Opinion
DOCKET NO. A-5297-13T3
03-09-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. B.D., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.D., a/k/a K.T.D., minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Russell M. Smith, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.D. (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi, and Kennedy. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0188-13. Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Russell M. Smith, Jr., Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.D. (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant-mother, B.D., appeals from a judgment of the Family Part terminating her parental rights to her ten-year-old daughter, K.T.D. We affirm.
The girl's biological father is not involved in this appeal. He made an identified surrender of his parental rights in favor of adoption of the child by her foster mother, who is the father's cousin.
Defendant was raised in foster homes and has a long history of involvement with the Division of Youth and Family Services (the Division). Now thirty-seven years old, she gave birth to three other children besides the child that is the subject of this case, but none of the children are in her custody. She suffers from schizophrenia and has been found unable to care adequately for a child.
As of June 2012, the Department of Children and Families was reorganized, and the Division of Youth and Family Services, or DYFS, was renamed the Division of Child Protection and Permanency. L. 2 012, c. 16.
K.T.D. was born in 2004. Shortly after the birth, defendant left the newborn baby for several months in the care of her boyfriend, who was not the child's father. According to the boyfriend, defendant was unstable and abandoned the child. The boyfriend was also incapable of caring for the infant. When the Division intervened, the child was malnourished, dehydrated, and undersized. A medical examination revealed that she had suffered broken ribs, which the boyfriend said was the result of a fall. The Division removed the child from the boyfriend's home, and she was hospitalized for about one month.
Defendant could not be found during that time. When defendant turned up, she agreed to attend services recommended by the Division. Eventually, the child was reunited with her in 2006 at a facility that provided both housing and intensive parental assistance. At about the same time, defendant gave birth to another child. In 2008, defendant was directed not to leave K.T.D. in the care of the child's father because he had been convicted that year of endangering the welfare of a child.
In August 2011, when the child was seven years old, defendant again left her in the care of someone else because defendant lost her government housing assistance and moved in with a boyfriend's family. The new caregiver turned K.T.D. over to the child's father. Defendant was aware of K.T.D.'s situation because she visited the child once or twice. Later, when defendant was asked why she did not see the child more often, she said she could not recall where the child and the child's father were staying.
The father physically abused the child. In December 2011, the Division received a referral from the child's school when she appeared with marks on her face indicating she had been beaten. The child was interviewed and said her father disciplined her physically, including with a belt. He had punched her in the face because the child had wet her bed. The child believed that her mother had abandoned her, and she feared her father. The Division took custody of the child and placed her in a foster home.
After defendant was located, the Division referred her to counseling and other services with a plan eventually to reunite her again with the child. Defendant attended most but not all the counseling and therapy sessions. Reports of the counselors and aides indicated that defendant did not understand the deficiencies in her relationship with her children and was reluctant to follow the counselors' parenting advice.
In 2013, after the court approved a permanency plan for K.T.D. directed toward termination of defendant's parental rights, the Division placed the child in a paternal cousin's home, which also includes several other children. The cousin indicated a desire to adopt the child.
Evaluations completed by the Division's expert witnesses at the guardianship trial, psychiatrist Alexander Iofin, M.D., and psychologist Eric Kirschner, Ph.D., were consistent in diagnosing defendant with schizophrenia and related conditions. Her medical records indicated she had been hospitalized on several occasions since the age of seventeen for mental health problems. Psychological evaluations performed over the years and the current evaluations indicated a lifelong mental illness that would be stabilized at times and then re-emerge episodically. The mental health experts viewed defendant as being unstable, with intellectual deficits that prevented her from understanding her condition and improving it significantly. Drs. Iofin and Kirschner believed that defendant was incapable of caring for children by herself and needed extensive, intense therapy to address her mental condition.
Bonding evaluations were also completed and concluded that the child has a beneficial relationship with her foster mother and a more distant relationship with defendant. Dr. Kirschner interviewed the then nine-year-old child, who viewed her caregiver as her mother and did not have strong feelings about defendant. Dr. Kirschner concluded that the child would be harmed if separated from her foster mother and her current home but that she would not suffer harm if defendant's parental rights were terminated. Also, the foster mother told the Division that she maintains a good relationship with defendant and was agreeable to the child and defendant continuing their relationship after the adoption.
On appeal, defendant argues that the evidence presented at the two-day guardianship trial did not meet the clear and convincing standard of proof as to any of the four necessary prongs of N.J.S.A. 30:4C-15.1(a) to authorize termination of her parental rights. We disagree and affirm the Family Part's judgment for the reasons stated in the oral decision of the Family Part judge.
N.J.S.A. 30:4C-15.1(a) provides that parental rights may be terminated when:
(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 Division bears the burden of proving the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 606 (2007). The Family Part's inquiry is extremely fact-sensitive. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). The four prongs 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).
As an appellate court, we review the record to determine if the Family Part's decision is supported by substantial and credible evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). We accord deference to the trial judge because he had the opportunity to "make first-hand credibility judgments" and to gain a "feel of the case" over time, thus providing a level of factual familiarity that cannot be duplicated by an appellate court reviewing a written record. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342-43 (2010); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008).
Unless the trial judge's factual findings are "so wide of the mark that a mistake must have been made," they should not be disturbed. M.M., supra, 189 N.J. at 279 (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)). In E.P., supra, 196 N.J. at 104, the Court said: "We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." Accord In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." E.P., supra, 196 N.J. at 104 (quoting G.L., supra, 191 N.J. at 605).
Here, the Family Part's findings and conclusions were not wide of the mark but well-supported by the evidence presented at the guardianship trial.
The harm done to the child was not simply that defendant suffers from a mental illness and cognitive deficits that interfere with her ability to care for the child. Rather, defendant's mental condition has seriously affected the child's care and nurture from the time of her birth.
Defendant has on more than one occasion abandoned the child into the care of others who were unsuited for that purpose. Defendant then disappeared for months at a time. The child suffered abuse during those periods, because of either the negligence or the intentional abusive acts of the caregiver. The psychological harm to the child is likely to be permanent and serious. See In re Guardianship of D.M.H., 161 N.J. 365, 379 (1999) ("A parent's withdrawal of . . . solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child.") (citing K.H.O., supra, 161 N.J. at 352-54).
While defendant has made efforts to address the harm by attending counseling and therapy, she is incapable of changing her condition significantly so that she can safely care for a child. As the doctors stated, she has difficulty in caring for her own needs, and she has limited understanding of the child's needs. Even if defendant is willing to address her deficiencies, she is not capable of doing so within the reasonably foreseeable future and during the child's maturing years. Also, the child has learning disabilities that require special attention, which defendant is not cognitively and psychologically capable of providing.
Defendant argues that the third prong of N.J.S.A. 30:4C-15.1(a) was not proven because the Division did not provide the level of mental health services that its own experts stated defendant needs. Defendant's mental condition, however, is longstanding and pervasive. The doctors recommended intensive outpatient therapy or partial hospitalizations, but they did not predict that such treatment could lead in the reasonably foreseeable future to improvement of defendant's parenting skills to the point where she could adequately care for the child. The Division provided reasonable services in an attempt to aid defendant in overcoming her parental deficiencies. The services defendant says should have been provided would not have changed the outcome of the guardianship trial.
Finally, there is ample evidence that termination of defendant's parental rights will not do more harm than good. The bonding evaluations and the child's improvement and thriving in her pre-adoptive home were demonstrated by the Division's evidence at the trial.
In sum, all four prongs of N.J.S.A. 30:4C-15.1(a) were proven by the clear and convincing evidence standard of proof. Under our deferential standard of review, we see no basis for disturbing the judge's conclusions that defendant's parental rights to K.T.D. should be terminated so that she can find safety and permanency in her adoptive home.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION