Opinion
DOCKET NO. A-0788-13T3
08-26-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.P., Defendant-Appellant, and W.T. and T.W., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF S.D.M., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeffrey Widmayer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin McLaughlin, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy, Guadagno, and Sumners. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-155-13. Joseph E. Krakora, Public Defender, attorney for appellant (Robert W. Ratish, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeffrey Widmayer, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Caitlin McLaughlin, Designated Counsel, on the brief). PER CURIAM
Defendant J.P. (Janet) appeals from a judgment of the Family Part terminating her parental rights to her daughter, S.M. (Sue), born December 3, 2009, and granting guardianship of the child to plaintiff New Jersey Division of Child Protection and Permanency (Division). We affirm based upon our review of the record and applicable law.
We use initials and fictitious names for the minor child and her family to protect their privacy and for ease of reference.
I.
These are the relevant facts adduced from the record.
The Division's initial involvement with Janet and Sue occurred on November 1, 2011 when a Camden County Board of Social Services (welfare agency) staff member reported that Janet did not comply with a mental health program referral. The next day, Janet visited the welfare agency appearing "completely out of place," "hyperventilating," and "acting aggressively" in her demands for "her money and food stamps." Janet also did not seem to understand what she was told about the services that were available through the welfare agency. Later that day, a welfare agency investigator unsuccessfully tried to locate Janet at two addresses listed in her file.
On November 3, 2011 Janet called the investigator and advised where she was living. The investigator went to the house, observing deplorable conditions, including numerous bags of trash, foul odors, insects, no electricity or running water, an empty and filthy refrigerator, and a non-functioning trash-ridden bathroom. Janet told the investigator that she and Sue lived there with her friend and his aunt for two days, but planned to leave because she did not get along with the aunt. However, Janet said "she [didn't] have anywhere [else] to go." She also told the investigator that she was not receiving welfare benefits or assistance because she was sanctioned for her failure to comply with the requirements of mental health services. Furthermore, as it neared 11:00 a.m., the investigator asked Janet if Sue had eaten breakfast that day, Janet replied "no," and said the friend she lived with planned to get food from a local church.
After the investigator took them to get something to eat, she escorted Janet, Sue, and the friend to the welfare office in an attempt to secure them food stamps and emergency housing. At the welfare agency, it was discovered that Janet's welfare benefits were stopped because of her failure to comply with the agency's mental health program and drug addiction treatment requirements. Janet completed her intake and was provided a return date to lift her sanction, and to help pave the way for housing.
Later that day, attempts were made to find temporary housing with Janet's relatives for Janet and Sue, but were unsuccessful. Janet and Sue were then transported to the Division's office, where Sue was removed from Janet's custody against Janet's will and placed with the Division because Janet's living arrangement did not satisfy the "[Division's] standards in regards to safety."
On November 7, 2011, a Family Part judge ordered that Sue be removed from Janet's care due a threat to Sue's life, safety, or health. The order also provided that Janet was entitled to supervised visitation "[two] times per week for [two] hours."
Over the next few months, efforts were made to temporarily place Sue with a family member and provide Janet with support so that she could be reunified with Sue. The Division contacted five relatives to care for Sue, but they were ruled out as either not willing or unable to provide her a home. Thus, Sue remained with a resource parent. At this time, the Division learned Sue's medical records indicated that she had not received any shots or vaccinations since her birth. To prepare Janet for possible reunification with Sue, the Division referred Janet to counseling, mandatory substance abuse evaluation, and psychological evaluation.
On January 24, 2012, the Division contacted Janet to schedule a meeting to discuss her case and the goal of reunification. Janet responded by expressing her frustration and distrust with the Division for not finding her housing and her belief that the Division would not reunite her with Sue. Despite agreeing to meet the next day, Janet never showed up.
In February 2012, after not seeing Sue for four months following the Division's removal of Sue, Janet exercised her right to have weekly supervised visits. The visits involved both positive and negative interactions. Janet was very attentive to Sue, interacted appropriately with her and was receptive to the Division worker's suggestions. However, when Sue misbehaved, Janet would often give in to Sue's demands without disciplining her.
To determine the most appropriate services for Janet to regain custody of Sue, the Division referred Janet to Carissa Ferguson-Thomas, Psy.D. for a psychological examination. Dr. Ferguson-Thomas opined that "[Janet's] comprehension and communication skills were less than expected for [her] age and education[.]" Although cognitive testing was not performed, Janet's clinical interview indicated she "appear[ed] to function in the below average range of intellectual ability." Dr. Ferguson-Thomas was concerned that "[Janet's] protocol was significant for defensive responding indicating that she may be experiencing more stress than she reported . . . [as a means] to portray a positive image that may not fully reflect stresses . . . were she to be involved on a more consistent and intensive basis with her child."
Ultimately, Dr. Ferguson-Thomas diagnosed Janet with "Cognitive Disorder NOS, [r]ule out [p]sychotic [d]isorder," (Axis I) and recommended a "full neuropsychological evaluation that includes a full IQ test to determine where her difficulties lie," and a psychiatric evaluation to "further assess her thought disorder/process and determine if medication is necessary or would be helpful." She also recommended Janet "participate[] in individual therapy to further explore her thought processes and mental state . . . ." In addition, Dr. Ferguson-Thomas recommended that Sue remain in the Division's care and custody while Janet's visits with Sue remain supervised until the full scope of Janet's difficulties were determined and the proper interventions are in place. Dr. Ferguson-Thomas' recommendations resulted in Janet receiving three additional evaluations, psychiatric, neuropsychological and neurological.
Janet received a psychiatric evaluation from Audrey Henry, M.D. Dr. Henry determined Janet "seemed to be suffering from a processing disorder or possibly a thought disorder," and recommended she receive a neuropsychological evaluation to evaluate her IQ, cognitive ability, and any psychotic thought process.
In adherence with Dr. Henry's recommendation, a neuropsychological evaluation was performed by Sarah Woldoff, Ph.D. Two evaluation sessions were needed because during the first session, Janet "became very agitated when encountering difficult test items and eventually walked out of the testing session . . . ." At the second session, Janet apologized for walking out, explaining she was frustrated by the process. Dr. Woldoff concluded Janet "meets the diagnostic criteria for a provisional diagnosis of an Intellectual Disability (DSM-IV Mild Mental Retardation) based on her cognitive abilities." Accordingly, Dr. Woldoff recommended Janet: (1) register "with appropriate services such as the Department of Developmental Disabilities or the Office of Mental Health"; (2) participate in a vocational rehabilitation program; (3) receive a "comprehensive review of functional living skills," and (4) get a comprehensive neurological and psychiatric evaluation to rule out any underlying cause for her clinical presentation and behavior.
She was unable to make correct change for a purchase, address an envelope according to a utility bill, or pay a bill using a check.
This evaluation was already performed by Dr. Henry.
Subsequently, Dr. Harold Marks performed a neurological evaluation. The evaluation revealed "(moderate) Intellectual Disability associate[d] with poor impulse control," but did not reveal any cause for the intellectual disability. Dr. Marks recommended Janet receive additional testing. The record does not indicate if additional testing was offered to Janet.
In April 2012, Janet's drug problem became evident when she tested positive for cocaine. The accompanying recommendation was that Janet attend and complete an intensive outpatient program to address her mental health and substance abuse issues. In mid-July, she again tested positive for cocaine.
On August 9, the Division continued to attempt to resolve Janet's drug use and asked her to report to the Division's Office for a substance abuse evaluation. Janet was not told she was reporting for a substance abuse evaluation, and when she learned about the evaluation, she became agitated, stating "here y'all go again, I don't do drugs or drink." Janet's anger escalated, and she exclaimed she had to leave before "I punch someone." Eventually, Janet was escorted out the office.
Three weeks later, Janet's drug test was negative. The record reveals no further positive drug screening results as Janet refused to participate in subsequent substance abuse evaluations and services.
In late August 2012, Janet submitted an application to the Division of Developmental Disabilities (DDD) to determine her eligibility for services. Initially, there was confusion concerning Janet's insurance status, which is a prerequisite to receive DDD services. The Division assisted Janet with completing a Medicaid application and sent it to DDD. However, New Jersey Family Care denied Janet coverage because at the time she did not have care of any children under the age of nineteen. The Division suggested that Janet go to the welfare office to apply for medical coverage. She did not. Consequently, she failed to obtain medical coverage, and her DDD application was denied.
Another unsuccessful attempt by the Division to provide services to Janet involved vocational training recommended by Dr. Woldoff. The Division completed a referral for Janet with the Division of Vocational Rehabilitation. After Janet rescheduled one appointment, she failed to show up for the new appointment and was ultimately discharged from the program.
While the Division spent a significant amount of time to develop Janet's parental skills, it also sought to address Sue's needs. After Sue was placed under the Division's care it became apparent she had behavioral problems. A report from Sue's daycare indicated Sue had temper tantrums, cried excessively, blatantly ignored adults, and, at times, was aggressive towards others. However, an early intervention evaluation concluded that Sue did not qualify for services because she was meeting her developmental milestones, and a later child study team evaluation determined she was meeting her educational goals.
Sue's behavioral problems also affected Sue's placement. In August 2012, Sue's resource parent requested the Division remove Sue from her home because she was no longer able to deal with Sue's temper tantrums. Two months later, before a new placement was found, the resource parent's sentiment toward Sue changed, and she contemplated adopting Sue. However, in March 2013, this sentiment changed again, as the Division prepared to effectuate the adoption. The resource parent advised she was no longer interested in adopting Sue because she is a "hand full" and "constantly [gets] into trouble at daycare."
The Division investigated and subsequently ruled out two cousins as possible placements for Sue. In September 2012, another relative was investigated and ruled out as a possible placement. Also, T.W. (Tony), as mentioned below, the man named as Sue's putative father in the Division's Complaint for Guardianship, was considered and subsequently ruled out as a possible placement due to a conviction for third-degree aggravated assault with a deadly weapon.
Eventually, sometime between March and May 2013, Sue was placed in the custody of a new resource parent. At this placement, while Sue was doing "better" at her new daycare, she continued to exhibit behavioral issues, which included urinating on the living room floor because she did not want to leave her toys and go to the bathroom.
On March 1, 2013, the Division filed a Complaint for Guardianship pursuant to N.J.S.A. 30:4C-15 and -22 to terminate Janet's parental rights. The complaint identified two men, W.T. (Wayne) and T.W. (Tony), as Sue's potential father despite the fact that Sue's birth certificate did not identify her father. No paternity test was taken to establish paternity for either man. The Division was unable to locate Wayne for service of the complaint, and Tony, did not respond to the complaint or appear in court. Default judgment was entered against Wayne and Tony and neither has appealed. The FN case was dismissed.
On May 14, 2013, at the Division's request, Sue received a psychological evaluation by Dr. Ferguson-Thomas to help determine and provide her with the most appropriate services. During the evaluation, Sue's behavior see-sawed; some moments she appeared happy and cooperative, while other times she became upset, refused to answer questions, complete tasks, and threw toys across the room in protest. As a result, Dr. Ferguson-Thomas noted that while Sue appeared to function in the average range of intellectual ability, she also had anger management problems, and it is unclear whether her behavioral issues stem from her placement - which would indicate an adjustment disorder — or is the result of something more serious. Accordingly, Dr. Ferguson-Thomas recommended that Sue receive individual therapy.
The trial to determine whether Janet's parental rights should be terminated was held on September 12, 2013. The Division presented the testimony of Division caseworker Fonda Jackson and its expert, Dr. Frank J. Schwoeri, Ph.D.
Jackson detailed the Division's approximately two year history with Janet and Sue. Her testimony was supplemented with the admission into evidence of voluminous records concerning the agency's contact with Janet and aforementioned evaluations of Janet and Sue. She testified that although the Division did not have a family available to adopt Sue at the time of the trial, it is routine, and in accordance with the Select Home Adoption process, that after termination of parental rights it typically takes the Division thirty days to identify potential placement homes that meet the requisite standards and a child's special needs before moving forward with any adoption plan.
Dr. Schwoeri's testimony regarding the psychological and bonding evaluation he performed on Janet were consistent with the opinions rendered by Dr. Woldoff and Dr. Ferguson-Thomas. Dr. Schwoeri stated that Janet does not have the ability to parent a child based upon his diagnosis of Impulse Control Behavior (Axis I), Intellectual Disability (Axis II), severe Psychosocial stressors (Axis IV) due to unemployment, housing instability, lack of family support, social isolation, and significant impairment in multiple areas of life (Axis V). Dr. Schwoeri reasoned that Janet failed to exhibit adaptive functioning skills necessary to live independently as a result of the loss of her foster parent at the age of sixteen years old, coupled with her inadequate educational experience.
With respect to the bonding evaluation, Dr. Schwoeri noted that Sue "currently has an attachment to her mother which could be characterized either as one of two types of insecure attachment: either anxious avoidant attachment or . . . a[] disorganized attachment style."
Dr. Schwoeri concluded:
[Janet] is clearly not up to the task of appropriately managing her daughter's noncompliant and disruptive behavior and [Sue] is going to need treatment and highly
competent resource parents to support her development going forward. In my opinion, [Sue's] behavior problems reflect poor self-regulation and poor compliance developed during her first two years of life while in her mother's care.
[Due to Janet's] significant cognitive limitations with an intellectual disability and attendant problems with self-regulation and impulse control . . . it [is] highly unlikely that she could live independently without significant support and supervision; thus it is even less likely that she would be able to safely and effectively parent a child who has already [ ] developed special needs. [Janet] is unable to safely and effectively parent her child.
[Sue] has significant self-regulation problems and will require exceptionally capable, patient, and attuned parenting in order to enable her to develop appropriate self-regulatory capacities. It is recommended that the Division pursue an adoption case plan for [Sue].
Dr. Schwoeri did not conduct a foster parent evaluation because the resource family who Sue was placed with did not want to adopt her.
Moreover, when asked if it would be harmful to have Janet's parental rights terminated, Dr. Schwoeri replied:
It's always harmful to a child to have their parent — their parent's rights terminated. I think the question is always though what's the relative harm that would come. And I don't think that there would be significant enough harm to warrant the risk of placing [Sue] back with her . . . mother.
Janet did not testify or present any witnesses on her behalf.
Following Janet's decision not to present any witnesses, the court did hear the testimony of C.H. (Charlene), Janet's aunt, who filed a complaint for custody of Sue. Her testimony was relevant regarding the Division's unsuccessful effort to find a kinship placement pursuant to N.J.S.A. 3B:12A-6. Her application was denied and is not the subject of the within appeal.
On September 19, 2013, the Family Part Judge Linda Baxter delivered an oral opinion, terminating Janet's parental rights, concluding that the Division proved by clear and convincing evidence all four prongs of N.J.S.A. 30:4C-15.1(a). Judge Baxter found: Janet endangered Sue and was unable to remediate the circumstances that caused her to endanger Sue; the Division made reasonable efforts to correct Janet's deficiencies to allow for Janet's reunification with Sue; and the Division considered alternatives to termination of parental rights.
This appeal followed.
II.
On appeal, Janet claims the Family Part judge erred in terminating her parental rights because the Division failed to satisfy its burden of proof with regard to all four prongs of the best interests test set forth in N.J.S.A. 30:4C-15.1(a).
The scope of our review affords deference to the Family Part judge. First, we "defer to the trial court's factual findings so long as they are supported by adequate, substantial, and credible evidence in the record." N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 185, (2010). Second, we give deference to the judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing Cesare v. Cesare, 154 N.J. 394, 411-13 (1998)). Judges who hear the case and see the witnesses are "better positioned to evaluate the witness' credibility, qualifications, and weight to be accorded [] testimony." In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999). Third, there is special deference given to the Family Part's fact-finding based on its expertise in the field of domestic relations. Cesare, supra, 154 N.J. at 413.
Nevertheless, "[w]here the issue to be decided is an 'alleged error in the Family Part judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of our review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188-89 (App. Div. 1993)). The Family Part judge's legal conclusions and application of those conclusions to the facts are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
"[P]arents have a constitutionally-protected" right to enjoy a relationship with their children. I.S., supra, 202 N.J. at 166; see also N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). Although strict standards have consistently been imposed in the termination of parental rights, these rights "are not absolute." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). To balance these constitutional rights against potential harm to the child, when applying for guardianship, the Division must "institut[e] a termination proceeding when such action would be in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994).
In order for the Division to terminate parental rights and obtain guardianship of the child, N.J.S.A. 30:4C-15.1(a) provides the Division must satisfy the following four prong test:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;These four prongs are not independent of each other; rather, they "are interrelated and overlapping[,] . . . designed to identify and assess what may be necessary to promote and protect the best interests of the child." N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81, 88 (App. Div. 2006), certif. denied, 190 N.J. 257 (2007). Application of the test is "extremely fact sensitive," requiring "particularized evidence that addresses the specific circumstances of the individual case." Ibid. (citation and internal quotation marks omitted). The Division's burden of proof at trial is to establish its case by clear and convincing evidence. K.M., supra, 136 N.J. at 511.
(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.
[N.J.S.A. 30:4C-15.1(a).]
Under the first prong of the best interests standard, the Division must prove by clear and convincing evidence 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). "The harm shown . . . must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. "Although a particularly egregious single harm can trigger the standard, the focus is on the effect of harms arising from the parent-child relationship over time on the child's health and development." Id . at 348.
The harm to the child need not be inflicted by the parent personally but may arise from the parent's failure to provide a safe and stable home for the child. See M.M., supra, 189 N.J. at 282. There are situations where "[t]he potential return of a child to a parent may be so injurious that it would bar such an alternative." N.J. Div. of Youth & Family Servs. V. A.W., 103 N.J. 591, 605 (1986). Accordingly, where the "absence of physical abuse or neglect is not conclusive[,]" serious emotional and developmental injury should be regarded as injurious to the child. Ibid. (citation and internal quotation marks omitted). "[T]he psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood." Sees v. Baber, 74 N.J. 201, 222 (1977). Yet, even where the parent is morally blameless, it is not a sufficient basis to tip the scales in his or her favor to avoid termination of parental rights. 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). The parent's mental illness may be considered in determining the best interests of the child. See In re Guardianship of R., 155 N.J. Super. 186, 194 (1977).
The Family Part judge found there was clear and convincing evidence the first prong was satisfied because Jane "endangered her daughter in several ways." Judge Baxter reasoned:
First, at the time of removal in November of 2011, [Janet] was living with her daughter in a home that had no water, no electricity, no food, a foul odor, and flies. Unquestionably these very poor, substandard living conditions endangered - - the child's health and safety.
The second way . . . [is] at the time the child was removed from her mother's care at the age of a year and eleven months, the child had never been to the doctor. Denying a child routine immunizations and medical care creates a significant risk of harm.
And I note that the statute doesn't require actual harm. It just requires endangerment of the child's safety, and health, and well-being. And I find that by not taking the child to the doctor, the child was clearly endangered.
The third way . . . is by not showing any interests in the child for four months. [Janet] did not visit her child at all from November of 2011 until February of 2012. She did not resume . . . visiting her daughter until Ms. Jackson essentially begged her to do so.
So, by not visiting and not showing any interests, she denied her daughter the benefit of her mother's attention.
Fourth and more broadly, [Janet's] cognitive limitations, combined with her low level of day-to-day functioning have endangered and will, in the future, . . . continue to endanger this child's health, safety, and development.
[Sue] is . . . a very difficult child to handle. Five experience[d] foster parents have asked that she be removed in a period of less than two years. That is, from November of 2011 to now. This child requires attuned, sensitive, and informed parenting, which [Janet] is not equipped to provide. She is capable of living independently.
. . . .
[S]he is simply, I'm -- sad to say, not capable of raising a child. She lacks the basic knowledge. She becomes easily frustrated and angry and lacks the insight and judgment necessary to provide even a minimal level of safe parenting.
. . . .
So, therefore, the parental relationship has created harm to this child -- unintentionally, but nonetheless harm.
Here, the Family Part judge's findings are supported by substantial credible evidence in the record. While there was no physical abuse, as Dr. Schwoeri opined, Janet's severe low cognitive deficit and low adaptive functioning ability impacts her ability to safely care for Sue, and has contributed to the behavioral problems that Sue developed during the first two years of her life while in Janet's care. Janet also endangered Sue by having her live in squalid conditions without food, electricity, and water. She further endangered Sue when she failed to obtain medical care for Sue for nearly two years following Sue's birth. Also, Sue was deprived of Janet's parental attention for a significant amount of time when Janet failed to visit Sue during a four month period after the Division removed Sue from Janet's custody. The totality of these circumstances demonstrates Janet's inability to properly parent, and thus placed Sue in danger.
Janet's contention that "there is no indication that [she] abused" Sue, and it was her "cognitive limitations" that caused her to provide Sue inadequate housing and medical care, misconstrues the crux of the first prong of the best interests standard. It does not matter that her actions were not intended to inflict harm or endanger her daughter. See M.M., supra, 189 N.J. at 282 (the mother's cognitive limitations pose a risk to the son). It is the effect of the parent-child relationship over time in which Janet has exposed Sue that has endangered Sue's safety, health and development.
Moreover, the expert opinion by Dr. Schwoeri, which is consistent with the concerns expressed by Dr. Ferguson-Thomas, Dr. Woldoff, and Dr. Henry, substantiates that Janet's parenting skills cannot be remedied by the support of the Division or another social service agency. Consequently, Sue's health, safety and development would be jeopardized if she is returned to Janet's care.
Under the second prong of the best interests standard, the issue is whether "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." N.J.S.A. 30:4C-15.1(a)(2). A trial court is required to "determine whether it is reasonably foreseeable that the [parent] can cease to inflict harm upon" his or her child. A.W. , supra, 103 N.J. at 607. This prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's current or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care, . . . with the resultant neglect and lack of nurture for the child." K.H.O., supra, 161 N.J. at 353. There also must be consideration of any "evidence that separating the child from [their] resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2). Notably, the second prong focuses on parental unfitness and its proofs overlap with those supporting the first prong. D.M.H., supra, 161 N.J. at 379.
Judge Baxter found the second prong was satisfied by clear and convincing evidence because Janet was "both unable and unwilling to remediate the circumstances that endangered her daughter in the past." She placed significant weight on the "testimony of Dr. Schwoeri that [Janet's] cognitive deficits and functional limitations are permanent and that no amount of services would enable her to achieve a minimal level of safe parenting." In addition, the judge found "that her uncooperative attitude and lack of insight into why she needs those services make it highly unlikely that she would ever cooperate with them in any event."
Here, the record supports the Family Part judge's findings. The Division provided Janet constant support over the course of nearly two years, between the time Sue was removed from her custody until the termination hearing. Janet contends she made reasonable efforts to follow up on the Division's recommendations. While Janet did make some effort, she did not show the consistency needed to parent. Janet repeatedly failed to attend scheduled substance abuse and psychological evaluations. At the time of the hearing, Janet still did not have suitable housing to care for Sue. She failed to see the connection between taking advantage of the available services and being able to provide a safe and healthy environment for her daughter. Janet clearly had the opportunity to show that she could capably parent Sue. However, she failed to do so. Moreover, there was credible evidence to believe Janet's reunification with Sue will inflict harm upon Sue. It is apparent, as Dr. Schwoeri determined, that Janet's unchanging cognitive deficits remain an obstacle to eliminating the harm needed to provide Sue a safe and stable home.
The third prong requires two parts to be satisfied. Under the best interests standard, the Division must make "reasonable efforts to provide services to help the parent correct the circumstances" deemed necessary to remove and place the child in foster care. N.J.S.A. 30:4C-15.1(a)(3); accord K.H.O., supra, 161 N.J. at 354. "Reasonable efforts" may include parental consultation, plans for reunification, services to further the goal of reunification, notice to the family of the child's progress, and facilitating visitation. N.J.S.A. 30:4C-15.1(c). Those efforts depend upon the facts and circumstances of each case. D.M.H. , supra, 161 N.J. at 391. The services provided to meet the child's needs for permanency and the parent's right to reunification must be coordinated and must have a realistic potential to succeed. N.J. Div. of Youth & Family Servs. v. J.Y., 352 N.J. Super. 245, 267 (App. Div. 2002). see N.J.A.C. 10:133-1.3.
The third prong also requires the court to consider "alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). Where a relative caregiver agrees to raise a child until adulthood, the court may award Kinship Legal Guardianship (KLG) to the relative pursuant to N.J.S.A. 3B:12A-6. N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J. Super. 76, 86 (App. Div. 2003). However, this option is not appropriate where adoption is feasible and likely. Id. at 87-88; see also N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div.), certif. denied, 192 N.J. 293 (2007).
The Family Part judge concluded that both parts of the third prong were satisfied by clear and convincing evidence. She found that the Division made "numerous referrals for substance abuse evaluations and treatment, individual therapy." However, when [Janet] failed to appear, . . . the Division kept re-referring her over and over again[,]" and "it is the responsibility of the parent, not the Division, to get to the service provider's office [] to obtain services." As for the alternatives to the termination of parental rights, the judge found that at "least eight relatives or friends" were considered guardians for Sue, but "[n]one were suitable." She gave much consideration in denying the possible placement of Sue with her great aunt, Charlene, who filed a complaint to obtain custody.
The judge found Charlene was not a suitable guardian for four reasons. First, "although well-meaning," Charlene "underestimates the difficulty of raising" Sue, thinking that her behavior will improve by merely showing Sue "love." Second, Sue barely knows Charlene, who had only two visitation sessions with Sue, the last one admittedly, "[a] very long time ago." This has led Charlene to underestimate Sue's problems. Third, Charlene's seizure disorder makes it "too risky to place such a young child with her." Fourth, Charlene resides with her daughter and grandchild, in a two bedroom house that does not provide enough room for Sue. This living arrangement, a result of significant repairs needed to make Charlene's home habitable, is not reasonably expected to change because she doesn't have the money to make the repairs.
Here, the record confirms the Family Part judge's findings that the Division made reasonable efforts to correct Janet's deficiencies, reunify her with Sue, and considered alternatives to termination of parental rights. The Division offered numerous services to Janet to make her a fit parent, including psychological evaluations, substance abuse evaluations, substance abuse treatment, parenting classes, transportation services, visitation services, and foster placement. Unfortunately, Janet did not take full advantage of the resources that would improve her parental skills and put her in a position to regain custody of Sue.
Janet faults her cognitive limitations as the reason she was unable to take full advantage of the Division's assistance, and the Division's failure to vigorously address her low functioning level. Yet, even if one finds merit in the argument that the Division failed Janet, and we do not, there is no evidence that Janet would be positioned to properly parent Sue had the Division done everything she contends. The services were offered with the hope that she could develop the necessary parenting skills. Unfortunately, Janet's cognitive limitations along with her educational experience continued to pose a barrier in her attempt to properly parent Sue.
In an effort to avoid the termination of Janet's parental rights, the Division explored placement of Sue with (eight) relatives or friends of Janet. None of them were suitable alternatives. There is no support for Janet's contention that the Division's efforts amounted to "perfunctory review and hasty decisions to rule out those considered." The application by Charlene, to obtain custody of Sue was denied by the judge because of concerns over Charlene's lack of familiarity with Sue, comprehension of Sue's behavioral issues, inadequate living conditions, and health limitations. Thus, there was not a relative who was a viable candidate to take custody of Sue.
Finally, under the fourth prong, the court must address "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355. The overriding consideration under this prong is the child's need for permanency and stability. Id. at 357. "If a child can be returned to the parental home without endangering [her] health and safety, the parent's right to reunification takes precedence over the permanency plan." N.J. Div. of Youth & Family Servs. v. L.J.D., 428 N.J. Super. 451, 492 (App. Div. 2012). The mere existence of a bond with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263 (App. Div. 2005); see also In re K.L.F., 129 N.J. 32, 44-45 (1992).
In meeting this prong, the Division should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the natural parents and foster parents. In re Guardianship of J.C., 129 N.J. 1, 19 (1992). "[T]ermination of parental rights likely will not do more harm than good" where a child has been exposed to continuing harm by the parent, and in contrast, "has bonded with foster parents who have provided a nurturing and safe home." E.P., supra, 196 N.J. at 108. "[T]he Division must show 'that separating the child from his or her foster parents would cause serious and enduring emotional or psychological harm.'" Ibid. (quoting J.C., supra, 129 N.J. at 19).
The Family Part judge found the fourth prong was satisfied by clear and convincing evidence that there would be no harm in terminating Sue's ties with Janet as Sue had an "insecure and disorganized attachment to her mother[,] as exemplified by [Sue] literally pushing her mother away during the bonding evaluation." The judge was persuaded by Dr. Schwoeri's opinion "that the child would not suffer any appreciable harm from the termination of parental rights." Moreover, the judge noted that although no foster parent was available at the time of the termination hearing, Sue will have a greater opportunity to be adopted after the termination of parental rights, which allows the Division to conduct a nationwide search.
Here, the Family Part judge's findings that terminating Janet's parental rights will do more good than harm are supported by substantial credible evidence in the record. Janet seeks to refute these findings by focusing on her visitations, where she interacted appropriately with her daughter and properly responded to her temper tantrums, and pointing out that a foster parent has not been located. While it is true that Janet has had some positive interactions with Sue and no foster parent was located, this does not overcome the uncontroverted testimony of Dr. Schwoeri that Sue would not suffer harm if Janet's parental rights are terminated. Janet cannot control Sue's non-compliant and disruptive behavior. She does not verbally engage Sue, except to redirect her - which too often is not successful. Sue has not developed a bond with Janet that would cause Sue emotional harm by terminating Janet's parental rights. With Janet's parental rights terminated, there is the realistic prospect that Sue will thrive after placement in a safe and healthy environment. There is no such prospect if Sue remains in Janet's custody.
Our careful review of the record causes us to conclude that the Division established the elements necessary to support the termination of Janet's parental rights by clear and convincing evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION