Opinion
DOCKET NO. A-5873-12T1
05-05-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. E.C.J., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF E.A.J., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.A.J. (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Harris.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-146-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Paul V. Buonaguro, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor E.A.J. (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
Defendant E.C.J. appeals from the July 17, 2013 Family Part judgment terminating her parental rights to her son E.A.J. (Edward) born in December 2003. We affirm.
We refer to the children with fictitious names to protect their privacy.
The Division of Youth & Family Services (Division) has had extensive involvement with E.C.J.'s family that included nine referrals dating back to September 1996, when the agency substantiated E.C.J. for neglect after she gave birth to her first child, Donna, who tested positive for cocaine along with her mother. Nearly seven years later, in May 2003, E.C.J. was again substantiated for child neglect after admitting that she smoked crack cocaine while she was three months pregnant with Edward. Her husband, E.L.J., was substantiated for physical abuse on January 20, 2004, April 5, 2005, December 11, 2008 and March 30, 2009, all for beating or hitting Donna. In addition, E.C.J. was substantiated for child abuse involving a July 1, 2010 incident wherein a verbal altercation between E.C.J. and her daughter escalated into physical violence, with E.C.J. hitting Donna with a broom and Donna cutting her mother on the arm with a knife.
The Division is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.
E.C.J. has a thirty-year history of substance abuse as well as a long and troubled record of domestic violence and mental illness. She began using cocaine and alcohol at age sixteen and her cocaine use continued through much of her adult life. She has been treated for substance abuse at three different programs, but has continually relapsed. In fact, E.C.J. used cocaine as recently as June 17, 2013, less than one month prior to the guardianship trial.
E.C.J.'s frequent relapses in her cocaine usage as well as her inability to protect her children from domestic violence perpetrated by her husband and herself have resulted in multiple removals of Edward and his sister Donna from her care and custody. A Division caseworker testified that Donna had been removed from E.C.J.'s home seven times by the Division and once by the court, and that Edward had been removed five times, as a result of either domestic violence or E.C.J.'s cocaine use.
At the time of the guardianship trial, Donna, age sixteen, was entering the Division's Independent living program and is not a party to this appeal.
The Division's expert, Dr. Frank J. Schwoeri, evaluated Edward and E.C.J. and performed a bonding assessment between Edward and his mother, and between Edward and his foster parent K.H. with whom he had been living for one year and who wished to adopt him. Dr. Schwoeri diagnosed E.C.J. on Axis I with chronic severe cocaine dependence; generalized anxiety disorder, ruleout post-traumatic stress disorder; and recurrent severe major depression. On Axis II, he diagnosed her with borderline personality disorder with "notable paranoid, narcissistic and antisocial traits."
According to Dr. Schwoeri, E.C.J. experiences "serious personality level dysfunction incompatible with emotional stability and successful safe and effective parenting." Moreover, E.C.J. struggled to display empathy, indicative of a lack of nurturing skills that possessed the potential for her to be "unable to handle parenting stresses . . . ."
Dr. Schwoeri found that E.C.J's cocaine abuse was a response to the anxiety and depression experienced due to the domestic violence perpetrated upon her and her daughter Donna by her husband, E.L.J. Because of her long history of relapses and evidence of recent use, Dr. Schwoeri opined that E.C.J.'s chance of permanently abstaining from cocaine was poor to fair.
Dr. Schwoeri also evaluated Edward, who was exhibiting significant behavioral problems. Dr. Schwoeri diagnosed Edward with conduct disorder, ruleout complex traumatic stress disorder (CTSD). He considered CTSD because of the early childhood trauma caused by E.C.J. and her husband. He opined that Edward would be at a risk of harm if reunited with E.C.J. because E.C.J. has demonstrated poor impulse control and her view of certain behavior by her children as deliberate, intentional, and aggressive acts against her, instead of mere developing childhood behavior, could result in physical abuse. He also stated that Edward's development had been disrupted by the constant removals and that the removals were "significantly harmful" to his future development.
According to the Division caseworker, because of his behavior, Edward receives behavioral assistance services and individual therapy. However, he has been more successful in his foster parent's care, despite some problems with anger management, because of K.H.'s calm and patient attitude.
On April 10, 2013, Dr. Schwoeri conducted a bonding evaluation between Edward and E.C.J. The results of the evaluation were as follows:
While both children expressed a clear preference to return to live with their biological mother, this preference appears to be based on an idealized and wish-fulfilling notion of returning to a stable home environment which [E.C.J.] has never been able to provide consistently over any extended period of time. Neither of the children have lived with their mother for more than a year and a half at a time and both have had multiple removals due to various problems, including substance abuse, domestic violence, and physical abuse. InAccording to Dr. Schwoeri, due to the multiple removals from his mother's care, Edward experienced "insecurity and instability in his earliest and most important relationships," and therefore had an insecure or anxious attachment to E.C.J.
addition, [E.C.J.] has recently again relapsed to illicit substance abuse and it is clear that her drug and alcohol use in the past has contributed significantly to the family dysfunction. It would not be in the children's interest to return to the care of their mother.
. . . .
Similarly for [Edward], if he is not returned to his mother and his mother's rights were terminated, his current foster parent has already expressed the clear intention to facilitate [Edward]'s continued relationship with his biological mother as long as his mother remains abstinent from drug use [ ]. Thus, any harm which would come to [Edward] as a result of the termination of his mother's rights, would be significantly mitigated by his foster/adoptive parent['s] clear willingness to continue to facilitate their relationship as appropriate to [Edward]'s needs.
While the condition also affected Edward's ability to form a secure attachment as of then to K.H., for whom a bonding evaluation with Edward was also performed, Dr. Schwoeri nevertheless opined that K.H. had the capacity to help Edward develop a secure attachment because she, unlike E.C.J., was attuned and responsive to his needs. The expert therefore concluded that it would be more harmful to reunite Edward with E.C.J. than to keep him with his foster parent, by whom he was willing to be adopted, because with E.C.J. there was the risk of physical harm and neglect and also because removal from K.H. would cause further harm. This expert testimony was unrebutted.
Earlier, on August 22, 2012, Dr. Alan J. Lee, a psychologist, had performed a bonding evaluation with E.C.J. and her children. Dr. Lee found that Donna's and Edward's attachment to their mother was insecure and ambivalent.
Although Edward's stated preference was to return to his mother, he expressed a desire to be adopted by K.H. if reunification were not possible. K.H., who had custody of Edward for nearly a year at the time of the guardianship trial, and who manages care for youths with behavioral and mental health issues, wishes to adopt Edward. She was also willing to have E.C.J. visit Edward as long as she remained drug free.
Immediately following the trial, Judge Linda Baxter rendered an oral decision, finding that the Division had satisfied the statutory best interests test, N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. As to the first prong, the judge found that the continued domestic violence and removals that characterized E.C.J.'s parental relationship with her son endangered his safety, health and development. The second prong was satisfied by E.C.J.'s inability to cease abusing cocaine despite her best efforts, which demonstrated that she was unable to eliminate the harm facing the child. As to the third prong, the judge found that the Division provided more than adequate services to E.C.J. and that neither kinship legal guardianship nor placement with another family member was a viable alternative. Regarding the fourth prong, the judge concluded:
As I've said, there is a bond, and indeed, it is a loving bond between [Edward] and his mother, and he is, as I think I've already said, far more devoted to his mother than what we usually see in guardianship trials.In other words, the bond between E.C.J. and Edward was insecure, which would lessen the harm of terminating the mother's parental rights. When measured against the risk of greater harm to the child arising from a future removal or violence if returned to the mother, the court concluded that termination would not cause more harm than good.
For the reasons that I explained earlier though, I do accept Dr. Schwoeri's opinion that the bond between the two is insecure, and that is, of course, based upon the literature. And it is based upon the fact that a child who has been removed as many times as [Edward] has, that that has to have an impact on - - on the bond, and I find for that reason that the bond between mother and child is insecure.
I also find that the opinion that Dr. Schwoeri expressed on that subject comports with common sense. It makes sense that a child, despite what he says on the surface, would have to, deep down, wonder whether his parent will be there for him permanently when his experience tells him that he's been taken away four or five times already. I find that the risk of relapse and removal is simply too great. Another removal, I think, would be absolutely devastating to this child. He's already emotionally fragile.
The guardianship judgment was entered on July 17, 2013. This appeal followed.
On appeal, E.C.J. raises one, and only one, issue for our consideration:
THE TRIAL COURT ERRED IN CONCLUDING THAT THE DIVISION HAD DEMONSTRATED, BY CLEAR AND CONVINCING EVIDENCE, THAT THE TERMINATION OF THE MOTHER'S PARENTAL RIGHTS WOULD NOT DO MORE HARM THAN GOOD.After reviewing the record developed before the trial court, and mindful of prevailing legal standards, we affirm substantially for the reasons expressed by Judge Baxter, and conclude that E.C.J.'s claim that the Division failed to prove that termination would not cause more harm than good is without merit. We add only the following brief comments.
This appeal comes to us supported by two kinds of deference. First, it is entitled to the deference to which any trial judge's fact-finding is entitled. J.D. v. M.A.D., 429 N.J. Super. 34, 42 (App. Div. 2012) (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Second, it is cloaked by the special deference accorded by the Family Part's particularized jurisdiction in family matters based on its acknowledged expertise in the field of domestic relations. See N.J. Div. of Youth & Family Servs. v. T.S., 429 N.J. Super. 202, 216 (App. Div. 2013) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Judges who "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999)); see also N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007) (noting that the trial court has the best "feel of the case").
The four factors of the best interests test place an effective brake upon unwarranted terminations of parental rights. In their application, the factors "are not [discrete] and separate but represent an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. M.W., 398 N.J. Super. 266, 285 (App. Div.), certif. denied, 196 N.J. 347 (2008).
Prong four of the best interests standard "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The Court has counseled that "[t]he question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). "[A] decision to terminate parental rights should not simply extinguish an unsuccessful parent-child relationship without making provision for . . . a more promising relationship . . . [in] the child's future." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610 (1986) (alterations in original) (quotation omitted). Our case law also recognizes that "a child deeply needs association with a nurturing adult" and that "permanence in itself is an important part of that nurture." Ibid.
However, "[w]hen a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108. Conversely, courts have also recognized that the termination of parental rights without a compensating benefit, such as adoption, may adversely impact the child. Id. at 109. "Such harm may occur when a child is cycled through multiple foster homes after a parent's rights are severed." Ibid.
Here, there is the clear prospect of an adoptive home, as Edward's current foster parent has expressed a desire to adopt him. Although Edward indicated that adoption was not his first choice, it promises to provide a stable and safe living environment when compared to the volatile and potentially harmful home life offered by E.C.J. due to her frequent substance abuse relapses and domestic violence issues. Indeed, Edward's multiple removals and separation from E.C.J. in the past have contributed to his anxiety issues, which in turn have retarded his ability to form stable relationships. Clearly then, the court did not merely find, as E.C.J. suggests, that Edward would be "better off" in foster care, but that the continuing instability caused by E.C.J.'s condition would harm him and that removal from such an environment would not cause greater harm than good. This determination is amply supported by the evidence, especially the expert testimony of Dr. Schwoeri.
In conclusion, after appraising the record in light of the findings of fact contained in the trial judge's oral opinion, we find nothing that would impel our intervention. Judge Baxter carefully considered the relevant evidence and explained her reasons in a logical and forthright fashion. An appellate court, when presented with such an illuminated record, need not repeat the details of the case at length or replicate the trial court's opinion. Suffice it to say, when viewed as the trial judge viewed them, the four prongs of the best interests test were properly evaluated and applied.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION