Opinion
DOCKET NO. A-4808-14T1 DOCKET NO. A-4809-14T1 DOCKET NO. A-4871-14T1
01-30-2017
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.F., F.C., and J.B., Defendants-Appellants, and S.R., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF S.R., F.R., D.C., and A.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant F.C. (Howard Danzig, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.B. (Marc D. Pereira, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Kathryn J.H. Boardman, Deputy Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.R., D.C., and A.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor F.R. (Todd Wilson, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Fuentes, Simonelli and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-49-14. Joseph E. Krakora, Public Defender, attorney for appellant J.F. (Victor E. Ramos, Assistant Deputy Public Defender, of counsel and on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant F.C. (Howard Danzig, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant J.B. (Marc D. Pereira, Designated Counsel, on the briefs). Christopher S. Porrino, Attorney General, attorney for respondent (Kathryn J.H. Boardman, Deputy Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors S.R., D.C., and A.B. (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor F.R. (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
In these consolidated appeals, defendant J.F. (Jen), the biological mother of F.R. (Fran), born in 2003; S.R. (Sara), born in 2004; D.C. (Debra), born in 2007; and A.B.(Andrew), born in 2013, appeals from the June 11, 2015 judgment of guardianship, which terminated her parental rights to the children. Defendant F.C. (Fred), Debra's biological father, and defendant J.B. (John), Andrew's biological father, also appeal. The trial court found that respondent Division of Child Protection and Permanency (Division) proved all four pongs of N.J.S.A. 30:4C-15.1(a) as to each defendant by clear and convincing evidence. We affirm as to all defendants.
Pursuant to Rule 1:38-3(d), we use initials and fictitious names to protect the confidentiality of the participants in these proceedings.
Defendant S.R. is the biological father of Fran and Sara. The judgment of guardianship terminated his parental rights to these children. S.R. does not appeal.
It is well-settled that a court should terminate parental rights when the Division proves by clear and convincing evidence that:
(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 [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.
[N.J.S.A. 30:4C-15.1(a).]
On appeal, Jen does not challenge the court's finding that the Division proved prongs one and two by clear and convincing evidence, but Fred and John raise this challenge. As to prong one, they each argue that they never threatened their children, and it was Jen who harmed the children. Fred also argues that he only left Debra home alone one time, and there was only some speculative concern about his ability to independently parent Debra. John argues that he was always appropriate during visitation, and the concern over the potential for harm to Andrew from John's continued marijuana use was speculative.
As to prong two, Fred and John each argue that the trial court erred in finding they were unable or unwilling to provide a safe and stable home for their children, and without a comparative bonding evaluation with a foster family, no harm from delay could be deemed to exist. Fred also argues that delay cannot be found to add to the harm because the Division's permanency plan of select home adoption for Debra was unrealistic.
The plan for all four children at the time of trial was select home adoption.
Each defendant contends that the court erred in finding the Division proved prong three by clear and convincing evidence. Jen argues that the Division failed to make reasonable efforts to provide her with services because it did not place her in certain inpatient treatment programs tailored to her needs. Fred argues that the Division failed to assist him to achieve housing and renew his federal assistance after he left New Jersey. John argues that the court improperly found that he had rejected services when, in reality, the Division "instilled self-defeat" by failing to assist him with his counseling schedule and offer him a more intensive level of services.
Each defendant argues that the court failed to properly consider relative placements as an alternative to termination of parental rights. Jen asserts that the Division failed to appropriately consult John's aunt, L.E.N. (Linda) about Kinship Legal Guardianship (KLG). Fred asserts that the court was required to consider alternative placements; however, he points to no specific placement that the court failed to consider. John asserts that the court improperly ruled out Linda as a placement option for Andrew.
We decline to address Jen's additional arguments that the Division failed to assess certain relatives and failed to send out rule-out letters to the relatives that the Division assessed. Jen did not raise these issues before the trial judge and they are not jurisdictional in nature nor do they substantially implicate the public interest. Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).
Each defendant contends that the court erred in finding the Division proved prong four by clear and convincing evidence. They each argue that the Division failed to prove that termination of parental rights would not do the children more harm than good because they are interested in maintaining some contact with their children and behaved appropriately with them during visitation. They also argue that the prospect of obtaining a permanent adoptive home for the children through the select home adoption process is uncertain.
Our Supreme Court has established the standard of review in parental termination cases as follows:
Our task as an appellate court is to determine whether the decision of the family court in terminating parental rights is supported by substantial and credible evidence on the record. 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 . . . . We will not overturn a family court's factfindings unless they are so wide of the mark that our intervention is necessary to correct an injustice. It is not our place to second-guess or substitute our judgment for that of the family court, provided that the record contains substantial and credible evidence to support the decision to terminate parental rights.
[N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012) (citations omitted).]However, the "traditional scope of review is expanded" where an appeal is focused on "'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom[.]'" N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). A trial judge's "'interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'" Ibid. (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)). Applying these standards, we discern no reason to disturb the court's ruling.
The four prongs of N.J.S.A. 30:4C-15.1(a) "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." F.M., supra, 211 N.J. at 448 (citations omitted).
The Division need not demonstrate actual harm in order to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). "Courts need not wait to act until a child is actually irreparably impaired by parental inattention or neglect." In re Guardianship of D.M.H., 161 N.J. 365, 383 (1999) (citation omitted). The test is whether the child's safety, health, or development will be endangered in the future and whether the parent is or will be able to eliminate the harm. A.G., supra, 344 N.J. Super. at 440. Prong one can be satisfied by establishing the serious psychological damage to the child caused by the parental relationship, as well as the potential for emotional or psychological harm resulting from the parent's actions or inactions. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992); N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986).
The first prong of the best interests test requires the Division to "show that the alleged harm threatens the child's health and will likely have continuing deleterious effects on the child." F.M., supra, 211 N.J. at 449 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999)). "To satisfy this prong, [the Division] does not have to wait until a child is actually irreparably impaired by parental inattention or neglect." Ibid. (quoting D.M.H., supra, 161 N.J. at 383).
A parent's failure to provide a "permanent, safe, and stable home" engenders significant harm to the child. D.M.H., supra, 161 N.J. at 383. Likewise, a parent's failure to provide "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. Compounding the harm is the parent's "persistent failure to perform any parenting functions and to provide . . . support for [the child.]" Id. at 380. Such inaction "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. at 380-81 (citation omitted).
"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. D.M.H., supra, 161 N.J. at 378-79; K.H.O., supra, 161 N.J. at 352. In considering this prong, the court should determine whether it is reasonably foreseeable that the parent can cease to inflict harm upon the child. A.W., supra, 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.As we have noted, "parents dabbling with addictive substances must accept the mandate to eliminate all substance abuse" and "[s]uch unabated behavior . . . causes continuing harm by depriving their children of necessary stability and permanency." N.J. Div. of Youth & Family Servs. v. T.S., 417 N.J. Super. 228, 245-46 (App. Div. 2010), certif. denied, 205 N.J. 519 (2011). "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.]
"The third prong [of the best interests test] 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." F.M., supra, 211 N.J. at 452 (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. 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.
[Ibid. (citations omitted).]
In determining whether the Division has made reasonable efforts at reunification, the court must consider "the parent's active participation in the reunification effort." D.M.H., supra, 161 N.J. at 390. The failure or lack of success of the Division's efforts does not mean it failed in the reunification process, particularly where the parent refused to cooperate. Id. at 393; K.H.O., supra, 161 N.J. at 364. "Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." F.M., supra, 211 N.J. at 452.
As part of its analysis, "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. The Division is only obligated to assess "each interested relative's ability to provide the care and support[.]" N.J.S.A. 30:4C-12.1(a). Even where a relative has been identified and is an appropriate placement, 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), certif. denied, 217 N.J. 587 (2014); N.J. Div. of Youth and Family Servs. v. M.F., 357 N.J. Super. 515, 528-29 (App. Div. 2003).
The fourth prong of the best interests tests seeks to determine whether "[t]ermination of parental rights will not do more harm than good." N.J.S.A. 30:4C-15.1a(4). The fourth prong serves as a "'fail-safe' inquiry guarding against an inappropriate or premature termination of parental rights." F.M., supra, 211 N.J. at 453. "The 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 the parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). The court must determine "whether . . . the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or] her foster parents." K.H.O., supra, 161 N.J. at 355.
Because harm to the child stemming from termination of parental rights is inevitable, "the fourth prong of the best interests standard cannot require a showing that no harm will befall the child as a result of the severing of biological ties." Ibid. Rather, the court's inquiry is one of comparative harm, for which the court must consider expert evaluations of the strength of the child's relationship to the biological parents and the foster parents. Ibid. Thus, "to 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 (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007)). "Under this prong, an important consideration is [a] child's need for permanency. Ultimately, a child has a right to live in a stable, nurturing environment and to have the psychological security that his most deeply formed attachments will not be shattered." Ibid. (citing M.M., supra, 189 N.J. at 281).
According to the record in this case, Jen, who is deaf and mute, has an extensive history of alcohol abuse dating back to age sixteen, as well as mental health issues, lack of stable housing, aggressive, violent, and erratic behavior when she consumes alcohol, domestic violence issues, and arrests for incidents relating to her intoxication. She became involved with the Division in 2003, when she was a teenager and pregnant with Fran. Her twelve-year involvement with the Division was marked by her failure to successfully address the problems that led to the placement of the children in foster care and by their numerous removals, failed reunifications, and her inconsistent and sporadic visitation with them. Jen had repeated cycles of short-term success with substance abuse treatment followed by relapse, and there was no evidence to indicate that she would change her behavior or maintain sobriety.
The Division received eleven referrals, six of which resulted in emergency removals of the children. --------
Undisputed expert evidence showed that Jen has been diagnosed with Alcohol Use Disorder (active); Major Depressive Disorder (recurrent; with psychosis during past episodes; currently in partial remission); and Dependent Personality Traits. Jen remained at very high risk for continued alcohol abuse and was not likely to benefit from further services or change her behavior given her limited insight into her alcohol abuse. She posed a risk to her children due to her continued alcohol abuse, aggressive and violent behavior, physical child abuse, unstable housing, and marginally effective parenting, and her prognosis was poor for overcoming these risks in the foreseeable future.
The Division provided a multitude of services to Jen aimed at reunifying her with her children, including: intensive in-home parenting classes; behavioral management training; inpatient and outpatient substance abuse treatment; parenting assessments and psychological evaluations; individual and family counseling; anger management training; domestic violence training; supervised and unsupervised visitation; sign language lessons for the children; installation of hearing-impaired devices in the home; assistance with obtaining housing; transportation; budgeting lessons; furniture; and money for utility bills and a security deposit. Jen provided no evidence that additional services, including substance abuse treatment tailored to her needs, would have enabled her to safely parent her children.
Jen never provided any viable or appropriate alternative placement options for the children, and no one ever expressed an interest or willingness to serve as a placement option for Fran. The record confirms that Jen did not identify any potential relatives or friends who could care for the children and that, as a result, the children lived in foster care for most of their lives.
The undisputed expert evidence also showed that Fran and Sara endured traumatic experiences while in Jen's care, witnessing her erratic behavior and domestic violence and also enduring multiple instances of physical abuse. It was extremely unlikely that Fran and Sara viewed Jen as a source of safety, reliability, or comfort. Instead, they saw her as someone to fear or at least be wary of. Debra was also exposed to the same traumatic experiences, but presumably had less vivid recall given her young age. Andrew did not live with Jen except during the first few weeks of his infancy, and there was nothing indicating that he recognized her as a centrally important attachment figure. All four children had fairly weak attachments to Jen, having spent the majority of their lives living apart from her and only having contact through visitation that was inconsistent or sporadic.
The record does not reveal when Jen and Fred, who is also deaf, began their relationship; however, their daughter, Debra, was born in 2007. Debra was initially placed with the couple, but was removed at age sixteen months because Fred left her home alone to pick up Jen, who was highly intoxicated at a local bar. Debra was reunited with her parents after being out of their care for thirteen and one-half months, when she was close to her third birthday. Although Fred knew of Jen's alcohol abuse, he left Debra alone with her when Jen was intoxicated, resulting in another removal.
The Division provided services to Fred, but he failed to complete them or actively participate in the reunification process. He simply voluntarily left New Jersey when Debra was approximately four years old, leaving the child in the care of an alcohol-abusing mother whose behavior was often violent and erratic. Fred never made any plans for Debra's care, had little contact with her after leaving New Jersey, and did not support her or perform any parenting function thereafter. The only contact he had with the Division after leaving was through the efforts of Division caseworkers. He never requested assistance from the Division in obtaining housing or social security benefits, never presented himself as a placement option for Debra, and never presented viable alternative placement options. He has a history of substance abuse, lack of stable housing and employment, and relied on others for shelter and financial support. His involvement with the Division was marked by his failure to plan for Debra and provide her with a safe and stable home. Notably, except to appear for a psychological and bonding evaluation, Fred did not appear for the guardianship trial and provided no reason for his absence.
Undisputed expert evidence showed that Fred was diagnosed with Cannabis Use Disorder (in self-reported sustained partial remission); Major Depressive Disorder (recurrent); Borderline Intellectual Functioning (Provisional); and Dependent Personality Traits. He was unable to provide a safe and stable home for Debra or effectively parent her in the foreseeable future, and placing her in his care would expose her to serious risks, including homelessness and neglect. He was unable to address his own needs, let alone the needs of a child. Although Debra showed a positive attachment to him during a bonding evaluation, their relationship was fairly weak due to his absence from her life.
Jen and John began their relationship sometime in 2012, and their son, Andrew, was born in 2013. Andrew was initially placed with the couple after his birth, but was removed less than one month later due to a domestic violence incident. Andrew was placed in the same foster home as Sara and Debra.
John has a history of substance abuse, arrests for using and selling drugs, and unemployment. He also has a history of domestic violence with Jen, which resulted in Andrew's removal. His involvement with the Division was marked by his continued marijuana use, failure to participate in substance abuse treatment and submit to urine screens, and failure to protect Andrew from exposure to domestic violence, Jen's intoxication and violent behavior, and the risk of additional harm. He failed to appear on the first day of trial on June 8, 2015, despite receiving notice of the trial date.
Undisputed expert evidence revealed that John has been diagnosed with Cannabis Use Disorder (ongoing). His continued drug use rendered him unable or unwilling to provide a safe and stable home for Andrew in the foreseeable future. John's unwillingness to adopt a fully drug-free lifestyle exposed Andrew to drug use, neglect, and illicit activities. The expert evidence also revealed that Andrew had a positive but fairly weak attachment to John, but John was not a centrally important attachment relationship for the child.
The Division provided services to John to help him address his substance abuse and domestic violence problems, but he denied having these problems and refused substance abuse treatment and domestic violence counseling. The Division evaluated Linda, who John identified in the summer of 2014, as an alternative placement option; however, a background check revealed issues concerning a handgun charge and drug charges. In addition, the trial judge found it was not in Andrew's best interests at the time to separate him from his sisters, with whom he had lived nearly his entire life, and to whom he was strongly attached. Linda then ignored the Division's repeated efforts to contact her in late 2014 and early 2015, and did not come forward until the eve of trial. KLG was not an option for Linda, as Andrew had not been in her care "for either the last [twelve] consecutive months or [fifteen] of the last [twenty-two] months." N.J.S.A. 3B:12A-2.
We recognize that illegal drug use by a parent, standing alone, is insufficient to establish harm under the first prong. K.H.O., supra, 161 N.J. at 349-350 (holding that "[d]rug use during pregnancy, in and of itself, does not constitute a harm to the child under N.J.S.A. 30:4C-15.1(a)(1)," but harm exists when the child is born addicted to drugs); accord N.J. Dep't of Children & Families v. A.L., 213 N.J. 1, 22-23 (2013) (mother's use of cocaine during pregnancy does not, alone, substantiate abuse or neglect); N.J. Div. of Youth & Family Servs. v. V.T., 423 N.J. Super. 320, 332 (App. Div. 2011) (holding that a father had not neglected his daughter by merely twice testing positive for drugs at two supervised visits because "not all instances of drug ingestion by a parent will serve to substantiate a finding of abuse or neglect"). However, John's marijuana use was but one of several factors which, in combination, posed a substantial risk of harm to Andrew. John had several arrests for either using or selling drugs, refused to admit to having a substance abuse problem and engage in treatment, and had no intention of stopping his marijuana use, even for the sake of his son. He also refused to engage in domestic violence counseling after a domestic violence incident with Jen led to Andrew's removal. Moreover, even assuming that Jen was the primary source of the harm to Andrew, John was well aware of the situation and did nothing to prevent it. John failed to protect Andrew from exposure to Jen's intoxication and from her violent, alcohol-fueled behavior. See F.M., supra, 211 N.J. at 449 (holding that "[a] parent has an obligation to protect a child from harms that can be inflicted by another parent[]").
Lastly, the undisputed expert evidence confirmed that adoption was the only option for all four children even though they had no identified adoptive parents at the time of trial. Undisputed expert evidence confirmed that the children need a permanent home as soon as possible, reunification with any of the defendants was not an option, and select home adoption for each child was the only alternative. The undisputed expert evidence also confirmed that terminating defendants' parental rights to their children would not cause the children more harm than good because the outcome would give the children the only opportunity to enjoy a permanent home in the foreseeable future.
The trial court reviewed the evidence presented, made factual findings as to each defendant for each prong of N.J.S.A. 30:4C-15.1(a), and thereafter concluded that the Division met by clear and convincing evidence all of the legal requirements for a judgment of guardianship as to each defendant. The court's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with F.M., K.H.O., D.M.H., and A.W., and is more than amply supported by the record. F.M., supra, 211 N.J. at 448-49.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION