Opinion
DOCKET NO. A-1851-14T4
02-16-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.E.D., Defendant-Appellant, and P.D.D., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF E.N.D., a Minor.
Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the briefs). Patricia A. Krogman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. DiDonato, Deputy Attorney General, on the brief). Nichole Lane, Assistant Deputy Public Defender, argued the cause for minor E.N.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lane, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-216-14. Carleen M. Steward, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Steward, on the briefs). Patricia A. Krogman, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ashton L. DiDonato, Deputy Attorney General, on the brief). Nichole Lane, Assistant Deputy Public Defender, argued the cause for minor E.N.D. (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Ms. Lane, on the brief). PER CURIAM
D.E.D. appeals from an order entered by the Family Part on November 21, 2014, which terminated her parental rights to the minor child, E.N.D. We affirm.
I.
D.E.D. and P.D.D. are the parents of E.N.D., who was born on January 1, 2003, in Ohio. In June 2006, D.E.D. and P.D.D. formally relinquished custody of E.N.D. to her maternal grandmother, S.B., who cared for the child until her death in January 2008. Thereafter, D.E.D.'s maternal cousin M.M. obtained custody of E.N.D. through the courts in Ohio, and returned with the child to New Jersey, where M.M. resides. In September 2008, with D.E.D.'s consent, the Family Part awarded M.M. sole custody of E.N.D.
The Division of Child Protection and Permanency (Division) became involved with M.M. and E.N.D. after M.M. reported that E.N.D. had engaged in numerous disturbing behaviors. M.M. claimed that E.N.D. behaved in this manner because she had been sexually abused while in Ohio. The Division did not substantiate the alleged abuse or the disturbing behaviors, but provided psychological evaluations and services to E.N.D. In December 2008 and January 2009, E.N.D. was admitted to a hospital for psychiatric care. In March and April 2009, the Division received reports from certain mental health providers that M.M. was abusing E.N.D. The Division substantiated emotional but not physical abuse.
Until June 29, 2012, the Division was known as the Division of Youth and Family Services. See L. 2012, c. 16, effective June 29, 2012.
In March 2009 and June 2009, the Division sought custody of E.N.D., but the court only awarded the Division care and supervision. Thereafter, the Division obtained psychological evaluations and therapeutic services for the family. In March 2010, E.N.D. allegedly pushed M.M. down a flight of stairs. The child was then seven years old. She was hospitalized for a week and received psychiatric care. Thereafter, E.N.D. was placed in a residential treatment center, where she remained for a year.
In January 2011, the Division filed an application in the trial court seeking custody of E.N.D. The court granted the Division's application, after M.M. voluntarily surrendered legal and physical custody of the child. In April 2011, E.N.D. was placed in a therapeutic foster home.
Initially, the Division took certain actions with the goal of returning E.N.D. to the care of her parents. The Division provided D.E.D. with an array of services to address her mental health, substance abuse, financial, housing and employment problems. She was offered monthly visits with the child and supervised phone contact with E.N.D. D.E.D. missed some of the visits, and she did not consistently maintain phone contact with E.N.D. She continued to abuse marijuana, and either did not participate in or complete substance abuse programs offered to her in New Jersey and Ohio.
In September 2012, the Division filed its guardianship complaint. E.N.D.'s initial foster placement ended after twenty-one months because the foster parent decided she did not want to adopt the child. In November 2012, E.N.D. was placed in a new home. In May 2013, the Division dismissed its guardianship complaint so that it could explore placement of E.N.D. with relatives including M.S., her maternal grandfather. E.N.D.'s second placement lasted until July 2013. The foster parent asked that the child be removed due to certain behavioral issues.
The Division later ruled out M.S. and the other relatives as resources. The Division re-filed its guardianship complaint in October 2013. E.N.D.'s third foster placement ended at this time, after E.N.D. alleged, but later recanted, that the foster father had sexually abused her. E.N.D. was then placed in a fourth treatment home, while the Division sought a permanent placement.
The trial on the Division's guardianship complaint took place over various dates between August and October, 2014. D.E.D. and P.D.D. were represented by counsel but did not appear for trial, either in person or telephonically.
At the trial, the Division presented testimony from Dr. Frank J. Dyer, who had performed psychological and bonding evaluations of E.N.D., D.E.D. and P.D.D. Dr. Dyer testified that D.E.D.'s life was characterized by a pattern of emotional instability, transient lifestyle, depression, drug abuse, and violent domestic relationships.
Dr. Dyer opined that D.E.D. was incapable of caring for E.N.D. He stated that, although E.N.D. had a positive emotional tie to D.E.D., it was an ambivalent tie due to the "enormous emotional baggage" that E.N.D. carried in connection with D.E.D.'s earlier abandonment of her. Dr. Dyer opined that E.N.D. had an "urgent" need for permanency. He stated that E.N.D. would suffer a loss if her parents' rights were terminated, but the loss would not "inflict some sort of intolerable or permanent harm on her."
Dr. Dyer further testified that E.N.D. would deteriorate if she were kept in a situation without permanency. In reports prepared in 2013 and 2014, Dr. Dyer had recommended that E.N.D. be placed with a family member in Ohio, but at the time of trial, he believed a family placement was no longer an option. He stated that the best option for E.N.D. is adoption.
The Division also presented testimony from Samantha Devita, a permanency supervisor. Devita testified that the Division's permanency plan for E.N.D. was termination of D.E.D.'s and P.D.D.'s parental rights followed by select home adoption. Devita described the Division's involvement with D.E.D., as well as E.N.D.'s various placements. She further testified about the Division's consideration of relative placement resources.
Jessica Sabios, an adoption worker for the Division, also testified. She stated that the Division believed the best plan for E.N.D. was adoption because she needed permanency and stability. Sabios noted that the Division had identified a potential permanent placement for E.N.D. in New Jersey, and planned to move her there. It appears, however, that the potential adoptive parent later decided against the placement, and E.N.D. remained in her fourth therapeutic foster home.
Dr. Alice Nadelman, who had performed four psychological evaluations of E.N.D., testified for the Law Guardian. Dr. Nadelman's report, which was entered into evidence, stated that E.N.D. was attachment-impaired, depressed, and was in need of a "permanent caring, nurturing, protecting parental figure who can help her to heal from the multiple traumas she has experienced." She said the best option for E.N.D. was to be freed for adoption, with continued therapy.
Dr. Nadelman also noted that E.N.D. had informed her, the court, and the Division that she did not want to be adopted by anyone in Ohio, even if it were one of her grandparents. E.N.D. stated that, if she could not be placed with her parents, she wanted to be adopted in New Jersey.
On November 21, 2014, the trial judge filed his opinion and order in the case, terminating D.E.D.'s and P.D.D.'s parental rights to E.N.D. In his opinion, the judge found that the Division had established by clear and convincing evidence all four of the prongs of the best interests of the child standard codified in N.J.S.A. 30:4C-15.1a. D.E.D.'s appeal followed. P.D.D. has not appealed the order terminating his parental rights to E.N.D.
II.
D.E.D. first argues that the trial judge erred by permitting the use of leading questions in the Law Guardian's cross-examination of the Division's caseworker, and in the cross-examination of the Law Guardian's expert by the Deputy Attorney General who represented the Division. D.E.D.'s attorney objected to this use of leading questions, but the judge overruled the objections, finding that they were appropriate cross-examination and permitted by N.J.R.E. 611.
We review a trial court's evidentiary rulings for abuse of discretion, and we will not reverse the court's rulings unless they were so mistaken as to result in a denial of justice. State v. Nantambu, 221 N.J. 390, 402 (2015) (citations omitted); State v. Kuropchak, 221 N.J. 368, 385 (2015) (citations omitted); Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (citations omitted).
N.J.R.E. 611 provides that:
(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
. . . .
(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls an adverse party or a witness identified with an adverse party, or when a witness demonstrates hostility or unresponsiveness, interrogation may be by leading questions, subject to the discretion of the court.
[(Emphasis added).]
"The rule contemplates that leading is permissible where there is an adversarial relationship between examiner and witness." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 611 (2015). Thus, "the mere fact that a witness is, technically speaking, being cross-examined does not ensure a party's right to use leading questions." Ibid.
Nevertheless, our Supreme Court has emphasized that "the manner of questioning witnesses falls within the broad discretion of the trial court." State v. Bey, 129 N.J. 557, 594 (1992), cert. denied, 513 U.S. 1164, 115 S. Ct. 1131, 130 L. Ed. 2d 1093 (1995) (citation omitted). Therefore, "leading questions should be allowed," even for a party's own witness on direct examination, "if their responses will yield reliable and relevant evidence." Ibid. (citation omitted).
We are convinced that the judge did not err by permitting counsel for the Division and the Law Guardian to ask leading questions. Under N.J.R.E. 611, a trial judge has broad discretion to control the manner in which the witnesses are questioned. Here, the use of leading questions was proper. It was intended to elicit reliable and relevant evidence.
Even if the judge mistakenly exercised his discretion by allowing the use of leading questions on matters where the Division and the Law Guardian were in agreement, reversal of the order terminating parental rights is not warranted. D.E.D. has not shown that she was in any way prejudiced by the manner in which these particular witnesses were questioned. See State v. Mance, 300 N.J. Super. 37, 62-63 (App. Div. 1997) (Defendant failed to show leading questions prejudiced his case).
As noted, this matter was tried to the judge, sitting without a jury, and there is no indication that the judge was misled by the use of leading questions. See State v. Adams, 586 P.2d 1168, 1172 (Wash. 1978) ("There can be little doubt that the questions now complained of were to some degree leading. But it must be remembered that this was a trial to the court. It can safely be assumed that the trial court judge recognized the questions for what they were and disregarded any improper material produced thereby in reaching a decision.").
III.
Next, D.E.D. argues that the judge erred by finding that the Division had proven the third and fourth prongs of the best interests standard in N.J.S.A. 30:4C-15.1a by clear and convincing evidence. We disagree.
In addressing these issues, we note initially that a parent has a constitutional right to rear his or her child, but that right is not absolute. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citations omitted). The parent's right is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid.
Thus, the Division is authorized by N.J.S.A. 30:4C-15.1a to seek the termination of parental rights in "the best interests of the child" when
(1) [t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship;
(2) [t]he 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) [t]he [D]ivision 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; andThe Division must prove all of these four, interrelated prongs of the statutory standard by clear and convincing evidence. F.M., supra, 211 N.J. at 447-48 (citations omitted).
(4) [t]ermination of parental rights will not do more harm than good.
In an appeal from an order terminating parental rights, we must recognize the family court's "specialized knowledge and experience in matters involving parental relationships and the best interests of children." Id. at 427. Therefore, "[w]e defer to the family court's findings unless they are so wide of the mark that our intervention is required to avert an injustice. So long as the record contains substantial and credible evidence to support the family court's decision, we may not second-guess its judgment." Ibid.
A. Third Prong.
D.E.D. argues that the Division failed to prove the third prong of the best interests standard because the Division failed to take sufficient steps to have E.N.D. placed with M.S., her maternal grandfather. Additionally, she contends the trial court erred by failing to consider a kinship legal guardianship (KLG) placement of E.N.D. with M.S., as an alternative to termination of her parental rights. Neither argument has merit.
As noted, the third prong of the best interests standard requires, among other things, that the court consider alternatives to termination of parental rights. N.J.S.A. 30:4C:15.1a(3). Therefore, the Division must show that it considered available relative placements before pursuing termination of parental rights. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 81-82 (App. Div. 2013), certif. denied, 217 N.J. 587 (2014). There is, however, "no presumption favoring the placement of a child with such relatives." Id. at 82.
Here, the trial judge noted that the Division had considered and ruled out M.S. as a possible placement for E.N.D. The judge rejected D.E.D.'s contention that the Division had failed to do all that was necessary so that the child could be placed with M.S. We are convinced that there is sufficient credible evidence in the record to support the judge's findings on this issue.
The record shows that in order for M.S. to be approved as a placement resource, he had to comply with requirements of the Ohio licensing agency, which included foster-parent training. In 2012 and 2013, M.S. took classes in foster-parenting; however, his attendance at those classes was valid for only eighteen months and had expired by the time the case was tried. Furthermore, M.S. informed the Division that he would not take the classes again.
In addition, in May 2012, the Division requested that the Ohio licensing agency assess M.S. as a potential placement for E.N.D., a process that includes fingerprinting, a background check, an income check, and a housing inspection. The agency would not, however, undertake the assessment until M.S. moved from his one-bedroom apartment to a two-bedroom apartment. M.S.'s landlord, a public housing agency, would not provide him with a two-bedroom apartment until he had custody of E.N.D.
The Division attempted to address this situation by advocating with the Ohio social services agency, and with M.S.'s landlord, but was unable to resolve the impasse. M.S. said he would not move to a two-bedroom apartment unless he was guaranteed custody of E.N.D. The Division could not provide that guarantee.
Moreover, because M.S. had not been approved by the Ohio licensing agency, E.N.D. would not qualify for Medicaid if she were placed in his home. In addition, M.S. would not be eligible for supervision by the Ohio social services agency and foster- care subsidies. For these reasons, the Division ruled out M.S. as a resource placement for E.N.D. M.S. did not appeal that determination.
D.E.D. argues that the trial judge never properly considered the child's best interests in the matter. She contends the only barrier to E.N.D.'s placement was the logistical issue related to housing, which the Division should have resolved. D.E.D. maintains that the court should not have terminated her parental rights, when M.S. was an appropriate placement for E.N.D. and a foster parent had not yet committed to adopting the child.
We are not persuaded by these arguments. Like the trial judge, we are not "unmindful or unsympathetic" to the situation in which M.S. found himself. We also note that Dr. Dyer opined that M.S. would be an appropriate placement for E.N.D. However, because M.S. resides in Ohio, E.N.D.'s placement in his home required approval by the Ohio foster care licensing agency.
