Opinion
DOCKET NO. A-0477-15T2
06-13-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. G.T., Defendant-Appellant, and S.B., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF B.K.B. and R.C.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cynthia Phillips, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, Docket No. FG-01-13-15. Joseph E. Krakora, Public Defender, attorney for appellant (Marc D. Pereira, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Cynthia Phillips, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Cory H. Cassar, Designated Counsel, on the brief). PER CURIAM
Defendant G.T. appeals from the Family Part's September 14, 2015 judgment terminating her parental rights to two children, Beth and Ryan, who were born in 2009 and 2012, respectively. Defendant contends that the New Jersey Division of Child Protection and Permanency (Division) failed to prove each of the four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. The Law Guardian supports the termination of parental rights. After reviewing the evidence presented to the trial court, and in light of prevailing legal standards and the arguments presented, we affirm.
Fictional names are used to protect the privacy of the children and for ease of reference.
The judgment also terminated the parental rights of the children's biological father, S.B., who is not involved in this appeal.
We will not recite in detail the history of the Division's involvement with defendant. Instead, we incorporate by reference the factual findings and adopt the legal conclusions contained in Judge Damon G. Tyner's twenty-eight page written decision. We add the following comments.
Judge Tyner conducted a two-day guardianship trial on August 31 and September 1, 2015. The Division presented the testimony of expert psychologist Alan J. Lee, Psy.D., and adoption caseworker Jessica Wittek. Defendant and S.B. testified but presented no expert testimony.
Judge Tyner carefully reviewed the evidence presented, and concluded that the Division proved by clear and convincing evidence the four prongs of the best interests test, codified in N.J.S.A. 30:4C-15.1(a) to -15.1(a)(4) as follows:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;See also N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 604-11 (1986).
(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 . . .;
(3) The [D]ivision has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.
Pertinent to this appeal, Judge Tyner found Dr. Lee's testimony credible and reliable. Dr. Lee diagnosed defendant with opioid dependence, a history of polysubstance abuse, major depressive disorder, and personality disorder NOS with borderline antisocial traits. He indicated that defendant's score of thirty-eight on the Global Assessment of Functioning (GAF) test reflected ongoing substance abuse and other long-term issues that remained unresolved and "represent[ed] a poor prognosis for change." In addition to defendant's inability to remain drug-free despite having completed three intensive outpatient treatment programs, Dr. Lee opined that defendant "cannot manage common daily obstacles in life." The judge concluded that Dr. Lee "testified credibly that [defendant] could not provide the permanency and stability that the minor children required."
Judge Tyner also found Wittek's testimony credible and that she "went above and beyond" in appropriately informing defendant of the required services, visitation and court dates, and in providing defendant with bus passes to attend visits and services. Additionally, the judge found:
[] Wittek credibly testified that [] [defendant] would not comply with the special needs of Beth and Ryan during her visits with the children. In regards to Ryan, [] Wittek testified that [defendant] would not use the proper diapers required for him and would not keep Ryan's helmet on. As for Beth, [] Wittek testified that Beth has had dental issues and [defendant] was asked to not give the children sugary
snacks, however [defendant] did not follow these directions. The [c]ourt also found [] Wittek's testimony credible when she was discussing Beth's behavioral issues. [] Wittek testified that Beth started having accidents in her pants once [defendant] and [S.B.] stopped routinely showing up for their visits.
Moreover, [] Wittek credibly testified that since she started working on the case [defendant] and [S.B.] have not made an attempt to regain custody and believes that it would be in the best interest of Beth and Ryan to be in the custody of the resource mother.
Judge Tyner found defendant's testimony incredible and rejected it in its entirety. Specifically, the judge rejected defendant's claims that: (1) she was willing to participate in services but the Division would not help her; (2) the Division workers never discussed services with her; (3) although she asked the Division for bus passes, she was never told she could use them for transportation to services; and (4) she lacked notice about the services. Also,
the court found [defendant's] testimony regarding Ryan's health issues troubling. [Defendant] refuses to acknowledge that Ryan has any other disorder besides [a]utism and the Division's testimony revealed that Ryan would need a caretaker who is capable and willing to comply [with] his special needs. [Defendant's] testimony was argumentative and lacked insight. Additionally, she never meaningfully engaged in services, so she has failed to demonstrate that she is capable of providing a minimum level of adequate care to the minor children.
The first statutory prong involves an inquiry into whether there has been an "endanger[ing] of the child's health and development resulting from the parental relationship," and whether there will be future harm to the child's safety, health, or development if the parental relationship is not terminated. In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The harm "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." Id. at 352. This standard may be triggered by a single or isolated harm, or by an accumulation of harms over time. Id. at 348. The absence of physical abuse alone is not conclusive because the court also must consider the potential for serious psychological harm to the child. In re Guardianship of R., 155 N.J. Super. 186, 194 (App. Div. 1977).
Courts, however, need not wait to act until a child is actually irreparably impaired by parental inattention or neglect. The inability of a parent to provide any nurturing or care for his or her child for a prolonged period constitutes a harm under this standard. K.H.O., supra, 161 N.J. at 356. The fact that a parent may be morally blameless is not a sufficient reason to tip the scales in his or her favor. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 438 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Judge Tyner found that the Division established this first prong of the best interests test by clear and convincing evidence. The judge reasoned:
During [defendant's] pregnancies with each child, she admitted to using some form of illegal substance. Based upon the exhibits and the testimony of Dr. Lee and the Division worker it is apparent to the [c]ourt that [defendant] is unwilling to resolve the substance abuse problem that plagues her life. [Defendant] has not been sober for a steady period of time and this alone places the children in harm's way. Moreover, [defendant] lacks significant insight into the severity of her substance abuse problem, and only believes she has a mental health problem. [Defendant] cites her mental health issues as the only reason she uses drugs. Due to [defendant's] inability to deal with her substance abuse problems and mental health problems, Beth and Ryan's safety, health, and development will continue to be [endangered] by the parental relationship.
Additionally, the minor children have been placed together with the same resource mother for over a year. The resource mother has provided the children with a safe and stable home. During the bonding evaluation with Dr. Lee[,] he observed that both the children appeared more relaxed and expressive around the resource mother than they did with [defendant]. This led Dr. Lee to the same conclusion as it does the [c]ourt, that the bond between the children and the resource mother is more secure than with [defendant].
Closely related to the first prong, the second statutory prong requires the Division to show a parent is unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). The focus of this inquiry is to determine "whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." K.H.O., supra, 161 N.J. at 348. Alternatively, the State may show "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." Id. at 348-49. Thus, the second prong "relates to parental unfitness," and "may be established in several ways," including
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.
[Id. at 352-53.]
As to this second prong, Judge Tyner found that defendant "hasn't come to terms with her drug problems thus far," and noted that she even avoided a drug test on the last day of trial. The judge also found that:
[Defendant] and [S.B.]'s visitation with the minor children has been sporadic at best. The parents have treated the children unfairly during this process by consistently
missing visits. The [c]ourt believes that any further delay in the termination process will only add to the severe harm that has already been inflicted on the children by [defendant] and [S.B.]. Dr. Lee also noted in his testimony that [defendant] would not be able to fix the harm caused by the termination of the relationship between the resource mother and the children.Finally, the judge found that defendant lacked the ability to provide a safe and stable home for the children.
"The third prong requires an evaluation of whether [the Division] 'made reasonable efforts to provide services to help the parent' remedy the circumstances that led to removal of the children from the home." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012) (quoting N.J.S.A. 30:4C-15.1(a)(3)). The emphasis on the third prong
is on the steps taken by [the Division] toward the goal of reunification. "The diligence of [the Division's] efforts on behalf of a parent is not measured by" whether those efforts were successful. [In re Guardianship of D.M.H., 161 N.J. 365, 393 (1999).] "'Reasonable efforts' may include consultation with the parent, developing a plan for reunification, providing services essential to the realization of the reunification plan, informing the family of the child's progress, and facilitating visitation." [N .J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007).] Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship.As part of the inquiry, "the court must consider the alternatives to termination of parental rights and whether the Division acted reasonably." A.G., supra, 344 N.J. Super. at 434-35. "The reasonableness of the Division's efforts depends on the facts in each case." Id. at 435.
[Ibid. (additional citation omitted).]
Judge Tyner determined that the third prong was clearly established. He explained:
[T]he Division, especially [] Wittek, has spent countless hours attempting to provide services and visitation plans for [defendant]. The parents have been offered almost every service available, but have failed to fully complete one service. [Defendant] has made attempts to begin using the services offered by the Division, but finds some way to end her participation during the early stages of the programs. [Defendant] has consistently made excuses for her failure to complete the services provided, blaming everyone for her failure except herself.With respect to the second element of the third prong, the judge found:
The Division has explored such alternative arrangements as placing the children with another relative. During [] Wittek's testimony she explained that [defendant's] mother was considered as a placement option for the children. When the Division contacted the children's grandmother she informed the Division that she was not interested. [] Wittek noted that the grandmother only became interested in possibly adopting the children after [they] had been with the resource mother for some
time. The Division eventually ruled out the grandmother and sent her notice stating such. Additionally, there was another couple in relation to [defendant and S.B.] that the Division looked into, however that couple was ruled out as well.
The fourth statutory prong requires the court to determine whether termination of parental rights will not do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "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 question is "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).
The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Weighing the potential harm from terminating parental rights against separating the child from foster parents requires expert testimony on the strength of each relationship. Ibid. When a termination action is based on parental unfitness rather than bonding, the proper inquiry under the fourth prong focuses on the child's need for permanency and the parent's inability to care for him or her in the foreseeable future. N.J. Div. of Youth & Family Servs. v. B.G.S., 291 N.J. Super. 582, 593 (App. Div. 1996).
Here, Judge Tyner concluded that termination will not do more harm than good, citing, among other things, the fact that defendant had not visited with the children in the last four months. The judge again cited the uncontroverted expert opinion of Dr. Lee that, based on his bonding evaluation, "the resource mother would be able to rectify any issues the children may have if [defendant's] parental rights were terminated[,] [w]hereas . . . [defendant] would not be able to ameliorate the harm that would face the children if their relationship with the resource mother was terminated." The judge elaborated:
Beth and Ryan have been living with the resource mother for over a year. Both children have been doing very well in the resource home. They have established a strong bond with the resource mother according to Dr. Lee's credible testimony. The resource mother has provided both children with the special and extended care they need, especially as it pertains to Ryan. Given these facts, the [c]ourt finds that Beth and Ryan would suffer more harm if they were to be removed from their resource home.
Our scope of review on appeals from orders terminating parental rights is limited. In such cases, the trial court's findings generally should be upheld so long as 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). A decision in this context should only be reversed or altered on appeal if the trial court's findings were "so wholly unsupportable as to result in a denial of justice." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004) (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We must give substantial deference to the trial judge's opportunity to have observed the witnesses first hand and to evaluate their credibility. R.G., supra, 217 N.J. at 552. 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." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993); Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)).
Our review of this record convinces us that no mistake was made, and that Judge Tyner's decision is supported by clear and convincing evidence and carefully tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a). Defendant's contentions that she posed no past or future danger to the children; that the Division focused on providing her with the wrong services; that her mother was ruled out as a placement option based on misinformation; and that the judge relied entirely on speculation rather than material findings of Dr. Lee, are all belied by the judge's thoughtful findings and lack sufficient merit to warrant discussion here. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Tyner in his comprehensive and well-reasoned written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION