Opinion
DOCKET NO. A-4883-14T2
07-05-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.D., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.D.D., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas W. MacLeod, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-140-15. Joseph E. Krakora, Public Defender, attorney for appellant (Thomas W. MacLeod, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Joseph H. Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant B.D. is the biological mother of J.D.D., a little girl born in May 2013. B.D. appeals from a final judgment of guardianship entered by the Family Part terminating her parental rights over her daughter. Defendant argues the Division of Child Protection and Permanency (Division) did not prove, by clear and convincing evidence, that termination of her parental rights is in J.D.D.'s best interest under the four statutory prongs established by the Legislature in N.J.S.A. 30:4C-15.1(a).
Defendant identified three men as possible candidates for being J.D.D.'s biological father. Despite repeated efforts to contact these men and compel them to submit to a paternity test, the identity of the child's biological father remains unknown.
We discern no legal basis to interfere with the Family Part's decision and affirm. These are the salient facts.
The two-day guardianship trial, presided over by Family Part Judge David B. Katz, began on May 27, 2015 and ended on June 11, 2015. The Division called two witnesses, caseworker Angel Brown and psychologist Dr. Eric Kirschner, who was admitted by Judge Katz as an expert witness in the field of psychology. Defendant testified on her own behalf after the Division completed presenting its case in chief. In response to the Division's application, Judge Katz admitted into evidence eighty-seven documents, most of which chronicled the Division's involvement with defendant and her family, and the services it offered or otherwise made available to J.D.D. and defendant.
In lieu of repeating the lengthy narrative describing the Division's history with defendant, we incorporate by reference Judge Katz's factual findings contained in his memorandum opinion dated June 17, 2015, filed in support of his final judgment of guardianship. These findings are amply supported by the testimony of the witnesses who testified in the guardianship trial. To summarize Judge Katz's findings, the record shows defendant herself was raised by foster families "and has a long history of involvement with the Division." In addition to J.D.D., defendant has given birth to three other children. She gave birth to her first child, a boy born in 1998, while she was in foster care. Her second child was a girl born 2004, and her third child was a girl born in 2006. The Family Part terminated defendant's parental rights to two of these three children before this appeal was submitted. Defendant's third child was transferred to the child's paternal grandmother, without the Division's intervention.
There is no record of defendant appealing the termination of her parental rights to her first child. However, in response to defendant's direct appeal, this court affirmed the Family Part's orders terminating defendant's parental rights to her second child. N.J. Div. of Child Prot. & Permanency v. B.D., No. A-5297-13 (App. Div. Mar. 9, 2015).
Division caseworker Angel Brown described the various services and programs that were offered to defendant. Brown testified that the Division arranged for defendant to receive domestic violence counseling, help in obtaining public assistance, vocational training, and temporary rental assistance. Defendant failed to participate or take advantage of these services. The Division thus executed a Dodd removal, taking custody of J.D.D. directly from the hospital immediately after her birth. At that time, defendant did not have stable or suitable housing, was unemployed, and did not show the emotional or psychological capacity to care for the infant.
"A 'Dodd removal' refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). --------
Dr. Kirschner examined defendant with respect to both her bonding with J.D.D., and her ability to parent the child. According to Dr. Kirschner, defendant continues to suffer from "compulsive and histrionic personality traits, suggesting disciplined and dramatic traits, which tend to conflict with one another." Defendant lacks empathic and nurturing skills. These psychological deficits would make it extremely difficult for defendant to recognize and respond to her child's emotional needs.
Most importantly, Dr. Kirschner opined defendant continues to suffer from schizophrenia, which he characterized as "a chronic, persistent, and serious mental illness." Even under close medical management and in an emotionally stable environment, defendant would continue to "struggle to meet personal needs such as self-care, employment, and maintenance of social relationships." Defendant was not capable of safely managing her own personal needs, much less the parenting needs of J.D.D. In short, Dr. Kirschner opined defendant lacked the psychological capacity to provide J.D.D. with the safety, stability, nurturing and guidance she needs at this time or in the foreseeable future.
In the area of bonding, J.D.D. exhibited a strong emotional bond with her foster family. By contrast, the child had no ascertainable emotional connection with defendant. The child considers the foster mother as her "recognized" mother figure. Any bond that may exist between the child and defendant was not equal in strength to that which she had formed with her foster parents. In Dr. Kirschner's opinion, severing the bond J.D.D. has formed with her foster family would be inimical to the child's emotional and psychological well-being.
Judge Katz applied this evidence to the four statutory prongs in N.J.S.A. 30:4C-15.1(a) to determine whether the Division had met its burden of proof. N.J.S.A. 30:4C-15.1(a) provides that the Division must demonstrate that:
(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.
As Judge Katz correctly noted, these four factors are not discrete. They are intended to overlap and applied in a manner that creates a comprehensive standard for determining when termination of parental rights would be in the child's best interest. Stated differently, the four factors in N.J.S.A. 30:4C-15.1(a) "prescribe[] an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." New Jersey Div. of Youth & Family Services v. F.H., 389 N.J. Super. 576, 609 (App. Div.) (quoting In re Guardianship of DMH, 161 N.J. 365, 375 (1999)), certifs. denied, 192 N.J. 68 (2007).
The right to parent one's children is protected by both the Constitution of the United States and the New Jersey Constitution. In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999) (citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551, 558-59 (1972)). As judges, we are keenly aware of the magnitude of the power entrusted to us by the Legislature. As we recently noted, "[a]fter the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights." In re Adoption of Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div.), certif. granted, 223 N.J. 558 (2015). Thus, "all doubts must be resolved against termination of parental rights." K.H.O., supra, 161 N.J. at 347.
Our review of the trial court's order terminating parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). We are bound to uphold the judge's factual findings as long as they are supported by adequate, substantial, and credible evidence. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008). We are especially deferential to the trial judge's credibility determinations because the trial judge had the opportunity to make first-hand credibility determinations about the witnesses who appeared on the stand. We have characterized this type of unique vantage point as having a "feel of the case." By contrast, appellate judges are limited to reviewing only the cold record. Id. at 104. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
After reviewing the record developed at the trial and mindful of our standard of review, we affirm substantially for the reasons expressed by Judge Katz in his memorandum opinion dated June 17, 2015.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION