Opinion
DOCKET NO. A-2086-14T4
01-14-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. C.D.C., Defendant-Appellant, and K.A.M. and A.G., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF K.A.M. and A.E.G., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.M.M. (Cory H. Cassar, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.E.G. (Noel C. Devlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Hoffman and Leone. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-157-13. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Lindsay C. Wight, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.M.M. (Cory H. Cassar, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.E.G. (Noel C. Devlin, Designated Counsel, on the brief). PER CURIAM
Defendant C.D.C. appeals from a December 17, 2014 order terminating her parental rights to her children K.M.M. (Kate), born in 2005, and A.E.G. (Alan), born in 2009. Defendant raises the following points of argument for our consideration:
We use initials and pseudonyms to protect the family's privacy.
THE DIVISION OF CHILD PROTECTION AND PERMANENCY FAILED TO MEET ITS BURDEN OF PROVING BY CLEAR AND CONVINCING EVIDENCE THAT TERMINATION OF C.D.C.'S PARENTAL RIGHTS WAS THE APPROPRIATE DISPOSITION.
(A) There was insufficient evidence in the record to support the trial court's conclusion that D.C.P.P. established by clear and convincing evidence the children's safety, health or development has been or will continue to be endangered by the parental relationship under the first prong.
(B) There was insufficient evidence in the record to support the trial court's
conclusion that D.C.P.P. established by clear and convincing evidence that C.D.C. was unwilling or unable to eliminate the harm facing the children, or that she was unable to eliminate the harm facing the children, or that she was unable or unwilling to provide a safe and stable home for her children under the second prong.We find no merit in any of those arguments and, except as addressed herein, they are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
(C) The court failed to adequately consider alternatives to termination of C.D.C.'s parental rights to A.E.G. under N.J.S.A. 30:4C-15.1(a)(3).
(D) There was insufficient evidence in the record to support the trial court's conclusion that D.C.P.P. established by clear and convincing evidence termination of C.D.C.'s parental rights to A.E.G. will not do more harm than good, under the fourth prong.
On June 29, 2012, the Governor signed into law A-3101, which reorganizes the Department of Children and Families, which includes the renaming of the Division of Youth and Family Services as the "Division of Child Protection and Permanency." L. 2012, c. 16, eff. June 29, 2012.
After a four-day trial, Judge Stephen J. Bernstein found that the Division of Child Protection and Permanency (Division) satisfied the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a), as to Alan and Kate. We owe deference to Judge Bernstein's decision, unless it was not supported by sufficient credible evidence or was otherwise "'so wide of the mark that a mistake must have been made.'" N.J. Div. of Youth and Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citation omitted). Having reviewed the record in light of that standard, we find no basis to disturb the order on appeal. We affirm for the reasons stated by Judge Bernstein in his oral opinion issued on December 17, 2014, and for the reasons stated in this opinion.
The judge also made decisions as to the placement of several of defendant's other children, however, those children are not the subject of this appeal. --------
The essential facts are set forth in Judge Bernstein's opinion and need not be repeated here in detail. To summarize, defendant herself was raised in the child welfare system. Perhaps as a result of her troubled childhood, defendant has deep-seated psychological problems. She has been chronically homeless and unemployed for many years. Defendant has given birth to eight children, and has been unable to care for any of them. Despite the Division's efforts to provide her with services, defendant was unable to sustain either employment, or stable housing for herself and her children.
The Division's and Law Guardian's experts, Dr. Kirschner and Dr. Singer, opined that defendant was not currently able to act as a parent to Alan or Kate, who have been in foster care since 2011. Dr. Kirschner testified that, regardless of her housing situation, defendant's psychological problems made her unable to function as a parent. Defendant's own expert, Dr. Reynolds, also opined that, due to her psychological issues, defendant would require additional therapy before she could take on the role of a parent.
Kate is about ten years old. She was placed with a foster family when she was born, because defendant was homeless. She was later placed in defendant's care, only to be returned to foster care in 2011 after defendant was unable to provide her with a home. Kate is deeply alienated from defendant, has no parent-child bond with her, and has no desire even to visit with defendant. Defendant essentially ignored Kate at the bonding evaluations, while paying attention to her other children. Kate has a strong bond with her foster family, who are her psychological parents and are committed to adopting her. Kate, who is old enough to express her wishes, has forcefully and consistently stated her desire to be adopted by her foster parents.
Expert testimony established that removal from her foster family would cause Kate serious and enduring harm, while termination of defendant's parental rights would cause Kate no harm. Defendant has not raised even a colorable issue as to why her parental rights to Kate should not be terminated. R. 2:11-3(e)(1)(E). For the reasons stated by Judge Bernstein, we agree that termination of defendant's parental rights is in Kate's best interests.
Alan is in a somewhat different situation. He was five years old at the time of the guardianship trial. Alan was removed from defendant's care after her paramour, Alan's father, abused him. For most of his life, Alan lived with an adult cousin, D.C., with whom Alan had bonded and who was willing to adopt him. In addition, D.C. had adopted several of Alan's siblings and was about to enter into kinship legal guardianship (KLG) of two other siblings. Expert testimony established that defendant would be unable to care for Alan, and that he had a paramount need for a permanent home with a capable parent. Further, Dr. Kirschner, the only expert to testify about Alan's bond with defendant, opined that Alan did not have a strong parent-child bond with defendant. Thus, at the time of the guardianship trial, the record supported Judge Bernstein's finding that termination of defendant's parental rights, with a plan of adoption by D.C., was in Alan's best interests.
However, as both the Division's and Law Guardian's briefs advised us, after the guardianship judgment was entered, Alan was removed from D.C.'s home, because of allegations that another child in the home had made inappropriate sexual overtures to Alan. On this appeal, Alan's Law Guardian continues to advocate for termination of defendant's parental rights, so that Alan can be placed in a new pre-adoptive home and achieve a permanent family living situation. The Division advocates the same position. Defendant did not file a reply brief addressing this new circumstance, and we find it does not warrant our disturbing the order on appeal.
Nothing in this record suggests that the Division will be unable to find an adoptive home for Alan, who is still a young child. In fact, a Division witness testified about the agency's success in placing children older than Alan, from age seven to the early teen years, once they are legally freed for adoption. Judge Bernstein found that Alan's need for permanency was paramount, and the record supports that conclusion. Because defendant cannot care for Alan and there is no reasonable prospect that she will be able to do so in the future, his need for permanency remains the dominant concern. We agree with Alan's Law Guardian that termination of defendant's parental rights remains in Alan's best interests. See N.J. Div. of Youth and Family Servs. v. A.R., 405 N.J. Super. 418, 433 (App. Div. 2009) (noting the "particular significance" of the Law Guardian's position in advocating for a child too young to express his own wishes).
Because Alan has been removed for his safety from his cousin's home, defendant's argument advocating KLG with the cousin is moot. Defendant's additional arguments, asserting the
Division's failure to satisfy prongs one and two of the best interests test, are without merit. See N.J.S.A. 30:4C-15.1(a)(1), -15.1(a)(2). A parent's "inability to provide a stable and protective home" for her children is highly relevant to whether she "can cease to inflict harm" on them. N.J. Div. of Youth and Family Servs. v C.S., 367 N.J. Super. 76, 117-18 (App. Div.), certif. denied, 180 N.J. 456 (2004). Further, a key issue is whether the parent "can become fit to assume the parental role within time to meet the child's needs." N.J. Div. of Youth and Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005).
Defendant's continuing failure to provide Alan or Kate with financial support and housing, and her psychological inability to parent them, harmed her children by causing them to remain in foster care for years at a time. See N.J. Div. of Youth and Family Servs. v. R.G., 217 N.J. 527, 556-57 (2014) (citing In re Guardianship of K.H.O., 161 N.J. 337, 348-49 (1999)). Moreover, defendant's own expert opined that she was still not capable of acting as a parent by the time of the trial. See F.M., supra, 375 N.J. Super. at 258. Defendant's arguments do not warrant further discussion. 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