Opinion
DOCKET NO. A-5067-13T1
01-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. D.R.C., Defendant-Appellant, IN THE MATTER OF THE GUARDIANSHIP OF J.K.C. AND J.N.C.C., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.K.C. and J.N.C.C. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FG-12-55-14. Joseph E. Krakora, Public Defender, attorney for appellant (Carol A. Weil, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Erin O'Leary, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors J.K.C. and J.N.C.C. (Noel C. Devlin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant-mother, D.R.C., appeals from a judgment of the Family Part terminating her parental rights to twin boys, J.K.C. and J.N.C.C. We affirm.
The boys' biological father chose not to participate in the case, and his parental rights were terminated by default judgment.
The boys, now twelve years old, have lived much of their lives with a husband and wife who are not biologically related to them but have taken the role of the boys' grandparents. The boys suffered substantial emotional harm as a result of defendant's neglect of them while they were in her custody and while visiting with defendant at her home over the last several years. The boys have repeatedly expressed their wish to remain with the grandparents, whom they call "Nana and Pop."
In April 2010, the Division of Youth and Family Services (the Division) removed all five of defendant's children from her home and obtained temporary custody of them with a goal of eventually reunifying them with defendant. Since then, the two oldest children, both girls, have reached the age of majority and are no longer involved in the Division's case against defendant. According to defendant's brief in this case, the older girls have voluntarily returned to live with defendant. The Family Part returned the youngest daughter, now ten, to defendant's custody in 2011. However, the twin boys have emphatically expressed their wish to be adopted by the grandparents rather than to return to their mother's home, although they have also expressed a desire to continue a relationship with their mother. The grandparents are willing to adopt the boys, and they insist that defendant must maintain a good relationship with the grandparents and provide a safe home for the boys in order to have any unsupervised visits with them.
As of June 29, 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. 2012, c. 16.
Defendant opposes termination of her parental rights on the ground that the Division did not prove three of the four required statutory elements of N.J.S.A. 30:4C-15.1(a). The law guardian appointed to represent the interests of the boys joins the Division in opposing defendant's appeal.
The statute 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.
At the time the children were removed from defendant's home, they lived in Middlesex County. Since the age of two, however, the twins have lived on and off in Newark with the grandparents. In the past, the grandparents considered defendant to be like a daughter to them, but their relationship has become acrimonious, mainly because of the grandparents' desire to protect the boys against harm and their disappointment and distrust of defendant as a mother to her children.
Defendant's history with the Division began in 2007, when the Division determined that she abused her oldest daughter, then thirteen, by hitting her with a broomstick and causing injury. The Division referred the family for services.
In May 2009, when the twin boys were seven, the Division received a referral because the boys missed sixteen days of school, and, when they attended school, they arrived late and dirty. A Division caseworker spoke to the boys and reported that they appeared to be healthy, but their clothes were dirty. One of the boys said defendant did not wake him in the morning or help him get ready for school. He said he bathed at his Nana's house on the weekends, and he did not have a toothbrush. The May 2009 report also indicated that defendant missed a hearing to address the school attendance matter. When asked about the boys' school absences and personal hygiene, defendant said that the boys missed school because of "family personal issues" and that she takes prescribed medication that makes it difficult for her to wake up in the morning.
In November 2009, a doctor reported to the Division that one of the boys had bug bites all over his body. The child reported that his mother's house was dirty, there were "bugs all over," and he and his siblings slept on the floor. When Division workers investigated, they found defendant's home to be "in desperate need of cleaning," with a strong stench of cat urine. There were open food containers in the kitchen, and the kitchen counters, stove, and refrigerator appeared to have never been cleaned.
Defendant said that she suffered from sleep apnea, high blood pressure, and obesity. She was taking medication for depression and attended monthly appointments for psychotherapy. Defendant further reported that she slept on the living room floor because of her back pain, and the children slept with her on the floor to keep her company, although they had beds. The Division's report substantiated the allegations of neglect because of the unclean condition of the house.
On April 26, 2010, the Division received another referral concerning the unclean home. A Division worker found maggot-infested food on the floor and on the kitchen counters. Although defendant had five children living with her, there was inadequate edible food in the house; the refrigerator contained only very old, moldy food. The caseworker reported that "the home smells like a sewer pipe." Liquor bottles were observed in the teenage girls' room, and defendant "allow[ed] people she doesn't know that live on the streets to move in with them."
The Division determined the home was unsafe for the children. It substantiated environmental and educational neglect, and the three youngest children were placed with Nana and Pop. The Division arranged for counseling services for the boys.
In June 2010, defendant moved into a new apartment and the Division determined it to be safe enough for the children to visit her there. However, visits were a source of frustration between defendant and the grandparents, and their relationship deteriorated. Defendant sometimes missed the weekend visitation, and the boys told the Division that, during their visits, strangers were sleeping in the apartment and that the adults "smoke weed." The boys' therapist reported that they "appear[ed] a lot happier when visits are missed."
In April 2011, defendant attended parenting classes and completed counseling. The court approved the return of the younger sister to defendant's custody in August 2011, but the boys were adamant that they did not want to return. In the fall of 2011, the boys expressed to their therapist that visiting their mother's home made them scared because strangers were there "cutting up drugs." During one visit, the boys reported having to clean their mother's house for a baby shower. At the party, a fight broke out and glass was broken on the floor. One of the boys suffered a deep cut on his foot, but the injury was left untreated until he returned to his grandparents' house. The boys further reported that while at defendant's home, she insisted they wear only their underwear even when guests were present and that this made them uncomfortable.
In the spring of 2012, the boys reported to their grandfather that they were still afraid of visiting at defendant's home. One of the boys told the grandfather that he heard the strangers in the house "talk about robbing people and stuff." He said "they're really bad people. I'm afraid. I don't want to go there anymore."
In July 2012, one of the boys expressed to his therapist so much conflict about staying with his mother that he was having suicidal thoughts. At ten years of age, the boy experienced incidents of bed-wetting on nights near the time of his visits to his mother's house. In August 2012, the Family Part restricted defendant to one scheduled visit with the boys each month and gave the boys the freedom to see her when they wanted. Family therapy was ordered, which the Division eventually facilitated.
In November 2012, one of the boys took a bag of marijuana from the nightstand next to defendant's bed and brought it to his grandfather as "evidence" of his mother's drug use. The boy said he took the marijuana so that he would be believed when he said he was afraid of the drug use and other conditions there. After that incident, defendant submitted to a drug screen in February 2013, but the test found the specimen might be diluted. A second test conducted in April 2013 was positive for marijuana use. A substance abuse evaluation diagnosed defendant with cocaine dependence in full sustained remission and also with alcohol abuse. Because defendant was taking prescribed psychotropic medication, her use of alcohol was deemed hazardous. The Division referred defendant to substance abuse treatment.
At about this time, the boys expressed their desire to be adopted by the grandparents. According to bonding evaluations conducted in May 2013, the Division's psychologist, Dr. Weitz, found that:
The [grandparents] have demonstrated an unconditional commitment to giving [the boys] a safe and loving home from the moment they were born as they had done similarly for their sisters and birth mother. . . . As long as [defendant] does not pose a risk of harm to the children, they are likely to allow her to have contact with the boys if they establish permanency with them.
In the same report, Dr. Weitz concluded that defendant "is not fit to parent these boys and [that] continued contact with her should be decided by the adults who know her and the boys best, namely the [grandparents]." Dr. Weitz based her opinion on the history of environmental neglect and physical abuse, inconsistent school attendance, drug use, and exposure to strangers in the home. Dr. Weitz opined that "the risk of neglect, and exposure to unsafe conditions, has not been eliminated" by defendant although five years had passed since the Division became involved with the family and several years since the children were removed from defendant's custody.
In March 2014, Dr. Weitz conducted another bonding evaluation and found again "that termination of [defendant's] parental rights and adoption by [the grandparents] is in [the boys'] best interest." Dr. Weitz further reported that she did not recommend kinship legal guardianship, see N.J.S.A. 3B:12A-1 to -7, because defendant should not "have any say in important decisions about the children's lives and because the boys should not have to worry that [defendant] could petition the court for custody of them any time."
In January 2014, Dr. Dougherty, a psychologist retained by defendant, conducted a psychological evaluation of defendant and a bonding evaluation of defendant and the boys. Dr. Dougherty's report described the nature of the interaction between defendant and the boys during the appointment, discussing such things as video games and defendant's birthday. He found that the boys had a positive bond with defendant.
Dr. Dougherty also spoke to the boys individually. In response to the doctor's questions, each of the boys expressed three wishes: "stay with our grandparents, be able to visit my mother, and DYFS out," and "to stay at my grandparents' house, DYFS stop, its taking so long to stay at my grandparents, and a whole bunch of money."
Dr. Dougherty's evaluation determined that defendant had no psychological problems that would preclude her from parenting the boys but reunification would be difficult because the boys desired to be adopted. His observations were consistent with those of Dr. Weitz, but he did not agree that defendant's parental rights should be terminated. Dr. Dougherty concluded that adoption by the grandparents would do more harm than good because the boys have a bond with their mother, and it was possible that the grandparents "would cut all ties with [defendant] and her children if they are granted adoption." At the guardianship trial, Dr. Dougherty testified that he supported adoption if visitation between defendant and the boys could be ensured.
After hearing testimony from Division caseworkers, the grandparents, and the two evaluating psychologists, the trial judge placed an oral opinion on the record on June 10, 2014, resulting in the judgment terminating defendant's parental rights to the twin boys.
On appeal, defendant asserts that the trial court erred because the Division failed to prove three of the four statutory criteria for terminating the defendant's parental rights. Defendant concedes only that the Division proved the first prong of N.J.S.A. 30:4C-15.1(a) and disputes that the proofs on the last three were sufficient to justify termination of her parental rights.
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, even if we would not have made the same decision if we had heard the case in the first instance. 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 conclusions were not wide of the mark but well-supported by the evidence presented at the guardianship trial.
Defendant argues that the Division failed to prove the second prong of the statute, that is, that defendant was unwilling or unable to eliminate the harm to her sons. Defendant complied with Division directives and completed parenting and individual counseling sessions, and she made strides toward improving her parenting skills and the condition of her home. In 2011, the Division believed that reunification of the youngest daughter with defendant was safe, and it found no reason to criticize the youngest daughter's custody arrangement at the guardianship trial of the two boys.
But Dr. Weitz testified that defendant's "improvements do not make her fit to parent her sons." She believed that defendant could not take care of all her children. The risk of relapse into the prior neglectful circumstances was too great if the responsibility for all three younger children were to be returned to defendant.
Dr. Dougherty also testified that reunification was not advisable, but based on the boys' strong preference to remain with their grandparents. While Dr. Dougherty opposed termination of defendant's parental rights because the boys might lose the benefit of a continued relationship with their mother, he did not claim that the harm done to the boys by their environmental neglect had been completely eliminated.
The trial judge credited Dr. Weitz's testimony and expressed a belief that four years of Division involvement to eliminate the risk to the boys was sufficient and that a further delay would not be in the boys' best interests. That conclusion was adequately supported by the evidence.
The second prong can be satisfied by a showing "that the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." K.H.O., supra, 161 N.J. at 348-49; accord N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 224 (App. Div. 2013). Here, the boys' had a pronounced need for permanency and stability in their lives. They said so themselves in many ways.
Although defendant had a cleaner home after she moved to another apartment in 2010, and although she completed the counseling services to which the Division referred her, there was no indication that she had insight into the problems caused by her drug use, by her inviting strangers into the home, and by her hostility toward the grandparents. The boys' visits at the new home were marred by the presence of strangers and criminal activity. The boys were afraid at defendant's home and were relieved when they did not have to go there. As late as the fall of 2012, one of the boys gathered evidence that his mother was still using marijuana when they visited at her home. The boy felt a need to prove to his grandparents and to the Division why he felt unsafe in that environment.
Defendant argues accurately that the trial judge did not articulate findings specifically on prong two of the statute. As the Supreme Court has stated, however, the four prongs of the statute "relate to and overlap with one another . . . ." K.H.O., supra, 161 N.J. at 348. The judge's findings pursuant to the second prong were intertwined with his other findings.
Also, the analysis under the second prong includes "whether delay in permanency will cause further harm and whether the child has bonded to his or her foster parents to the extent that separation from them would in itself 'cause serious and enduring emotional or psychological harm to the child.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 507 (2004) (quoting N.J.S.A. 30:4C-15.1(a)(2)). The record supports a finding that more delay in granting permanency to the boys' placement with their grandparents would cause them harm.
One of the boys was so distressed by his conflicting feelings that he had suicidal thoughts and regressed to wetting his bed around the time of visitations. To Dr. Dougherty, both boys expressed a fervent wish that their home with their grandparents be quickly made a permanent placement and for an end to the Division's involvement in their lives, with its all its disruptions and demands.
The Division presented sufficient evidence to prove by the clear and convincing evidence standard of proof that defendant had not eliminated the source of the harm she inflicted on the boys.
To satisfy the third prong of the statute, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home," and the trial court must also have "considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). This prong "contemplates efforts that focus on reunification of the parent with the child . . . ." K.H.O., supra, 161 N.J. at 354. Here, the Division's original goal after the children were removed from defendant's home was to bring about the family's reunification. The Division altered its permanency plan only when defendant's drug use and the dangers presented in her home did not cease.
Defendant contends that alternatives to termination of her parental rights were not adequately considered. Specifically, she argues that kinship legal guardianship was not correctly explained to the grandparents and the boys. Defendant also argues that the Division did not provide enough "therapeutic visitation" sessions, and this further demonstrates that prong three was not satisfied.
The trial court relied on testimony that defendant was offered and received parenting skills classes, psychotherapy, substance abuse counseling, and family therapy. The court concluded that these efforts were reasonable and in satisfaction of the Division's statutory obligations. We find no basis to disturb that finding.
With respect to kinship legal guardianship, the court reviewed reports and heard testimony from Dr. Weitz stating that she did not recommend kinship legal guardianship as an alternative to adoption. The discordant relationship between defendant and the grandparents did not bode well for kinship legal guardianship.
Additionally, the Supreme Court confirmed in P.P. that, when the permanency provided by adoption is available, kinship legal guardianship is not a defense under N.J.S.A. 30:4C-15.1(a)(3) to termination of parental rights. P.P., supra, 180 N.J. at 513. Here, because adoption by the grandparents is feasible and strongly desired by boys who are of an age to express their desires, kinship legal guardianship is not an appropriate alternative. The trial court correctly concluded that the Division proved the third prong of the statute.
The fourth prong — requiring that termination will do no more harm than good — is a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453 (quoting G.L., supra, 191 N.J. at 609). This inquiry depends on the strength and value of the various bonds the child has created with the parent and other caregivers and "necessarily requires expert inquiry . . . ." K.H.O., supra, 161 N.J. at 355. The fourth prong is also concerned with "the child's need for a permanent and stable home, along with a defined parent-child relationship." H.R., supra, 431 N.J. Super. at 226 (internal quotation marks omitted). Thus, courts should be especially attuned to whether refusing termination would "expose the [child] to the dangers and instability" of the parental bond, or "disrupt any permanency" that the child may have established elsewhere. M.M., supra, 189 N.J. at 287.
In this case, the trial court fully addressed the fourth prong in its oral opinion. The judge noted Dr. Weitz's testimony that defendant "was never able to manage a household of so many children in a minimally adequate manner." Dr. Weitz further testified that defendant "does not understand [the boys'] needs. And, therefore, they go unmet. . . . Of utmost concern is her lack of compassion for their emotional needs." As to Dr. Dougherty, the judge noted that he did not dispute Dr. Weitz's findings but believed that "some more counseling with mom and the children, to see if a better relationship can be fostered" would be in their best interest. The court stated that four years had already passed and "[t]he children need a stable, secure, permanent home with reliable, consistent caregivers. . . . It would be a misapplication of the law to keep a child in limbo, hoping for a long term reunification plan."
To Dr. Dougherty, the primary harm of terminating defendant's parental rights would be that the grandparents might cut all ties between the boys and defendant. Although a bond exists between defendant and the boys, the record does not establish that the boys will actually be harmed if that eventuality were to occur. Not only did the boys' therapist report that they "appear a lot happier when visits [with defendant] are missed," there is no evidence that termination of defendant's parental rights would cause the harm that Dr. Dougherty fears.
Whether these two boys will remain in contact with defendant may depend on her willingness to make amends with the grandparents and the boys' preferences as they grow older. The Family Part was not clearly mistaken or wide of the mark in elevating the boys' need for permanency over defendant's and the boys' need to have periodic contact. The court did not err in concluding that termination of parental rights would not do more harm than good.
Overall, substantial credible evidence supports the Family Part's conclusion that the Division proved all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. There was no error in entering judgment terminating defendant's parental rights.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION