Opinion
DOCKET NO. A-0751-16T3 DOCKET NO. A-0753-16T3
10-20-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. F.C. and W.S., Defendants-Appellants. IN THE MATTER OF F.S. and W.A.S., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant F.C. (Stephania Saienni-Albert, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant W.S. (Stephen P. Dempsey, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elisabeth E. Juterbock, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Leone and Mawla. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0121-16. Joseph E. Krakora, Public Defender, attorney for appellant F.C. (Stephania Saienni-Albert, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant W.S. (Stephen P. Dempsey, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elisabeth E. Juterbock, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Margo E.K. Hirsch, Designated Counsel, on the brief). PER CURIAM
In these consolidated matters, defendants F.C and W.S. appeal from a September 30, 2016 judgment terminating parental rights to their minor children, W.A.S. (Walter) and F.S. (Fiona). Defendants contend plaintiff the New Jersey Division of Child Protection and Permanency (Division) failed to prove all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
We use pseudonyms to protect the children's privacy.
I.
The following facts are taken from the record. F.C. and W.S. are the biological mother and father of Walter and Fiona who are presently seven and five years old. Both parents are unemployed and receive disability benefits. F.C. has a low I.Q., and W.S. is partially paralyzed as a result of a gunshot wound. Both parents struggle with substance abuse, and neither has had stable housing since 2012. The children have several cognitive and physiological health conditions requiring medical attention. Walter in particular is diagnosed with and medicated for attention deficit hyperactivity disorder and oppositional defiant disorder. He was classified as pre-K disabled.
On March 20, 2012, the Division received its first referral alleging child neglect and drug use by F.C and W.S. Though the allegation of neglect was unfounded, F.C. and W.S. admitted to smoking marijuana and agreed to an evaluation with a certified alcohol and drug counselor (CADC). The evaluation results showed F.C. tested positive for marijuana, and W.S. positive for PCP, marijuana, and barbiturates. Based on the CADC assessment, the Division implemented a safety protection plan and services on April 18, 2012. The safety plan required F.C. to attend a substance abuse treatment program, and W.S. to have only supervised contact with the children until he completed a drug counseling program.
In the substance abuse treatment program, F.C. tested positive for marijuana on numerous occasions, and as a result was discharged from the program. After her discharge, F.C. tested positive for marijuana on at least twelve separate occasions. W.S. also demonstrated little progress as he tested positive for marijuana and PCP.
In June 2012, the Division placed home health aides from Visiting Homemaker Services of Hudson County in F.C.'s apartment to provide in-home support for the family. However, the reports from the service show F.C. and W.S. failed to cooperate with the service or respond to the children's needs, including ensuring basic hygiene and a clean home. Homemaker Services continued to assist the family through April 2013, nearly a year of service.
On June 29, 2012, W.S. began an outpatient drug program at Health Path Consulting Services. However, he was discharged less than one month later for non-compliance and continued drug use.
In August 2012, F.C. began inpatient treatment in the Mommy-and-Me program at Straight and Narrow. There, she exhibited parenting and behavioral issues during instruction on parenting skills, group therapy, and anger management classes. F.C. completed treatment in February 2013, and was referred to Eva's Village and Sunrise House for transitional housing, but refused to participate in either program. F.C. later admitted to smoking marijuana immediately following completion of the Straight and Narrow program.
W.S. began a second outpatient drug treatment at C-Line Community Outreach in September 2012. He immediately tested positive for marijuana, PCP, and alcohol. He continued to test positive for PCP numerous times in the ensuing five months, and then ceased attending the program altogether.
On March 5, 2013, the Division filed a complaint for care and supervision of Walter and Fiona. The same day, F.C. returned to Project Second Chance for outpatient sessions. She continued to test positive for marijuana a week later. She was discharged later that month for non-compliance.
In April 2013, F.C. and the children were admitted into Sunrise House Halfway Home, an inpatient program. There, staff reported numerous instances of non-compliance and inappropriate behavior by F.C.
In May 2013, W.S. began counseling at New Pathways for drug abuse. He tested positive for PCP twice in June 2013, and was discharged for non-compliance.
In July 2013, F.C. was evaluated by the Center for Evaluation and Counseling. F.C. reported a prior diagnosis of depression for which she had been prescribed medication. She asserted that she no longer took the medicine due to a lack of insurance. As a result, the Division arranged for a psychological assessment by Dr. Christopher Friedrich in September 2013. Dr. Friedrich concluded F.C. was a high-risk parent for child neglect. This was exacerbated by F.C.'s unwillingness to consider psychotropic medication to address her mental health.
On September 8, 2013, F.C was transferred to the Mommy-and-Me program at Eva's Village. F.C.'s progress at Eva's Village was poor. F.C. had at least ten instances where she failed to adequately supervise the children. F.C. bullied fellow residents, and refused to engage in outpatient treatment or submit to urine screens. In December 2013, the Division received a discharge summary from Eva's Village stating F.C. would be discharged effective January 3, 2014.
As a result of both parents' lack of progress and resistance to the services provided, the Division filed for custody of the children, which the trial court granted on December 13, 2013. The children were transferred to a resource home where they remained until March 13, 2014, when they were transferred to the relative resource home of a paternal cousin K.M. They lived with K.M. through the entry of judgment.
After the children were removed, F.C. and W.S. continued not to comply. F.C. agreed to enroll in an intensive outpatient program, but failed to do so, claiming she did not need treatment. The Division scheduled three CADC assessments in April 2014 for F.C., but she did not attend. When F.C. did attend the fourth assessment in May 2014, she disclosed her continued marijuana use. The Division referred F.C. to New Pathways and she successfully engaged in treatment, but her progress was short-lived. F.C. made little progress in anger management, and by September 2014 she began testing positive for marijuana and missing therapy sessions. She continued to test positive for marijuana in 2015, and was discharged from the Integrity House rehabilitation program for exhibiting continual anger and non-compliance.
F.C.'s visitations with the children also demonstrated her poor compliance and progress. After the removal, F.C. was afforded four hours per week of supervised visitation. The Division's records demonstrate F.C. arrived late to visitation, and her interactions with the children were inappropriate. F.C. was physically aggressive with the children and reacted negatively to their attempts to gain her attention. On other occasions, F.C. ignored the children's misbehavior choosing instead to play with her phone.
W.S. also demonstrated no progress after the children's removal. In December 2013, seventeen days after the children's removal, and again in January 2014 he tested positive for PCP. W.S.'s PCP use continued throughout 2014 and 2015. He failed to comply with court ordered evaluations and substance abuse treatment, and was discharged from several programs for non-compliance.
In May 2015, W.S. was incarcerated for assaulting F.C. with a knife and unlawful possession of a weapon. He was released in August 2015, but failed to notify the Division. Although the Division continued to offer W.S. substance abuse services, he failed to attend any CADC evaluations from November 2015 to July 2016. The Division also offered W.S. assistance finding housing and transportation throughout the time he remained un-incarcerated.
W.S. was also afforded visitation, but did not attend with regularity. When W.S. did attend visitation he did little to aid F.C. with the children, and displayed a lack of interest in parent-child interaction.
Prior to trial, F.C. underwent psychological and bonding evaluations with the Division's expert Dr. Robert Kanen. The Law Guardian's expert Dr. Antonio Burr also evaluated F.C., as did F.C.'s expert Dr. Andrew Brown.
Dr. Kanen described F.C. as "severely hostile." He concluded F.C.'s chronic anger, irritability, cognitive defects, history of drug and alcohol abuse, and social history resulted in a severe parenting deficit, rendering her unable to adequately parent the children. Dr. Kanen opined reunification would expose the children to an unnecessary risk of harm.
Dr. Burr's evaluation described F.C. as "indifferent or unconcerned" with the children's developmental needs. He concluded F.C.'s hostile and belligerent attitude prevents her from functioning appropriately as a parent. He noted F.C.'s pervasive irritability causes her to lack empathy and effective parenting skills. Dr. Burr opined these deficits impeded the children's ability to achieve permanency and outweigh any bond they have with F.C.
Dr. Brown observed a bond between F.C. and the children. However he did not endorse the return of custody to F.C. because she could not keep the children safe from harm.
Drs. Kanen and Burr performed psychological and bonding evaluations on W.S. Dr. Kanen observed W.S. was disinterested and failed to engage with the children. He concluded the children do not recognize W.S. as a reliable parent, and reunification would likely cause the children serious and enduring harm.
Dr. Burr observed virtually no interaction between W.S. and the children. Dr. Burr opined W.S. was not a viable resource for the children. He noted W.S. "is not cognizant of his children's need for nurturing and safety." Dr. Burr concluded the children would experience greater loss if they were separated from the resource parent than W.S.
At trial Dr. Burr explained W.S.'s substance abuse causes him to "[continue] to engage in behavior that is deleterious to himself and potentially to the children."
Trial occurred over four days, and on September 30, 2016, the trial judge issued an opinion concluding the Division had established by clear and convincing evidence that termination of parental rights was appropriate. With respect to prong one of the best interests test codified in N.J.S.A. 30:4C-15.1(a), the trial judge stated:
Despite the Division's best attempts to engage [the parents] in treatment, they have failed to fully comply with a drug abstinence regimen and continue to lead unstable lives.
. . . .
Both children have exhibited unstructured behaviors and developmental delays resulting from the unstable lives of both parents. [The parents'] continued inattention to the needs of the children has and will continue to impair the health and development of both children.
The trial judge found the Division had met prong two of the best interests standard. The judge determined the parents' continued drug use and failure to complete drug treatment or transition services demonstrated an unwillingness to eliminate the harm to the children.
Addressing prong three, the trial judge recounted the extensive history of services provided by the Division that we have noted above. The trial court stated both parents were afforded drug treatment, psychological evaluations, homemaker services, and visitation, yet neither parent demonstrated success by having these services. The trial court concluded: "This Court finds that the Division provided reasonable efforts at treatment to [the parents]. The Division offered appropriate services that neither parent benefitted from."
The trial judge found the Division met the fourth prong of the best interests test. Considering the testimony of all three experts, the trial court credited the testimony of Dr. Kanen that the children "do not know [F.C.] as a reliable caregiver as she is non-comforting and non-nurturing to her children." The trial court also credited Dr. Burr's testimony that F.C.'s "drug use impacts negatively on her overall functioning and on her parenting."
The trial court similarly concluded W.S. was not a viable parent. The trial court credited Dr. Kanen's testimony that W.S. "has severe parenting deficits, having an intellectually disabled range of intelligence and severe impairment in reasoning and judgment." The trial court stated Dr. Kanen "further opined that [W.S.'s] cognitive limitations, substance abuse problems, severe [] personality disorder, and homelessness leave him unable to provide the care and supervision necessary to protect his children from potentially serious harm." The trial court concluded: "These conditions prevent him from providing his children with a permanent, safe and secure home now or in the foreseeable future."
The trial court found clear and convincing evidence of a bond between the children and the resource parent. Although there was evidence the children were familiar with F.C. and W.S., the trial court found credible Dr. Burr's opinion that "the attachment is questionable."
The trial court concluded termination of parental rights would not do more harm than good, and based on the cognitive and developmental needs of the children, they would be safe if separated from their parents. In this appeal, F.C. and W.C. challenge the trial court findings.
II.
The scope of our review on an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We will uphold a trial judge's fact-findings if they are "supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). No deference is given to the court's "interpretation of the law" which is reviewed de novo. D.W. v. R.W., 212 N.J. 232, 245-46 (2012) (citing N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 183 (2010); Balsamides v. Protameen Chems., 160 N.J. 352, 372 (1999)).
"We accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2014) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "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). We also accord deference to the judge's credibility determinations "based upon his or her opportunity to see and hear the witnesses." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006) (citing Cesare, supra, 154 N.J. at 411-13), certif. denied, 190 N.J. 257 (2007).
When terminating parental rights, the court focuses on the "best interests of the child standard" and may grant a petition when the four prongs set forth in N.J.S.A. 30:4C-15.1(a) are established by clear and convincing evidence. As codified, N.J.S.A. 30:4C-15.1(a) requires the Division prove:
(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.
"Importantly, those four prongs are not 'discrete and separate,' but 'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" G.L., supra, 191 N.J. at 606-07 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999)).
F.C. contends there was insufficient evidence supporting the court's findings on each of the four prongs of the best interests standard. W.S. attacks the sufficiency of the trial court's findings regarding the first three prongs. After reviewing defendants' arguments in light of the record and applicable legal principles, we are convinced there is substantial credible evidence supporting the trial court's findings of fact and determination the Division established by clear and convincing evidence under N.J.S.A. 30:4C-15.1(a), that it was in Walter and Fiona's best interest to terminate defendants' parental rights.
A. Prong One
The first prong of the best interests of the child standard requires the Division to establish that "[t]he child's safety, health, or development has been or will continue to be endangered by the parental relationship[.]" N.J.S.A. 30:4C-15.1(a)(1). "[T]he Division must prove harm that 'threatens the child's health and will likely have continuing deleterious effects on the child.'" N.J. Div. of Youth & Family Servs. v. A.L., 213 N.J. 1, 25 (2013) (quoting K.H.O., supra, 161 N.J. at 352).
The harm need not be physical, as "[s]erious and lasting emotional or psychological harm to children as the result of the action or inaction of their biological parents can constitute injury sufficient to authorize a termination of parental rights." In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992) (citing In re Guardianship of J.C., 129 N.J. 1, 18 (1992)). The focus of the harm is not on any isolated incident, but rather "the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." K.H.O., supra, 161 N.J. at 348. "Moreover, '[c]ourts need not wait to act until a child is actually irreparably harmed by parental inattention or neglect.'" Div. of Child Prot. & Perm. v. E.D.-O., 223 N.J. 166, 178 (2015) (quoting In re Guardianship of DMH, 161 N.J. 365, 383 (1999)).
The harm may be established by "a delay in establishing a stable and permanent home[.]" DMH, supra, 161 N.J. at 383. "A parent's withdrawal of [] solicitude, nurture, and care for an extended period of time is in itself a harm that endangers the health and development of the child." Id. at 379 (citing K.H.O., supra, 161 N.J. at 352-54). Additionally, a parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child] . . . constitutes a parental harm to that child arising out of the parental relationship [that is] cognizable under N.J.S.A. 30:4C-15.1(a)(1) and (2)." Id. (citing K.H.O., supra, 161 N.J. at 352-54).
F.C. argues the trial court erred in its analysis of prong one of N.J.S.A. 30:4C-15.1(a). She argues she never harmed her children. She further argues she disclosed her marijuana use, and never used marijuana in the presence of the children. She states the trial court failed to account for her depression and bi-polar disorders. She asserts she benefitted from the Division's services, which proves a termination of parental rights was unwarranted.
W.S. argues the trial court erred in its analysis of the first prong because there was no evidence presented that his parental relationship harmed the children or put them at risk. He contends DCPP failed to assist him in obtaining suitable housing, and further argues the court impermissibly relied on his homelessness to prove prong one.
We are not persuaded by either parent's claims. The trial court found F.C.'s drug use harmed the children not because it occurred in their presence, but because F.C. failed to remedy her substance abuse issues to enable herself to parent the children. The trial court found F.C.'s
negative behaviors while in drug treatment programs made these programs ineffective and led to her discharge. She exhibited belligerent attitudes and behaviors in the programs that have impacted the children's health and development while in her care . . . during the children's stay with her at the Mommy-and-Me programs and after the children were removed and placed in the Division custody.
We likewise reject F.C.'s argument the trial court failed to account for her untreated mental health issues. The record is replete with efforts by the Division to secure mental health treatment for F.C., including medication to address her needs. However, F.C. failed to follow through in the treatment made available by the Division.
W.S.'s track record in treatment was more troubling. Whereas F.C. enrolled in and was discharged from drug treatment programs, W.S. failed to attend his treatment or address his drug use altogether. This lack of engagement limited his ability to have unsupervised contact with the children. Although the Division provided W.S. with housing assistance, his homelessness was not the root cause of the harm to the children. Rather, it was W.S.'s failure to address his substance abuse as the foundation for his ability to provide a stable home for the children.
Because of both parents' failure to address their substance abuse and mental health issues the trial court concluded:
Both children have exhibited unstructured behaviors and developmental delays resulting from the unstable lives of both parents. Their continued inattention to the needs of the children has and will continue to impair the health and development of both children. Despite attempts by the Division to remedy the instability in the lives of the parents, they continue to place their own needs before those of the children. A parent's prolonged inattention to a child's needs is deleterious to the child's relationship with that parent.The record demonstrates substantial credible evidence Walter and Fiona's health and development were harmed by the relationship with F.C. and W.S.
B. Prong Two
"The second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. The focus is on parental unfitness. K.H.O., supra, 161 N.J. at 352; DMH, supra, 161 N.J. at 378-79. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). The second prong may be satisfied
by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, the withholding of parental attention and care, and the diversion of family resources in order to support a drug habit, with the resultant neglect and lack of nurture for the child."Prong two may also be satisfied if 'the child will suffer substantially from a lack of . . . a permanent placement and from the disruption of [the] bond with foster parents.'" F.M., supra, 211 N.J. at 451 (quoting K.H.O., supra, 161 N.J. at 363).
[K .H.O., supra, 161 N.J. at 353.]
F.C. argues the trial court erred in its analysis of prong two and concluding she was unwilling to eliminate the harm to the children. She asserts her bipolar disorder was not treated, and she was unable to find a psychiatrist who accepted her insurance, which precluded her from safely parenting the children.
W.S. argues the trial court erred in its analysis of the second prong because the Division failed to account for his disability and lack of housing. As a result he claims he was unable to provide a safe and stable home for the children.
The record does not support either parent's claims. The Division referred F.C. to eight mental health evaluations. While under psychiatric care at both Straight and Narrow and Integrity House, F.C. refused to take medication, chose to discontinue her medication regimens, and failed to follow-up with available mental health services. The Division provided F.C. with the contact information for Bridgeway Services to find a psychiatrist who accepted her insurance. However, Bridgeway's records indicate F.C. failed to contact them. F.C. was placed into the Integrity House program for treatment of cannabis abuse and bipolar disorder. This program afforded her access to a psychiatrist to obtain medication, but F.C. refused to comply.
Similarly, the Division made numerous attempts to engage W.S. in drug treatment, but he repeatedly failed to attend or was discharged due to non-compliance. W.S. also consistently tested positive on his drug screens. And as a result of incidents of domestic violence involving F.C., W.S. was incarcerated.
Although each parent blames the Division for their failure to find stability, a parent's "responsibility for creating [a] situation . . . cannot be ignored." In re Adoption of Child by P.S., 315 N.J. Super. 91, 118 (App. Div. 1998). The trial judge's decision recognized F.C. and W.S.'s exclusive role in creating their adverse situation. The judge stated:
Both parents failed to adhere to the restrictions set forth on a Safety Protection Plan implemented in order to prevent further harm to the children. . . . Continued drug use and resistance to change makes both of these parents unwilling to eliminate the harm that such instability has caused and will continue to be caused to the children.The record amply supports the trial court's conclusions that prong two has been met.
Also, both parents assert after entry of the judgment the resource parent requested removal of the children from her care. Thus, they claim a safe home cannot be guaranteed, thereby creating a state of "limbo" for the children. They argue a termination of parental rights is an "unnecessary and unwise" decision, and the focus should be on reunification. The Division indicates it has located a pre-adoptive home for the children. Regardless, these conditions do not invalidate the trial court's findings that both parents are unwilling to eliminate the harm to the children and provide them with a safe and stable home.
C. Prong Three
Under prong three, the trial court must consider whether "the [D]ivision made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home[.]" N.J.S.A. 30:4C-15.1(a)(3). The Division's efforts must be analyzed "with reference to the circumstances of the individual case," including the parent's degree of participation. DMH, supra, 161 N.J. at 390.
N.J.S.A. 30:4C-15.1(c) defines reasonable efforts as those reasonable "attempts by an agency authorized by the [D]ivision to assist the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure[.]" The statute lists examples of "reasonable attempts" at reunification, including but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(2) providing services that have been agreed upon, to the family, in order to further the goal of family reunification;
(3) informing the parent at appropriate intervals of the child's progress, development, and health; and
(4) facilitating appropriate visitation.
[Ibid.]
F.C. and W.S. both argue the trial court erred in its analysis of prong three of N.J.S.A. 30:4C-15.1(a)(3). For the first time on appeal, they claim the Division violated the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 to 12213, by failing to accommodate their disabilities through the services it offered.
Absent plain error leading to the possibility of an unjust result, we generally decline to consider arguments not raised at trial. Neider v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Notwithstanding, we reject defendants' claims because we have expressly held "the ADA does not provide a defense to a termination of parental rights proceeding [because] . . . to allow the provisions of the ADA to constitute a defense to a termination proceeding would improperly elevate the rights of the parent above those of the child." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 442 (App. Div. 2001). Furthermore, "[t]he Division's efforts in providing classes and parenting programs must by their very nature take into consideration the abilities and mental conditions of the parents[,]" but the determination of reasonableness does not turn on the success of those efforts. Ibid.
Here, the record amply demonstrates the Division's efforts to provide both parents with tailored services to reunify them with the children. Yet, throughout the five years of the Division's involvement F.C. and W.S. exhibited consistent non-compliance with substance abuse treatment and parenting programs tailored to their individual needs and preferences.
Despite W.S.'s continued drug use and failure to attend parenting classes and mental health evaluations, the Division persisted in referring him to CADC for evaluations and drug tests. Despite F.C.'s constant discharge from programs, the Division continued to refer her to CADC for evaluations and enroll her in new treatment programs to achieve reunification.
The Division offered both parents visitation. Although F.C. took advantage of the visitation, she was aggressive with the children and exhibited poor parenting behavior during visits. W.S. failed to attend most of the visitation offered by the Division, and when he did attend he was inattentive to the children.
The Division explored kinship legal guardianship as an alternative to termination of parental rights with the relative resource. However, K.M. declined it because of the disruptive effect of parental visitation on the children.
Every factor of N.J.S.A. 30:4C-15.1(c) demonstrating reasonable efforts was met. The record offers no support for the parents' claims the Division did not make reasonable efforts to provide services.
D. Prong Four
The fourth prong of the best interests of the child standard requires the Division to show that termination of "parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1(a)(4). Termination of parental rights poses a risk to children due to the severing of the relationship with their natural parents, but it is based "on the paramount need the children have for permanent and defined parent-child relationships." K.H.O., supra, 161 N.J. at 355 (quoting N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 266 (App. Div. 2011)).
Thus, "the fourth prong of the best interests standard [does not] require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609. "[T]he question to be addressed under [prong four] is whether, after considering and balancing the two relationships, the [children] will suffer a greater harm from the termination of ties with [their] natural parents than from permanent disruption of [their] relationship with [their] foster parents." I.S., supra, 202 N.J. at 181 (citations omitted). "'[T]o satisfy the fourth prong, the [Division] should offer testimony of a well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship with both the natural parents and the foster parents.'" F.M., supra, 211 N.J. at 453 (citations omitted).
F.C. alone challenges the trial court's finding under prong four of N.J.S.A. 30:4C-15.1(a). Specifically, she claims because neither Dr. Kanen nor Dr. Burr conducted psychological evaluations of the children, their evaluations are incomplete, and prong four has not been met. We disagree.
After conducting a psychological evaluation of F.C., Dr. Kanen concluded she had severe parenting and behavioral deficits, and the children's attachment to her was insecure. The trial court recited the expert's findings:
[Dr. Kanen] opined that [F.C.'s] capacity to cope with the demands of daily life and childcare is evenly impaired. He describes her as disconnected with paranoid ideation, obstructive behavior and chronic anger. He concluded that [F.C.] is not capable of providing her children with a permanent, safe and secure home now or in the foreseeable future.The trial court credited Dr. Kanen's testimony that the children have severely impaired attachments to F.C., and that they should have no contact with her because of her anger.
Dr. Burr also opined the quality of F.C.'s relationship with the children was not adequate to achieve permanency. The trial court summarized his testimony that F.C.'s "drug use negatively impacts on her overall functioning and on her parenting." The trial court also found credible Dr. Burr's testimony that "[F.C.] did not exhibit an understanding of the children's needs and has no understanding of how the children are doing in their treatment programs."
F.C.'s own expert, Dr. Brown, suggested she did not exhibit the mental competence to protect her children from harm. As the trial court noted, Dr. Brown "recommended psychiatric management and attendance at weekly individual psychological therapy for at least [four] months or [sixteen] sessions [for F.C.] [while] simultaneously submitting monthly negative urine samples." Dr. Brown also concluded the children were not securely bonded to F.C.
We are unconvinced psychological evaluations of the children were either necessary or dispositive of the findings regarding the status of F.C.'s mental health and ability to parent. The evidence in the record regarding the children's mental health demonstrates both Walter and Fiona suffered from mental health deficits, which would only be exacerbated by the parental relationship. Conversely, Drs. Kanen, Burr, and Brown all agreed the structured relationship with the resource parent was beneficial to the children. Thus, the termination of parental rights followed by adoption would 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