The Division could not compel the Ohio agency to approve E.N.D's placement in M.S.'s home, although it did render assistance to him in obtaining approval for the placement. M.S. refused to move to a two-bedroom apartment, which would have resolved the housing issue. Even if that issue had been resolved, M.S. still had to comply with other requirements for approval of the placement, including foster-parent training. As noted, M.S. refused to take the foster-parent training classes again, which was required.
We also reject D.E.D.'s contention that the trial judge erred by failing to consider a KLG with M.S. as an alternative to termination of parental rights. KLG may be an appropriate alternative to termination of parental rights when adoption is neither feasible nor likely. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508-09 (2004). However, KLG does not provide the child with permanency, since "[t]he biological parent may seek to regain custody or to reinstate other kinds of involvement in the child's life, such as visitation." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 229-230 (App. Div. 2013).
Here, the evidence presented at trial did not establish that adoption was infeasible or unlikely. Indeed, at the time of trial, E.N.D. was in a prospective adoptive home. Although that placement did not result in an adoption, it indicated that adoption was, in fact, feasible. Moreover, at trial, S.D. testified that if D.E.D.'s and P.D.D.'s parental rights were terminated, more resources would be available to find an adoptive family for E.N.D.
The Law Guardian has advised the court that on October 2, 2015, E.N.D. was placed in another pre-adoptive home. --------
Furthermore, based on Dr. Dyer's and Dr. Nadelman's unrebutted testimony, the judge found that that E.N.D. has an urgent need for permanency, which would be achieved through adoption. In addition, E.N.D. has stated that she wants to be adopted if she cannot be returned to her parents. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 112-14 (2008) (court should consider wishes of children of sufficient age, who are capable of forming an intelligent opinion).
B. Fourth Prong.
D.E.D. next argues that the Division failed to establish that termination of her parental rights will not do more harm than good, as required by the fourth prong of the statutory standard. Again, we disagree.
Our Supreme Court has recognized that "a harm arising out of the severing of ties with the biological parent is an inherent danger of termination proceedings. The near inevitability of this harm befalling a child is the tragedy that termination proceedings engender. Nevertheless, the question the courts must answer remains whether the termination will not do more harm than good." In re Guardianship of D.M.H., 161 N.J. 365, 384 (1999).
The inquiry required by the fourth prong of the statutory standard ordinarily entails consideration of expert testimony evaluating the child's relationships with the biological and foster parents. F.M., supra, 211 N.J. at 453 (citations omitted). Furthermore, a child's need for permanency is "an important consideration." Ibid. (citation omitted).
"Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid.; see also D.M.H., supra, 161 N.J. at 385 (recognizing "strong policy considerations that underscore the need to secure permanency and stability for the child without undue delay").
D.E.D. contends that termination of parental rights, without any compensating benefit such as adoption, may do great harm to a child, and many children who are freed up for adoption do not find a permanent home. D.E.D. claims that there is no real hope for E.N.D.'s adoption by anyone other than M.S. She asserts that, by terminating her parental rights, there is no benefit to E.N.D., only harm.
Here, however, there is sufficient credible evidence in the record to support the trial judge's finding that termination of D.E.D.'s and P.D.D.'s parental rights would not do more harm than good. As Dr. Dyer testified, E.N.D. has an emotional tie with D.E.D., but it is an ambivalent tie. Dr. Dyer explained that E.N.D. understands that her parents are unable to care for her, and she wants a permanent adoptive home with a mother who could love and support her.
Furthermore, Dr. Dyer and Dr. Nadelman agreed that E.N.D. had an urgent need for permanency. Dr. Dyer testified that it was in E.N.D.'s best interests for the Division to pursue the goal of adoption. Dr. Nadelman also opined that it would be best if E.N.D. were legally freed for adoption, so that a family could be identified that has the capability to understand and meet E.N.D.'s needs.
The judge found that a delay in finding a permanent placement for E.N.D. will add to the harm that the child has already suffered. Indeed, D.E.D.'s inability to provide a safe and stable home for the child has resulted in numerous foster placements. The judge pointed out that, if E.N.D. remains without permanency, she will deteriorate.
Moreover, the record does not support D.E.D.'s contention that E.N.D.'s prospects for adoption are slim. At the time of trial, she was in a pre-adoptive home. That placement did not result in an adoption, but E.N.D. was placed in another pre-adoptive home while this appeal was pending. As the Division's witness testified, termination of parental rights also expanded the options for E.N.D.'s eventual adoption.
Thus, the record fully supports the judge's determination that the Division has proven prong four of the best interests standard. The evidence clearly and convincingly showed that, under the circumstances, termination of D.E.D.'s parental rights would be in the child's best interests and not do more harm than good.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION