tracey admitted to using both heroin and cocaine while pregnant, having last used drugs the day before she gave birth to Junior. The Division substantiated Tracey for neglect, based on drug use during pregnancy. Junior was transferred to Newark Beth Israel Hospital because he had an increased heart rate and was subsequently diagnosed with diabetes.
At the September compliance review hearing, the judge ordered the same services previously ordered for both parents. Quin tested positive for THC, and Tracey tested positive for methamphetamine, cocaine, and morphine.
On the same day, at a permanency hearing held concerning Alice, the Division presented its plan to terminate parental rights followed by adoption by her foster parent. The judge approved the Division's plan with respect to both Quin and Tracey.
A report received in September from the intervention clinician who supervised Tracey and Quin's visits with Alice stated that Alice clung to the clinician during the first visit she observed. During the second visit, Alice avoided interaction with Quin, who in turn was hesitant to interact with her. During the fifth visit, Quin brought Tracey with him. The clinician noted that Tracey appeared to be under the influence of drugs. Alice immediately went to Tracey, but after several minutes she sought comfort from the clinician.
In September, the Division amended its complaint to add Junior and was granted care, custody, and supervision of him. Junior was placed in the same foster home as his sister.
During September, the Division sent a rule-out letter to Sarah, informing her she would not be considered as a foster parent because she failed to comply with Pennsylvania's request that she secure suitable housing. She was, however, given the opportunity to contact the Division if her circumstances changed.
At the September return date for the Division's order to show cause with respect to Junior, the judge ordered both parents to submit to the same services that were ordered at previous hearings regarding Alice. In addition, both parents were permitted supervised visitation with Junior, as well as Alice. The Division was again ordered to assess Sarah as a potential placement.
Quin's October 13 visit with Alice and Junior was canceled because of his failure to confirm the visit twenty-four hours in advance. The supervisor informed the Division that, when informed of the cancellation, Quin "became irate and verbally aggressive." He claimed that he had never received a letter informing him that supervised visitation would begin, but confirmed that the letter containing the visitation schedule had been sent to the correct address. Quin also missed his October 27 visit with the children. The visitation supervisor reported that Quin did not respect program rules during his November visitations, that he did not initiate contact with Alice unless encouraged to do so, and that Alice appeared very reluctant to have any contact with Quin.
The Division filed a guardianship complaint involving both children. It served Quin at his November 17 supervised visitation session. Quin and Sarah told the division caseworker at the session that Tracey was in jail, but they did not know why. The worker reported that, during the visit, Alice did not want to go near Quin, that when he called her she turned away and moved closer to the caseworker, and that she only interacted with him when he coaxed her with cookies, juice, or toys. Quin attended three visits with the children in November.
The Title Nine litigation was terminated in December because the Division had filed its complaint seeking to terminate parental rights. At the December 14 case management conference, the judge ordered Quin, Tracey, and Sarah to submit to psychological and bonding evaluations. A drug test revealed that Quin was positive for THC. He was referred to another substance abuse evaluation, which he did not attend.
N.J.S.A. 9:6-8.21 to -8.73.
The Division again requested that its counterpart in Pennsylvania investigate Sarah as a possible placement for the children. The letter noted that, although Sarah had been ruled out previously due to her living arrangements, the Division had been informed that she had moved. It asked the Pennsylvania agency to evaluate her new apartment and conduct a criminal background check. The Division also requested its counterpart to obtain a statement from Sarah that she would not utilize corporal punishment with the children if they were placed with her.
On December 28, the visitation supervisor from Family & Children's Services (FAPC) informed the Division that FAPC would no longer supervise visits between Quin and the children because of Quin's irate, aggressive, and inappropriate behavior. The supervisor further explained that Tracey's visitations had been terminated because recently she had only attended one session and had not had any subsequent contact with the caseworker. During a scheduled visit at the Division office on January 12, 2010, the Division caseworker offered Quin the option of having supervised visits at Tri-City in East Orange, but he declined due to "personal problems" with the "city."
In January 2010, the Division sent another rule-out letter to Sarah. The Division determined, "[b]ased on the circumstances of the children, . . . that it would be in the best interest of the children to remain in their current placement, because the children are residing with their current resource parents for over two years, they are bonded to them, and had limited contact with [Sarah]." In April, the Division received a letter from its counterpart in Pennsylvania explaining that Sarah had withdrawn her request to be considered as a possible placement for the children "due to unforeseen circumstances."
At the March case management conference, attended only by Quin, the judge ordered a bonding evaluation between the children and Sarah, provided she found employment. The judge also ordered the Division to assess Quin's godmother as a possible placement for the children. The judge entered default against Tracey.
The Division sent a letter to the godmother on March 8, informing her that Quin had given the Division her name as a possible placement for the children. The letter informed her that she should contact the Division if she was interested in being considered as a placement for the children and that her failure to do so would be interpreted as an unwillingness to assist. At the subsequent guardianship trial, the godmother denied having received the letter, but acknowledged that it had been sent to the right address. In addition, she denied receiving the Division's subsequent rule-out letter.
The letter stated the godmother was being ruled out because her home could not pass inspection.
Quin missed his psychiatric evaluation in May because he had been incarcerated for possession and distribution of controlled dangerous substances on May 10. He remained incarcerated on those charges as of the date of the termination trial.
At the June case management conference, the judge temporarily suspended Quin's visitation due to his incarceration. Quin's attorney requested that a third assessment of Sarah be conducted because she had found employment.
Later in June, Quin's attorney requested an emergent hearing because Sarah wanted visitation with the children. The judge granted the request, instructing the Division to arrange biweekly visits between Sarah and the children, which it did.
At the September 7 permanency hearing and case management conference, the judge approved the Division's plan to terminate Quin's and Tracey's parental rights to Alice and Junior, to be followed by adoption by the current caretaker, but with a concurrent plan to place the children with Sarah if the interstate evaluation was approved.
At the December case management conference, at which Quin appeared, the Division presented its plan to go forward with the termination of the parents' rights to both children, followed by the children's adoption by their foster mother. The Division and the Law Guardian agreed that the concurrent plan to have the children placed with Sarah was no longer viable because her third interstate evaluation had yet to be completed and the children had been with their foster mother almost their entire lives. Over objections from the Division and Law Guardian, the judge granted Quin's request to have his children visit him in jail. The judge explained that he wanted the Division to make its best efforts to continue a bond between Quin and the children.
The children visited Quin in jail in January 2011. Alice again exhibited hesitancy and indifference in interacting with Quin. Junior initially began to cry when his father placed him on his lap, but later became comfortable with his father carrying him.
The Division received the completed interstate evaluation of Sarah in February. It recommended against placing the children with her. The report noted that Sarah's home passed safety requirements on October 14, 2010, and that Sarah cooperated with everything that was asked of her. The evaluator, however, concluded that she could not recommend placing the children with Sarah after it became clear Sarah gave inconsistent information to different evaluators. For example, with regard to her employment at Kentucky Fried Chicken, Sarah told a New Jersey psychologist that she left due to medical reasons but told the Pennsylvania evaluator that she was asked to leave after an altercation with a colleague. There were also inconsistencies in her employment and educational history, and with respect to her drug use. Although the evaluator believed that Sarah thought the information she gave was true, the inconsistencies in her reporting "hamper[ed] her ability to look more realistically at her life and how her actions and decisions impacted her family." Ultimately, the evaluator concluded that she could not "vouch for [Sarah's] continued stability in employment or in her relationships." In addition, the evaluator did "not feel comfortable that [Sarah] would make an appropriate decision for her grandchildren regarding when her son could safely take care of his children."
The guardianship trial began on March 23. Quin was present during the proceedings. The Division presented two witnesses: a Division caseworker and Kanen.
Kanen testified that Quin had serious parenting deficits due to his history of substance abuse, anti-social behavior, and difficulty with mood regulation. At the time of his initial evaluation, Kanen had recommended parenting classes, an evaluation for medication to address his mood issues, individual counseling, substance abuse treatment, and that Quin find employment. Kanen further testified that he conducted another psychological evaluation of Quin in January 2011, while Quin was incarcerated. He found improvement in Quin's cognitive skills, but found Quin continued "to show mood problems," and that he was "depressed, . . . irritable, prone to hostility, impulsivity, [and] erratic behavior." Kanen concluded that Quin's prognosis for change was poor because he had been suffering from the same personality and behavioral issues since adolescence and had made "no significant attempt to try to develop a more stable lifestyle."
Based on his January 2010 bonding evaluation of Quin and Alice, Kanen testified that the bond between them was non- existent or severely impaired. He explained that when Quin first smiled at Alice, she began to whimper and did not want to go near him. Although Alice gradually settled down and was clinging to Quin during portions of the session, Kanen noted that it took about thirty-five minutes for her to smile in Quin's presence and that she was "very insecure" and "not comfortable." He observed that Alice appeared anxious, distressed, and scared during the session. Kanen testified that Alice saw a Division caseworker down the hall and attempted to leave the room to be with the worker because she "did not want to be in the room" with Quin. Kanen opined that Alice "would not suffer serious and enduring harm if she were permanently separated from [Quin]."
Kanen also testified that, during a second bonding evaluation, Alice burst into tears when she saw Quin and could not be separated from her foster mother. Both children were present for the second evaluation, and Kanen observed Quin to be "insensitive," "harsh," and "angry" in response to the children's demands. At the end of that evaluation, Kanen concluded that Quin had no real bond to either Alice or Junior. In addition, he opined that the children would not suffer serious and enduring harm if they were permanently separated from Quin. He further opined that Quin "would be overwhelmed by the demands . . . of two children and that his problems would come out very quickly in the form of irritability, impatience, [and] unreliability."
Kanen also testified about the results of his psychological evaluation of Sarah. Her statement to Kanen that none of her children had involvement with the Division while she was raising them was inconsistent with Quin's self-report of his own Division involvement. Kanen expressed concern about Sarah's ability to protect the children from their parents, particularly Quin, because she stated she wanted Quin to help raise the children. Kanen was concerned that "if she got the children . . . her son would show up more and be more involved than he should be given the way he was functioning." Kanen did not, however, find that Sarah displayed any severe parenting deficits.
Kanen next testified to the results of his January 2010 bonding evaluation with Sarah and Alice. He observed that, as soon as Alice saw Sarah, she began to cry and asked for her foster mother, in response to which Sarah became irritated. He opined that although Alice knew Sarah as her grandmother, she was not attached to Sarah. Kanen also testified about his August 2010 bonding evaluation of Sarah with both Alice and Junior. He noted that Sarah was harsh and critical towards the children at the beginning of the evaluation, and that it appeared difficult for Sarah to "turn off" her critical tone. For instance, Sarah scolded Alice, who was two years and five months old at the time, for not calling her on the phone, although Alice was too young to do so. Kanen concluded there was no evidence of an attachment or bond between the children and Sarah. He further concluded that the children did not view her as a parental figure and "would not suffer serious and enduring harm if their contact [with Sarah] was ended."
Finally, Kanen testified about his two bonding evaluations with the children's foster mother, the first with Alice and the second with Alice and Junior. The foster mother is a college-educated professional who has maintained full-time employment and a stable living situation. Kanen observed that Alice perceived her foster mother to be her mother and was bonded and attached to her. Kanen noted that the foster mother was sensitive to the fact that Alice was born drug-addicted and is therefore at risk for hyperactivity and learning disabilities. The foster mother had started Alice in speech therapy, and actively stimulated Alice's language development during the interactions that Kanen observed. He concluded that both Alice and Junior had a bond with their foster parent "based on the day-to-day provision of comfort, of food, of affection, of nurturing, of positive interactions, . . . meeting their needs."
Kanen opined that removing the children from their foster mother's care would create a serious risk of harm because she was the only person who had "provided them with . . . consistent maternal care and nurturing." He testified that whatever progress the children had made could be lost if they were removed from her care.
Quin called two witnesses: Sarah and his godmother. Sarah testified about her involvement with the Division and its Pennsylvania counterpart. Quin's godmother testified that she had offered herself as a resource for the children, but that a caseworker tried to discourage her. She also testified that she attempted to contact the Division on several occasions, and never received a rule-out letter from the Division.
On September 20, the judge delivered an oral opinion. He found that neither Quin nor Tracey was able to provide a safe, healthy home for the children. He further found that Tracey had stopped earlier compliance and had not visited the children in over a year and a half. He noted that Quin acknowledged he could not care for his children because of his drug use, but that he was attempting to designate who would care for the children. The judge found the evidence
overwhelmingly clear and convincing that separating the child from the resource parent at this time would be harmful to the child and it [was] certainly overwhelmingly proved that neither . . . biological parent is able to eliminate the harm that caused the Division to take custody of the children. They just haven't dealt with the problems, [such as] the longstanding drug abuse . . . .The judge further found that he could not "envision a case where the Division did more to attempt in good faith to find alternatives, to find another path outside of termination of parental rights." He noted that the Division had arranged for Sarah's home to be evaluated on three occasions, in addition to offering numerous services as detailed in his findings of fact. Finally, the judge found that it would be harmful to separate the children from their foster mother, and would not do more harm than good to terminate parental rights.
II.
Quin raises the following issues on appeal:
TERMINATION OF [QUIN'S] PARENTAL RIGHTS WAS NOT WARRANTED UNDER THE BEST "INTEREST TEST" OF N.J.S.A. [30:4C-15.1(a)].
Before addressing those issues, we outline the general legal principles that govern our review of judgments terminating parental rights.POINT I: THE COURT BELOW ERRED IN FINDING THAT THE DIVISION EXERCISED REASONABLE EFFORTS TO LOCATE AND APPROVE RELATIVES FOR PLACEMENT AND FAILED TO ADEQUATELY CONSIDER ALTERNATIVES TO
TERMINATION OF [QUIN'S] PARENTAL RIGHTS.
POINT II: THE COURT BELOW ERRED IN FINDING THAT TERMINATION WOULD NOT DO MORE HARM THAN GOOD AND THE DIVISION FAILED TO SHOW THAT A DELAY OF PERMANENT PLACEMENT WOULD CAUSE OR ADD TO THE HARM.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)) (internal quotation mark omitted); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. Ibid. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where 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." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty Inc. v. BMW of N. Am. Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
Parents have a constitutionally-protected right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165-66 (2010); E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must institute "a termination proceeding when such action would be in the best interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; J.N.H., supra, 172 N.J. at 464; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title 30 in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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.
(N.J.S.A. 30:4C-15.1(a).]
These four factors are not independent of each other; rather, they are "interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing K.H.O., supra, 161 N.J. at 348), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (internal quotation marks omitted).
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence that "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1(a)(1). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." A.W., supra, 103 N.J. at 605. Accordingly, the "absence of physical abuse or neglect is not conclusive"; indeed, serious emotional and developmental injury should be regarded as injury to the child. Ibid. (internal quotation marks omitted). Moreover, trial courts must consider the potential psychological damage that may result from reunification with a parent. Ibid. "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977); see also In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) ("Serious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize the termination of parental rights.").
Under the second prong of the best interests standard, a trial court is required to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. A.W., supra, 103 N.J. at 607. "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid. This prong may be satisfied "by 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, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. This harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). The second prong focuses on parental unfitness and its proofs overlap with the proofs supporting the first prong. In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999).
Under the third prong of the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" that necessitated removal and placement of the child in foster case. N.J.S.A. 30:4C-15.1(a)(3); K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and visitation facilitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H., supra, 161 N.J. at 390. The services provided to meet the child's need for permanency and the parent's right to reunification must be "coordinated" and must have a "realistic potential" to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 n.10 (App. Div. 2002) (quoting N.J.A.C. 10:133-1.3).
The third prong also requires that the court consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child to adulthood, the court may award kinship legal guardianship to that relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 87 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 88 (citing N.J.S.A. 3B:12A-6(d)(3)); see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
Under the last prong of the best interests standard, 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 overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [her] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (App. Div. 2005); see K.L.F., supra, 129 N.J. at 44-45.
In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parent and foster parent. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent and, in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. The Division "must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
III.
Because Quin's focus on appeal relates to the third and fourth prongs of the best interests test, we focus our discussion on those issues. We note, however, that the record before us fully supports the judge's findings with respect to the first and second prongs.
A.
Quin argues that the judge erred in finding that the Division satisfied the third prong, arguing primarily that it should have placed the children with his mother, Sarah. We disagree.
The services rendered by the Division, pursuant to prong three, should be focused on reunifying the family. See D.M.H., supra, 161 N.J. at 386-87. What constitutes reasonable services is determined on a case-by-case basis. Id. at 390. Examples of such services include "enlisting the assistance of relatives, providing direct services or providing referrals to community service providers." Id. at 387. Under this prong, it must be shown that the Division sought to "encourage, foster, and maintain the bond between the parent and the child as a basis for the reunification of the family." Id. at 390. In addition, the Division
must promote and assist in visitation and keep the parent informed of the child's progress in foster care. [The Division] should also inform the parent of the necessary or appropriate measures he or she should pursue in order to . . . become an effective caretaker and regain custody of his or her [child].Ultimately, however, "that obligation does not require that the Division remedy the parent's problem that caused the child to enter foster care." I.S., supra, 202 N.J. at 211 (LaVecchia, J., dissenting). In other words, "[t]he parent must bear personal responsibility for that fix. . . . When behavioral changes are required, the parent must shoulder the brunt of changing, and in a decisive and meaningful way." Ibid.
[Ibid.]
The first provision of this prong requires the Division to provide reasonable services to correct the circumstances that necessitated the Division's involvement and that are aimed at reunification. N.J.S.A. 30:4C-15.1(a)(3). As detailed in the facts outlined above, the Division referred both Quin and Tracey to programs that they either did not participate in or did not benefit from. It is quite clear from the record that Quin was not able to parent his children and that he is not likely to be able to do so in the foreseeable future.
Quin's primary argument is that the Division did not adequately consider alternatives to termination of his parental rights through placement with family members. In particular, Quin points to the Division's decision to send Sarah a rule-out letter prior to getting a response to the third interstate request for an evaluation. To the extent Quin is arguing that his mother should have been awarded kinship-legal-guardian status, that approach is not warranted when there is a viable adoption available. S.V., supra, 362 N.J. Super. at 87-88.
The Division considered several potential relative placements for the children, as outlined above, and acted diligently in seeking multiple evaluations of Sarah. Quin argues that his sister, who at the time of this litigation was unemployed and caring for her three children, should also have been considered by the Division as an alternative. Quin relies on New Jersey Division of Youth & Family Services v. K.L.W., 419 N.J. Super. 568, 581-82 (App. Div. 2011) in urging us to reverse. In K.L.W., we reversed because the Division had failed to investigate maternal grandparents who were already caring for the minor's siblings, concluding that the judge consequently lacked the requisite information to make an informed decision on the child's best interests. Id. at 582. We held "the Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative known to the Division, especially one whom the Division knows has custody of the child's siblings." Ibid.
In this case, we are satisfied that the Division investigated all plausible resources. Although the Division did not separately investigate Quin's sister, the report prepared by the Division's counterpart in Pennsylvania reflected that Sarah had suggested his sister as a back-up plan, but the report expressed concern with the suggestion because of his sister's circumstances at the time, unemployed with three children of her own. In addition, Sarah told the investigator that the sister had made bad life decisions resulting in her current circumstances. The report included sufficient information for the trial judge to evaluate the sister's potential as a resource and to determine whether further investigation was warranted.
The Division acted diligently in evaluating Sarah as a potential placement by requesting three interstate evaluations of her. The first evaluation resulted in a rule-out letter because Sarah had insufficient housing. After Sarah obtained new housing, a second interstate request was made, but Sarah withdrew because of "unforeseen circumstances." The third request resulted in a thorough report from the Division's counterpart in Pennsylvania that reflected very serious concerns with Sarah providing inconsistent information and concern that she would not adequately oversee Quin's involvement with the children if they were placed with her. In addition, Kanen testified that in his opinion, no bond existed between Sarah and the children. We conclude that the record contains substantial credible evidence that the Division gave appropriate consideration to Sarah and that she was not a viable option to adoption by the foster mother, or even for kinship legal guardianship. Consequently, we affirm the judge's ruling that the Division established prong three by clear and convincing evidence.
Although the Division had ruled Sarah out prior to receipt of the final report because of concerns about the delay, the report is unequivocal in its recommendation that the children not be placed with Sarah, and the same rule-out letter would have been sent eventually. In any event, the issues related to Sarah were raised at trial and the judge could have found against the Division on that issue had the facts so warranted. We conclude that they do not.
B.
Quin also argues that the judge erred in finding that the Division had satisfied the fourth prong, which concerns the relative harm of terminating parental rights and removing a child from a foster parent. Again, we disagree.
The important issue in addressing the fourth prong is "whether . . . the child will suffer a greater harm from the termination of ties with her natural parents than from permanent disruption of her relationship with her foster parents." I.S., supra, 202 N.J. at 181 (quoting J.N.H., supra, 172 N.J. at 478) (internal quotation mark omitted). The trial judge must base this determination on clear and convincing evidence including "testimony of a well qualified expert" who has evaluated both the child's relationship with the foster parent and the child's relationship with the biological parent. J.C., supra, 129 N.J. at 19.
The evidence in the record strongly supports the judge's determination that terminating Quin's parental rights to both children will not do more harm than good to either of them. Quin has not had a consistent presence in either child's life because both were removed very early in their lives and he has been incarcerated during a substantial part of their lives. In addition, Kanen testified that neither child had a bond with Quin, thus neither would suffer from the termination of his parental rights. In contrast, both children were bonded with their foster mother and would suffer if she were no longer in their lives.
The record also contains substantial credible evidence that the children were not bonded with Sarah, as already determined, and placement with her was not a plausible alternative to termination. Kanen opined that Sarah was not aware of Alice's developmental needs, specifically her potential for hyperactivity and learning disabilities, and thus was harsh and critical towards Alice, whereas the foster mother was very aware, encouraging, and sensitive.
For all of the reasons outlined above, we conclude that the judge's decision that the Division satisfied all four prongs of the best interests test by clear and convincing evidence is fully supported by the record and consistent with the applicable law. Consequently, we affirm the order on appeal.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION