Opinion
DOCKET NO. A-2868-13T4 DOCKET NO. A-2869-13T4
06-05-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.G. and F.C.-G., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF A.R.G., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant M.G. (Carleen M. Steward, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant F.C.-G. (Victor E. Ramos, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R.G. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FG-11-29-11. Joseph E. Krakora, Public Defender, attorney for appellant M.G. (Carleen M. Steward, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant F.C.-G. (Victor E. Ramos, Assistant Deputy Public Defender, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kathryn Talbot, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor A.R.G. (Rachel E. Seidman, Assistant Deputy Public Defender, on the brief). PER CURIAM
These consolidated matters return to us following the remand we ordered in N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 169-75 (App. Div. 2012). M.G.'s and F.C.-G.'s parental rights to their daughter Audrey were terminated by final judgment in April 2011. The trial court had entered default against both for their failure to comply with court-ordered services, notwithstanding their active defense of the action, and allowed the Division of Child Protection and Permanency to rely upon the written reports of its experts without producing them for cross-examination at the ensuing proof hearing. Although expressing no opinion on the merits, we found those errors "combined to deprive [the father] of the fundamentally fair procedures to which he was entitled before an order terminating his parental rights could be entered." Id. at 175. We thus reversed and remanded for a new trial.
This is a fictitious name chosen to protect the child's privacy.
We had already granted the Division's motion in F.C.-G.'s case vacating the default entered against her and remanding for a new trial.
Following the remand, the Division reinstated visitation and completed new evaluations. The Law Guardian and M.G. also secured experts, who conducted their own evaluations. The matter was thereafter tried anew as to both parents with the experts testifying and subject to cross-examination. Following a fourteen-day trial conducted on non-consecutive days, a different trial judge found that the Division had established all four prongs of N.J.S.A. 30:4C-15.1a by clear and convincing evidence and terminated M.G.'s and F.C.-G.'s parental rights in February 2014. Having now reviewed the entire record, we affirm that judgment by the trial court.
Audrey, the ninth child of F.C.-G., the seventh child of M.G., and the fourth child of their marriage, was born December 24, 2009, testing positive for marijuana. When she was ready for discharge from the hospital five days later, the Division executed an emergency removal and placed her in the resource home where she still resides. F.C.-G.'s and M.G.'s rights to Audrey's three older siblings had already been terminated by Pennsylvania authorities by the time she was born. Indeed, all eight of F.C.-G.'s other children had already been permanently placed outside of her care. She had not been employed for ten years and was not seeking employment. None of M.G.'s children was in his care either. He likewise was unemployed and not seeking employment.
Over the course of the following fourteen months, F.C.-G. and M.G. failed to engage in recommended therapy and substance abuse counseling, although both acknowledged a history of illegal drug use and both had been diagnosed with cannabis abuse by an assessment counselor retained by the Division. They also failed to attend domestic violence counseling, despite a history of violence in their relationship. During 2010, F.C.-G. reported twice to the police that M.G. had punched or choked her, with the police noting visible injuries each time. After the second of these incidents, M.G. was arrested and jailed for four months. M.G. consistently denied to the Division ever engaging in domestic violence toward F.C.-G. and never completed court-ordered anger management counseling. The counselor reported that M.G. "used most of his time in [their] sessions to bitterly denounce what he saw as an unfair system which kept him from exercising what he saw as a natural right to parent his children, without any outside interference."
M.G. reported to the evaluator that he had spent between three and six years in prison for possession of illegal drugs.
M.G. was reportedly in his first semester as a full-time student at Mercer County Community College in April 2010 and claimed to have obtained employment in Philadelphia but never provided the Division with the name of the company or any verification of the job or his salary. While he was consistent in attending supervised visitation each week with Audrey, pick-ups and drop-offs were at the Trenton train station where M.G. slept. F.C.-G., although initially very regular in her supervised visits with Audrey, became increasingly less so as time passed, with her compliance deteriorating markedly by the time Audrey was nine months old.
Following the first judgment terminating parental rights in April 2011, the Division arranged final visits with both parents. F.C.-G. did not attend her visit with Audrey. Following our remand in July 2012, the Division contacted F.C.-G. with the intent of setting up therapeutic visits, psychological assessments and bonding evaluations. Despite notice, F.C.-G. engaged in none of these things. She has not seen Audrey since March or April 2011, when Audrey was fifteen or sixteen months old.
The Division was initially unable to contact M.G. following the remand. He later reported he was in jail "for a couple months" for violation of probation. M.G. attended therapeutic visits with Audrey regularly between October 2012 and March 2013 and supervised visits thereafter. He refused any and all offers of services from the Division but participated in psychological and bonding evaluations by the Division and the Law Guardian, as well as with his own expert.
Each of these experts testified at trial. The Division's expert testified that M.G. reported he was living in a boarding home when he appeared for the evaluation in December 2012, and although dressed appropriately, had dirty nails and a bad odor. She found him no better equipped to be a parent to Audrey than when she first evaluated him in 2011, still unable to admit to any shortcomings or faults. Illustrating her point, she recounted that M.G.'s response in the sentence completion test to the question asking what he does not like about himself was "nothing." When she asked him why he failed to make himself available to the Division in the summer of 2012 when they were trying to reach him following the remand, "he said he didn't feel like talking to them." She explained why she found this significant:
Because it is about a child, this is about a child who's growing and developing and
continuing to develop a bond with her foster parents while he's out there not doing anything that would further allow him to get to the point where he can raise her. He's not visiting with her, he's not engaging in services and he's just allowing time to go by. And in doing so, he's continuing to secure the bond that she has with her caregivers.
The Law Guardian's expert concluded after her evaluation of M.G. that he was "unwilling to be introspective, to look at himself, to acknowledge his own problems, to accept other people's feedback about his own problems so that he tends to blame others for his difficulties." The expert reported that M.G. characterized his relationship with F.C.-G. as "cordial," although they were no longer together. He denied any domestic violence against F.C.-G., telling the expert that F.C.-G. had made up the incidents because she was angry with him and suspected him of cheating. When the Law Guardian's expert asked if he had cheated on F.C.-G., "his response was well, of course, I'm a man, I have my needs." When asked why he would admit to a domestic violence charge for an incident that never happened, he would say nothing other than he had done so for "personal reasons."
The expert opined that M.G.'s "propensities for domestic violence would place [Audrey] at risk of witnessing violence between [M.G.] and his partner." She testified that she considered the question of whether M.G. was actually a substance abuser to be "a peripheral issue" because "[t]he other issues that are involved here are much more salient at this point." Substance abuse would be "a complicating factor," but her opinion would be the same as to his capacity to parent even "if he was not touching any substance at this point."
M.G.'s expert, although noting that M.G. "continues to need assistance in stabilizing his life, and regaining the financial ability to care for his daughter," saw no "intellectual deficits" or "serious psychological problems" that would interfere with M.G.'s ability to parent Audrey. Conceding that M.G. "certainly has had some problems in the past," M.G.'s expert concluded on the basis of M.G.'s current "psychological presentation" that he "is capable of providing parenting to his daughter [Audrey] and is capable of providing a positive parent-child relationship with her that will benefit her development as she gets older."
Regarding their bonding evaluations, each of the experts testified that Audrey, then almost three, was securely bonded to her foster parents, who have cared for Audrey her whole life. All opined that Audrey would suffer significant harm were she removed from their care, although at trial, M.G.'s expert testified only that Audrey would suffer "mild to moderate emotional trauma" if removed from her foster parents. In contrast, both the Division's and the Law Guardian's experts testified they found no bond between M.G. and Audrey. Both opined that Audrey would not suffer any significant distress were M.G.'s parental rights terminated, and that her foster parents were very capable of addressing any distress that might arise. Neither believed M.G. could ameliorate the devastating effects Audrey would suffer from the loss of her foster parents.
M.G.'s expert, although not characterizing the relationship between M.G. and Audrey as a "bond," claimed there was a positive relationship, but not one as close as the one between Audrey and her foster parents. He offered no opinion as to whether Audrey would suffer any harm were her relationship with M.G. severed.
After the experts had conducted their evaluations, there was yet another domestic violence incident between F.C.-G. and M.G. In early March 2013, M.G. moved into a studio apartment in Trenton, and F.C.-G., who was living in Pennsylvania, came to "help in setting up the place," notwithstanding the final restraining order and no-contact orders in place.
One night, after F.C.-G., her adult daughter, and her tenth child, a sixteen-month-old daughter born after Audrey, had been staying with M.G. in his new apartment for some period, F.C.-G. called police to report an "argument became physical." She claimed M.G. grabbed her by the wrist, "began throwing her about the room and slammed her to the floor," punching her in the mouth. The police noted she had abrasions on her wrist and a swollen lip. M.G. claimed F.C.-G. was the aggressor; that she grabbed him by the neck and scratched him. He did not know how her lip became swollen but thought she may have hit it against the bathroom door. F.C.-G. and M.G. both admitted they had been drinking, although they denied being intoxicated.
M.G. kicked F.C.-G. and her adult daughter out of his apartment but did not allow her to take the baby. He claimed he did it because it was late and he knew F.C.-G. had no money. While F.C.-G. was outside speaking to the police, M.G. climbed out of a window with the baby and went to a friend's house, where he was arrested.
After becoming aware of F.C.-G.'s tenth child as a result of this incident, the Division obtained custody of the baby and substantiated allegations of neglect against both F.C.-G. and M.G. A few months later, the Division placed the infant in the same resource home as Audrey, where they both remained at the time of trial.
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Analyzing the facts within the framework provided by the four prongs of N.J.S.A. 30:4C-15.1a, the trial judge found F.C.-G.'s drug use during pregnancy endangered Audrey at birth. The judge further found M.G. and F.C.-G. "had an unstable lifestyle" that had already resulted in the removal of their older children and neither had a suitable "home to which [Audrey] could be taken." There was a history of "on-going unremediated domestic violence in their relationship," eventually leading to M.G.'s incarceration and the removal of another child born after Audrey. The judge noted that M.G. and F.C.-G. "continue to engage in the same pattern of conduct which led to the removal of their children in Pennsylvania and [Audrey]," and that M.G. "continues to deny the existence of any of these issues" or the need to remediate them.
She further concluded that "these parents have not engaged in services to assist them in remediating the conduct that has led to the removal of [Audrey] and other children. [M.G.] continues to insist that he . . . needs no services. [F.C.-G.] does not participate even in visits. She last saw [Audrey] two years ago." The judge further emphasized that all of the psychological experts in this matter agreed that Audrey was bonded to her foster parents and would suffer psychological harm if separated from them.
The judge noted that "the credible testimony of the caseworkers has outlined the extensive services offered to [F.C.-G.] and [M.G.] over the four years of the pendency of this case. None have been successfully completed by either." She found no alternatives to termination because reunification was not possible, and two relative placements were considered and ruled out; one because the individual had unresolved criminal charges and the other because she lived in Virginia, had never visited Audrey, and the Division determined it was in Audrey's best interests to remain in her successful foster placement.
Finally, the judge concluded that termination of F.C.-G.'s and M.G.'s parental rights would not do more harm than good because she concurred with the Division's and the Law Guardian's experts "that removal from the care of her foster parents would cause [Audrey] serious and abiding harm which neither of her parents could ameliorate."
F.C.-G. and M.G. argue that the trial judge erred in finding the Division proved all four prongs of N.J.S.A. 30:4C-15.1 by clear and convincing evidence. We disagree.
N.J.S.A. 30:4C-15.1 provides "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). Our review of the trial court's application of these standards to the facts of record is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "'unless they are so wholly unsupportable as to result in a denial of justice.'" Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (internal quotation marks and citations omitted).
Applying those standards here, we are satisfied that the trial judge's findings are amply supported by the credible testimony in the record. M.G. and F.C.-G. are now both forty years old. Audrey is now five and a half years old and has never lived with either one of them. F.C.-G. has not even seen her since she was fifteen or sixteen months old. Although there was no evidence that either physically abused their daughter, there was ample evidence to support the judge's determination that neither was able to maintain a stable home for her, that there was "on-going unremediated domestic violence in their relationship" which continued even after they ceased living together and were ordered to have no contact, and that they "continue to engage in the same pattern of conduct which led to the removal of their children in Pennsylvania" as well as Audrey.
The harm M.G. caused Audrey was his utter failure to provide a safe and stable home for her and his inability to address or make any improvement in the issues causing his habitual unemployment, repeated homelessness, and recurring domestic violence against her mother. F.C.-G. likewise harmed Audrey by her instability, unemployment, lack of involvement, and absence of any improvement.
Given these circumstances, M.G.'s contention that it was "the mistaken actions of the Division, as well as the original court, [which led] to the bond with the resource parents" and that he "cannot remediate a harm that he did not cause," only underscores the trial court's finding that he "continues to deny the existence of any of these issues" or the need to assume responsibility for correcting them. M.G.'s denial of his obvious intractable problems and unwillingness to engage in services that could effect a change supports the conclusion that he is very unlikely to correct any of these issues in the foreseeable future.
Both parents claim the trial judge erred in concluding that the Division considered alternatives to termination when it never adequately investigated placement with M.G.'s sister in Virginia. Although N.J.S.A. 30:4C-12.1a places an obligation on the Division to determine whether any relatives may be able to provide care for a child in the care or custody of the Division, the law does not create a presumption in favor of relative placement. N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 82 (App. Div. 2013) (noting that the Division should evaluate relatives as potential caretakers, but there is no presumption in favor of placement with a relative), certif. denied, 217 N.J. 587 (2014).
Here, the record demonstrates the Division was working very closely with F.C.-G. and M.G. towards reunification for the first six months of Audrey's life and, even after M.G. was incarcerated in July 2010, the Division continued to work with F.C.-G. towards reunification with her alone. It was reasonable, under these circumstances, for the Division to decline to place Audrey with a relative in Virginia who had never seen the child or sought visitation, regardless of how qualified that relative may have been to care for a child. Indeed, an out-of-state placement at that point would have interfered with the possibility of reunification, as F.C.-G. and M.G. would not have been able to visit with Audrey.
By the time the guardianship complaint was filed in December 2010 and the Division ruled out M.G.'s sister and sent her a letter to that effect in January 2011, it was becoming increasingly clear that F.C.-G. was failing to complete services and attend visits with Audrey and was not making a sufficient effort to re-engage. We agree with the trial judge that it was reasonable for the Division at that point to decline to disturb Audrey from a successful foster placement where she was thriving and appeared bonded to her foster parents in favor of initiating a lengthy interstate compact process with Virginia.
Having reviewed F.C.-G.'s and M.G.'s remaining arguments, we find them to be of insufficient merit to warrant discussion in a written opinion. 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