Opinion
DOCKET NO. A-2891-15T2 DOCKET NO. A-2892-15T2
01-24-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. A.T. and B.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF J.T.B., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant B.B. (A-2891-15) (Louis W. Skinner, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant A.T. (A-2892-15) (Ruth Harrigan, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, and Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Louise M. Cho, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-42-15. Joseph E. Krakora, Public Defender, attorney for appellant B.B. (A-2891-15) (Louis W. Skinner, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant A.T. (A-2892-15) (Ruth Harrigan, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, and Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Louise M. Cho, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants B.B. and A.T. appeal from the February 26, 2016 Family Part order terminating their parental rights to their daughter, J.T.B., who was four years old at the time of the trial. We affirm, substantially for the reasons stated in the trial judge's oral opinion.
The following facts are gleaned from the trial record and the documents admitted into evidence. The child was born in November 2011. She was not seen by a physician after birth until March 28, 2014. The well-baby visit was a collateral consequence of plaintiff Division of Child Protection and Permanency's (Division) investigation of an anonymous referral. The caller had alleged that A.T., J.T.B.'s mother, had left the then two-and-a-half-year-old child unsupervised in the hallway of her apartment building for at least an hour. Additionally, it was reported that A.T. and B.B., the father, used heroin and Percocet on a daily basis, sold drugs from their home, and that B.B. had physically abused A.T. and J.T.B.
When interviewed that day by a Division worker, A.T. admitted that she used Percocet for pain management, but denied selling drugs, or that B.B. had physically harmed J.T.B. The worker observed marks over the child's body, however, that "looked like scratches." A.T. claimed the marks resulted from the child scratching bedbugs during the night, but hospital records introduced into evidence indicated the child had scratches in areas she could not have reached herself.
During this initial meeting with A.T., an unidentified man came to the door of the apartment and asked if he could "get some stuff." A.T. told him B.B. was not home and that he should return later. A.T. denied knowing the man's identity or anything about what he wanted.
Following the interview, the child was taken for a medical evaluation, and A.T. then admitted that J.T.B. had not been to a doctor since she was born. The child was placed with her paternal grandfather after a Dodd removal. Eventually, that placement ended because of issues with the paternal grandfather's partner, and the child was moved to the home of B.B.'s paternal great aunt.
A Dodd removal is an emergency removal of a child which does not require a court order. N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 26 n.11 (2011) (citing N.J.S.A. 9:6-8.21 to -8.82). --------
J.T.B. required extensive dental work, including surgery. She has received behavioral therapy and occupational therapy. She initially suffered from significant tantrums in her current placement but has now stabilized. Her resource parent, the paternal great-aunt, wishes to adopt.
B.B. and A.T. did not appear for scheduled psychological evaluations during either the Title 9 proceedings or the guardianship action. B.B. did not comply with scheduled drug evaluations. From the date of J.T.B.'s removal in March 2014, to the date of the Family Part judge's guardianship decision on February 26, 2016, B.B. has rarely seen J.T.B.
A.T.'s April 28, 2014 drug screen found benzodiazepines, opiates, and buprenorphine in her system. Despite being recommended to participate, she has not engaged in any drug treatment.
During the years following removal, both parents have been intermittently incarcerated, homeless, and chronically unemployed. Both parents seemed to have limited interest in the guardianship litigation. No evidence was presented on their behalf during the guardianship trial. The child is currently thriving in the resource home.
No bonding evaluations were conducted. Generally, bonding evaluations should be conducted prior to termination of parental rights. See N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 531, 533 (App. Div. 2006) (finding the evidence in support of termination insufficient where bonding evaluations had not been conducted). However, as the trial judge commented, the Division struggled to stay in touch with the parents, at times losing contact with one or the other for months. The judge further noted that, even when the Division was able to contact the parents, they both failed to appear for psychological evaluations despite the Division's multiple reminders and reschedulings.
The child has seen her father perhaps half a dozen times since removal; she has seen her mother more frequently, although A.T. also failed to appear for months. The visits that have taken place have not gone smoothly, as A.T. did not always interact with J.T.B. while with her child. At one visit in May 2014, until the worker stopped her, A.T. attempted to teach the toddler to say "F— you, b—."
Initially, B.B. made an identified surrender to his father. When the Division found the father's home to be problematic, B.B. vacated the surrender. The judge noted that the parents agreed, initially, with the child's placement with the paternal great aunt. The trial judge found the Division had proven all four prongs of the best interest test, N.J.S.A. 30:4C-15.1(a), and therefore held that termination of parental rights was in the child's best interest.
On appeal, the parties raise the following points of error:
B.B.
POINT I
THE DIVISION FAILED TO PROVE THE FOUR PRONGS OF THE BEST INTEREST TEST OF N.J.S.A. 30:4c-15.1a.
A. The Court Below Erred In Finding Sufficient Credible Evidence In The Record To Support The Conclusion That The Child's Safety, Health Or Development Has Been Or Will Continue To Be Endangered By The Continuation Of The Parental Relationship.
B. The Court Below Erred In Finding Sufficient Evidence In The Record To Support The Conclusion B.B. Is Unwilling Or Unable To Eliminate The Harm Facing The Child Or Provide A Safe And Stable Home.
C. The Court Below Erred In Not Advising Whether KLG Was An Appropriate Alternative To Termination Of B.B.'S Parental Rights.
D. The Court Below Erred In Finding That Termination Would Not Do More Harm Than Good.
A.T.
POINT I: THE TRIAL COURT ERRED IN FINDING THAT SUBSTANTIAL CREDIBLE EVIDENCE EXISTED TO SUPPORT A DETERMINATION THAT THE FOUR PRONGS
OF THE BEST INTERESTS TEST WERE PROVEN BY CLEAR AND CONVINCING EVIDENCE.
(A) REVERSAL IS WARRANTED BECAUSE THE EVIDENCE PRESENTED DID NOT SUPPORT A FINDING THAT [J.T.B.'S] SAFETY, HEALTH OR DEVELOPMENT WAS OR WILL CONTINUE TO BE ENDANGERED BY THE PARENTAL RELATIONSHIP.
(B) THE COURT'S FINDING THAT [A.T.] WAS UNABLE OR UNWILLING TO ELIMINATE THE HARM FACING HER CHILD AND UNWILLING OR UNABLE TO PROVIDE A SAFE AND STABLE HOME ENVIRONMENT WERE ERRONEOUS.
(C) DCPP FAILED TO SATISFY THE REASONABLE EFFORTS STANDARD BECAUSE IT FAILED TO PROVIDE SERVICES THAT WERE REASONABLE UNDER ALL THE CIRCUMSTANCES AND THE COURT DID NOT EXPLORE ALTERNATIVES TO TERMINATION. (Partially Raised Below)
1. DCPP'S COOKIE CUTTER APPROACH, RATHER THAN TAILORED SERVICES, WAS NOT REASONABLE.
2. DCPP FAILED TO SATISFY THE THIRD PRONG OF THE BEST INTEREST TEST BECAUSE IT PROVIDED SERVICES THAT WERE NOT APPROPRIATE UNDER THE CIRCUMSTANCES AND THAT VIOLATED THE PROVISIONS OF THE AMERICANS WITH DISABILITIES ACT (42 U.S.C. § 12101 []).
3. THE COURT ERRED BY FINDING THAT DCPP CONSIDERED ALTERNATIVES TO TERMINATION.
4. THE DOCTRINE OF INVITED ERROR DOES NOT PRECLUDE [A.T.] FROM RAISING THE POINTS ABOVE AS GROUNDS FOR REVERSAL, AS THE ERRORS CAUSED A FUNDAMENTAL MISCARRIAGE OF JUSTICE IN A MATTER IMPLICATING [A.T.'S] CONSTITUTIONAL RIGHTS.
(D) REVERSAL IS WARRANTED BECAUSE THE EVIDENCE THAT WAS PRESENTED DID NOT SUPPORT A FINDING THAT TERMINATION OF PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.
Our review of a termination decision is limited. We defer to the Family Part judge's expertise, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
The evidence in this case consisted of testimony by the child's caseworker and documents submitted by the Division. We have reviewed the record and conclude that the judge's factual findings regarding the statutory standard were supported by the proofs presented by the Division. In light of the facts, the legal conclusions that the judge reached were unassailable. These parents faced chronic, unremitting drug and lifestyle issues, including incarceration and homelessness, that only worsened during the time the child was in the Division's care. They are unable to provide for themselves, much less provide for a young child. While the proceedings were pending, they did not maintain consistent contact with J.T.B. and seemed indifferent to the consequence of the proceedings.
Both parents assert that the trial court erred as to her findings on each of the four prongs, a claim which does not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
B.B. also contends that the court's exploration of kinship legal guardianship was inadequate. We note that kinship legal guardianship is only available when an adoption "is neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 509 (2004) (quoting N.J.S.A. 30:4C-15.1(d)(3)). Here, the child's great aunt, with whom she has lived continuously since 2014, intends to adopt her. She is willing to do so and, to date, has been able to offer J.T.B. a safe and stable home where the child is doing well. Therefore, kinship legal guardianship was not an option the judge was required to consider in making her determination as to the third prong. This point does not require discussion in a written opinion either. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION