Opinion
DOCKET NO. A-5621-12T3 A-5622-12T3
06-30-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. J.S. and L.A., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF K.S., L.A., S.A., AND J.A., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant J.S. (Angelo G. Garubo, Designated Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for appellant L.A. (Theodore J. Baker, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-150-12.
Joseph E. Krakora, Public Defender, attorney for appellant J.S. (Angelo G. Garubo, Designated Counsel, on the briefs).
Joseph E. Krakora, Public Defender, attorney for appellant L.A. (Theodore J. Baker, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Melissa R. Vance, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendants J.C. (Joan) and L.A. (Len) appeal from a July 1, 2013 judgment, entered following a seven-day trial, which terminated their parental rights and awarded guardianship of their four children to the Division of Child Protection and Permanency (Division). On appeal, Joan argues the trial court misapplied the applicable legal standards and erred in assessing the Division's evidence, which she maintains was insufficient to satisfy each of the four prongs of the statutory test, N.J.S.A. 30:4C-15.1(a), to prove guardianship was in the best interests of their children. Meanwhile, Len limits his claim of trial error to his argument the trial court failed to consider alternatives to termination of defendants' parental rights. Following our review, we reject defendants' arguments as unfounded and affirm substantially for the reasons set forth in the twenty-five page written opinion issued by Judge Mark J. Nelson.
For ease of reference, we refer to defendants, the children, and their relatives by pseudonyms.
I.
We discern the following facts from the trial record. Defendants Joan and Len are the biological parents of four children born of their long-term relationship: K.S. (Kim) in December 1999, L.A. (Lisa) in June 2003, S.A. (Sally) in April 2005, and J.A. (Julie) in February 2007. The Division first became involved with the family in April 2006 on a referral that Joan had been admitted to the emergency room at a local hospital with a self-inflicted wound to her wrist, which required eight stitches. She denied having tried to commit suicide but acknowledged she had been depressed for months and Len had threatened to leave her the night before. She explained she often felt overwhelmed with her responsibilities. The children briefly stayed with Len's aunt M.H. (Maggie), but then returned to Joan after her release from the hospital. The Division did not substantiate Joan for neglect, but kept the case open for services until early the following year.
In February 2008, Maggie reported to the Division that Joan and the children had been staying with her, but indicated they might have to leave as Maggie feared losing her housing benefits; in that event, Joan and the children had nowhere to go. Len, moreover, had been at her home the day before arguing with Joan and often became agitated when Joan refused him greater visitation with the children. Joan admitted to the Division she and Len no longer got along and had some history of domestic violence, but denied that either had ever hurt the children. Joan agreed to let the children stay with Maggie while she secured more stable housing; the Division closed its case three months later.
Another, more serious, referral followed in January 2009 when the Hudson County Prosecutor's Office alerted the Division of a report that Len, who had been registered as a sex offender for sexual assault convictions about five years prior, "touched" nine-year-old Kim with his penis. Joan had secured a restraining order against him that past October, albeit over concerns about domestic violence, but let him into the home to see the children every weekend. According to the referral, Joan was "down-playing" the event and had declined to report it when Kim first told her, but Maggie urged her to contact the police. Len was soon arrested for violation of the restraining order and has remained incarcerated ever since. He was ultimately convicted of aggravated sexual assault and endangering the welfare of a child and sentenced in July 2011 to imprisonment for fifty years with no possibility of parole.
In the course of the investigation, Kim specifically disclosed that her father had placed his penis between her legs, "in her butt," and in her mouth, and that he had begun the abuse when she was only seven years old. She once told Joan that he had "'jumped on her butt naked,'" but Joan did nothing. Kim further said she and her sisters had witnessed defendants having sex, a circumstance that five-year-old Lisa similarly reported; Kim also reported seeing her mother having sex with another man.
Joan denied any knowledge of Kim's abuse, but Len admitted that he had, on one occasion, "put his penis on [Kim's] thigh" while naked. Maggie confessed that she knew Len was registered as a sex offender, but let him into the home to see the children and even allowed him to sleep there on weekends, because she "felt sorry for [Joan] and wanted her to have some sort of life." The Division removed the children from their parents' care on an emergent basis and placed them into foster care out of concerns for Len's admitted abuse and Joan's failure to protect the children despite knowledge of that abuse.
In the following months, the Division referred Joan to a parenting skills program at Bayonne Community Mental Health Center (BCMHC), which she completed, and scheduled her and the children for an evaluation with the Center for Evaluation and Counseling (CEC) in March 2009. In addition to discussing the sexual abuse, Kim disclosed to the evaluator that when her father visited the home, defendants would engage in "ugly fights," forcing her to take her sisters to the basement or backyard to hide. She would give Julie, then an infant, a pacifier to prevent her from crying so Len would not find them because he would sometimes "beat us up after the fight[] [was] done." After the fights, she would often find broken glass and ripped books strewn about the floor, and beds turned upside down.
The evaluator concluded that Kim's disclosures were clinically valid, but that Joan seemed "unconcerned" about her daughter's allegations of sexual abuse and failed to take appropriate protective action when made aware of them. Moreover, the children had generally been "exposed to a high-risk, inappropriate, and sexualized environment" while in her care. Joan was also "emotionally unstable," presented with borderline personality features, and would require individual therapy, parenting skills classes, and domestic violence services.
Consistent with these recommendations, the Division referred Joan for individual therapy at BCMHC and domestic violence counseling at Women Rising, facilitated supervised visitation with the children, and scheduled her for a further CEC evaluation in October 2009. Meanwhile, the Division referred Sally and Lisa for an evaluation at BCMHC, and Kim and Lisa for therapy at Project SAFE, as well as counseling at the Family Resource Center (FRC).
The Division remained concerned about the family's prior housing situation, as well, particularly after learning of allegations that Maggie's husband W.H. (William) had sexually molested one of Maggie's daughters ten years earlier. In any event, the Division would not permit Maggie to serve as a placement while William remained in her home. Joan also suggested her sister and brother as resources and provided the Division with their contact information, but both indicated that they could not care for the children.
Nonetheless, the Division's plan remained one for reunification, and the children were returned to Joan's care in March 2010 with the caveat that, if Maggie were to babysit the children, she could do so only at Joan's home, not her own. The Division then arranged for daycare services, provided Joan with financial assistance for clothing for the children and at least one month's rent, and continued the family's counseling at the FRC and Kim's individual therapy at Project SAFE. Four months later, in July 2010, the Division received notice from the FRC that Joan had been failing to respond to the center's requests for further appointments. The FRC terminated Joan and the children for noncompliance the following month.
Concerns also arose during the summer of 2010 that the family might be in danger of losing its housing. In September, however, Joan represented to the Division that she had successfully resolved the matter with her landlord; she further assured the Division in December her rental assistance was to be reinstated and that the family was no longer in danger of eviction. Yet, in January 2011, Kim disclosed to an evaluator at Audrey Hepburn Children's House that she and her sisters were staying at Maggie's house, where her Uncle William, referred to as "Cookie," also lived.
The Division received a referral from the evaluator the following day regarding Kim's disclosure, and soon confirmed with Lisa and Sally that William did indeed live in the home. Kim reported, as well, that Joan had been communicating with Len and even went to the family's old residence to retrieve letters he had mailed there. Given its continued concerns about William, the Division offered Joan an around-the-clock homemaker service or accommodations at a motel pending a search for a more appropriate, stable housing arrangement, but Joan refused both alternatives. Consequently, the Division again removed the children from her care on an emergent basis.
Soon thereafter, Len confirmed to the Division that Joan had indeed been corresponding with him and provided copies of her letters. In them, she wrote that she loved him and had forgiven him, and that he need not continue apologizing. A letter from October 2010 expressed her failed attempts to get "over" him and her recent realization during domestic violence counseling that so many other women participating in the sessions had been "hurt much more," and that she had been fortunate to have had a "guy that did love" her. She would see him soon and give him a "smile" at the upcoming hearing. She provided her cell phone number in another letter, which she closed, "I love you always," from "[Joan] and your girls."
Following the removal, the Division resumed supervised visitation, and referred Joan and the three older children for CEC evaluations. Joan acknowledged during her evaluation that she had failed to notify the Division when she moved back to Maggie's house, but denied that she knew of any of the allegations against William; in any event, she did not believe them and could not understand the Division's concern. She insisted the children had never exhibited any of their current behavioral or educational problems when they were in her care.
The evaluator concluded Joan had regressed in her prior "therapeutic progress regarding her child protective judgment," had become "emotionally reattached" to Len, and exhibited a troubling readiness to reject concerns about William given the family's history with sexual abuse. Generally, she showed evidence of emotional instability, depression, and borderline personality traits. The Division offered her continued counseling through BCMHC, and made counseling and therapy available to Kim, Lisa, and Sally, as well.
In February 2012, the Division assisted Joan with an application for housing benefits and provided her a mentor to help her find a suitable residence. Meanwhile, Joan and Lisa were referred for further psychological evaluation and the children were referred for sibling counseling and bonding sessions. However, Sally's counselor soon told the Division reunification would be "detrimental" to her safety and stability. Later that month, the court accepted the Division's revised permanency plan, terminating defendants' parental rights followed by select home adoption for all four girls.
Joan ceased participating in the program at BCMHC entirely by March 2012 and, at that point, had not seen her psychiatric nurse practitioner for six months. During trial, the Division learned from Len that he had received a photograph in the mail, apparently from Joan, of Joan with her new paramour, the three younger children, and Joan's newborn child with a note to the effect of "ha-ha, this is their new father now". The letter was unsigned, but Len recognized Joan's handwriting, and a Division caseworker recognized the photograph as one that had been taken during one of Joan's supervised visits with the children. The court found from that evidence that Joan had sent the correspondence, and Joan does not contest that finding on appeal. Indeed, she had sent the picture, moreover, despite the court's earlier denial of Len's motion requesting photographs of the children.
The Division represents that this child is now in the custody of his father, who does not reside with Joan. In any event, the child was not the subject of this guardianship litigation.
At trial, the Division presented the testimony of four expert witnesses, two psychologists, Mark Seglin, Ph.D. and Gerard Figurelli, Ph.D., and two psychiatrists, Larry Dumont, M.D. and Alvaro Gutierrez, M.D. Andrew Brown, Ph.D., a neuropsychologist, testified on behalf of Joan.
Dr. Seglin testified first and provided his clinical impressions from more than twenty sibling bonding sessions he conducted with the children and Kim since December 2011. He observed that Kim presented as depressed and exhibited symptoms of post-traumatic stress disorder (PTSD) consequent to the sexual assault, including sadness, self-harm, withdrawal, diminished peer relations, and adoption of age-inappropriate roles. She had become a "parentified child" and often behaved maternally to her sisters during later sessions.
Dr. Seglin noted that Lisa, the most difficult of the children to engage, seemed to be having the greatest trouble adjusting to placement. She frequently acted out physically and exhibited considerable attention-seeking behavior. Her relationship with Kim, in particular, was tense. Sally, on the other hand, was conversational, presented as a confident child, rarely acted out, expressed herself well, and exhibited age-appropriate behavior. She had gotten into some trouble at school for asserting physical dominance over her classmates but, in all, was probably the "least damaged" of the siblings. He noted Julie was "always somewhat in [Sally]'s shadow" and not especially verbal, but knew her the least well and stated that it was difficult to determine whether or not her behavior was typical for a child of her age.
Dr. Seglin concluded the children felt betrayed by Len, who was supposed to protect them as their parent, but had sexually abused Kim. Kim felt betrayed by Joan, as well, for having another child with a new paramour. Dr. Seglin acknowledged the children expressed a desire to return to their mother, but testified that they still had many "suppressed negative feelings," yet to be addressed, and that none of them had yet felt "empowered to make a thoughtful, reflective, comprehensive statement" as to their wishes. He did not believe that what Kim said "connect[ed] with what she fe[lt]" He concluded that it would be in the children's best interests to remain together, but only if Lisa's condition could be stabilized and if a safe, nurturing home could be found to accommodate them.
The Division next presented Dr. Gutierrez, who had conducted a psychiatric evaluation of Joan, which entailed both a review of her history and clinical interview. He observed at the outset that her history disclosed a "pattern of unstable, emotional behavior." He noted specifically that she had admitted to self-inflicted injury, permitted Len to visit the children despite a restraining order, and, according to at least one of the children, had sex with him in front of them. Moreover, she later moved into Maggie's home despite knowing of the sexual abuse allegations against William, and continued to send romantic letters to Len.
Dr. Gutierrez concluded from Joan's clinical interview that she frequently resorted to projection and denial, failing to acknowledge she had any problem and blaming the Division for her circumstances. He diagnosed her with a personality disorder with borderline features, described by an unstable pattern of behavior and emotion, instability in interpersonal relations, impulsivity, and self-injurious behavior. Such personality disorder was a "pervasive condition" with minimal likelihood for change through therapy.
For Joan, in particular, this condition influenced her history with domestic violence and persistent inability to protect the children, including her continued contact with Len and endangerment of the children anew by returning to Maggie and William's house. Dr. Gutierrez noted the trouble was not whether the allegations against William had been true, but that Joan failed to adequately protect the children by responding appropriately to those allegations, particularly as the mother of a child who had recently been subject to sexual abuse. Dr. Gutierrez was troubled, as well, by Joan's "chronic and repetitive" periods of homelessness and her pattern of impulsive behavior, which he believed was exemplified by her recent pregnancy. He concluded she was not capable of offering the children a safe, stable home, and that, given her history and the nature of her condition, her prognosis for improvement was poor.
The Division then presented Dr. Figurelli, who conducted a psychological evaluation of Joan, which included a review of background information, clinical interview, and a standard battery of psychological tests. During her interview, Joan reported a history of depression and of self-injurious behavior and ideation, but indicated she had received treatment and was taking prescribed medication. She explained the children's most recent removal was a consequence of her trouble with housing; this explanation is partially consistent with the background records Dr. Figurelli reviewed, but she failed to mention the Division's concern with her decision to introduce the children to a potentially dangerous environment.
To ensure the reliability of Joan's test results and, consequently, his recommendations, Dr. Figurelli advised Joan at the outset of testing that if she did not understand any of the questions, she should not respond until he had the opportunity to further explain the question or the applicable instructions. Throughout, Joan never indicated any trouble with the questions, and Dr. Figurelli considered it highly improbable that her results could have yielded, as they did, a "valid" profile consistent with her self-reported history and background materials had she not understood the questions. In addition, had she in fact responded without understanding the questions despite Dr. Figurelli's explicit instructions to the contrary, it would have reflected poorly on her ability to parent. He elaborated that her inability to ask for the help she was offered in advance would have implications for her problem-solving ability and suggested a tendency for "haphazard and reckless" behavior.
Ultimately, Dr. Figurelli concluded Joan had demonstrated "significant and strong borderline traits" evident in her behavior and decision-making, which would likely prove persistent as well as pervasive. He noted, consistent with her history, the following traits were likely to manifest in intense, unstable romantic relationships: fear of rejection and abandonment, trouble detaching herself from conflicted relationships, impulsivity and self-destructive behavior, and difficulty controlling anger and aggression. These traits were evident in many of her past decisions that endangered the children, including permitting Len access to the children, maintaining contact with him, moving with the children into Maggie and William's home, and interacting negatively with Division caseworkers while they were attempting to provide her assistance. Like Dr. Gutierrez, Dr. Figurelli took issue with Joan's decision to return to Maggie's home, regardless of whether the allegations against William turned out to be true, because the "normal adequate parenting response would have been not to expose her children to that situation." Dr. Figurelli did not believe that Joan was capable of safely parenting the children.
The Division next presented Dr. Dumont, who had conducted psychiatric evaluations of Kim and Lisa. Dr. Dumont testified Kim had been suffering from a depressive episode and PTSD. He explained PTSD as an emotional response to a traumatic event, usually involving symptoms of depression, anxiety attacks, and nightmares or flashbacks of the triggering event. The second time he evaluated her, she was uncooperative and guarded throughout the evaluation; Dr. Dumont found this behavior to be volitional and, therefore, not indicative of psychosis, but nonetheless evidence of a compromise in her emotional wellbeing. He recommended she receive continued therapy and remain in the Division's custody. Further, given that Len had sexually abused her and Joan had enabled that behavior, Dr. Dumont favored the eventual termination of parental rights to afford the children necessary permanency, notwithstanding that the Division had not yet identified adoptive homes for Kim and Lisa.
Finally, the Division presented Dr. Wells, who conducted bonding evaluations of Joan with the children and a psychological evaluation of Joan. In preparation, Dr. Wells reviewed Joan's background information and noted concerns with her mental health, housing situation, ability to protect and care for the children, and continued contact with the individual who had perpetrated the sexual abuse of one of the children. She concluded from that review, as well as her observations from Joan's clinical interview and testing, that Joan exhibited a "moderate level of pathology that characterize[d] her overall functioning capacities." In particular, she exhibited use of ineffective coping mechanisms, contradictory and self-defeating behavior, emotional and cognitive dysfunction, impulsivity, and engagement in shallow, "chaotic" interpersonal relationships.
Dr. Wells elaborated that Joan's decisions, for example, returning to a relationship with Len and failing to abide by the restraining order she herself had sought, demonstrated her poor judgment and penchant for impulsive, irrational behavior; this, in turn, raised concerns for her ability to safely parent the children. The record demonstrated that her behavior had further harmed the children by subjecting them to an environment with considerable domestic violence and sexually inappropriate behavior; further, Joan's failure to report Kim's abuse when first told of it and maintaining contact with Len even as Kim was testifying at his trial, implicitly tells Kim she could not depend on her mother for protection.
Dr. Wells diagnosed Joan with depression and borderline personality disorder and concluded she would not be able to parent due to her inability to protect the children, exercise sound judgment, employ effective coping strategies, or even understand her responsibility for the children's circumstances. Indeed, she failed to demonstrate proper insight into her children's needs or sensitivity to their emotional wellbeing and could not even recognize that her continued contact with Len posed any risk of harm to them. Dr. Wells believed Joan's prognosis for improvement was poor, given her history of inappropriate behavior, persistent inability to learn to make better decisions, tendency to minimize the children's emotional and psychological needs, and failure even to recognize the impact of her behavior on the children's wellbeing. While she had complied with treatment in the sense of formally attending therapy sessions, she had failed to benefit from that participation. Dr. Wells concluded that the children would be placed at an unacceptable risk of harm if returned to her care.
During the bonding evaluation, Dr. Wells sought to discern the nature and extent of Joan's relationship with the children, as well as their psychological and emotional connection to her. In that respect, Dr. Wells clarified that her objective in a bonding evaluation is to evaluate the bond between parent and child, the mutual emotional connection sustained by a parent's nurturing, care, communication, and appropriate supervision informed by an understanding of the child's needs. She further evaluated the child's attachment to the parent, the child's dependence on the parent for those needs. Dr. Wells noticed the children were familiar with Joan and generally interacted with her in a natural manner. But Dr. Wells observed that their interactions were typical of children accustomed to seeing parents only in the context of limited visitations. They exhibited no "clingy behaviors" or sadness at the end of the session and never expressed any hope or desire to go home with their mother. On the contrary, they seemed preoccupied throughout. Lisa left the room at one point, Kim stated that she did not really want to be there, Sally was disappointed about the news of Joan's pregnancy, and Julie was "just kind of in her own world." Joan seemed to enjoy being with them but showed them no overt affection and was ineffective in dealing with Lisa's antagonistic behavior toward her sisters.
Based upon these observations, Dr. Wells concluded the children had no significant attachment to Joan because they did not look to her for fulfillment of any of their basic needs; she was also unable to offer, in the foreseeable future, the permanency they needed, given their history of upheaval and instability. Indeed, if they were returned to her care only to be removed again, their ability to trust and develop a bond with future caretakers would be further compromised. Moreover, because the children did not expect to return permanently to Joan, Dr. Wells believed that any harm caused by severing their relationship with her could be effectively addressed with appropriate services and support. Dr. Wells acknowledged that a safe, stable home would be important to ameliorating any such harm; although the Division had yet to find adoptive homes for the children, she still recommended termination of defendants' parental rights.
Joan presented Dr. Brown, who had conducted a psychological evaluation of her, including a clinical interview and testing, as well as a bonding evaluation of her with the children. In preparation, he had reviewed the reports of Drs. Wells, Figurelli, and Gutierrez, Kim's medical evaluation from Audrey Hepburn Children's House, and one of Joan's CEC evaluations.
Dr. Brown concluded Joan had the capacity to safely parent the children with appropriate counseling and support. He found evidence of a learning disability consistent with her educational background. In particular, he believed her third-grade reading level cast doubt on the reliability of the other psychological testing administered without appropriate accounting for her disability. He explained Joan's successful graduation from high school and certification as a home health aide despite her evident disability amply demonstrated she could "compensate and adapt" by responding effectively to feedback. Her test results further showed no evidence of psychopathology or aberrant personality functioning.
Dr. Brown further determined the children had a bond with Joan, who interacted appropriately and naturally with them during the evaluation. He believed they would be subjected to enduring harm were that bond severed in favor of termination. Dr. Brown, however, did acknowledge on cross-examination that he was unaware that the children had made disclosures of domestic violence in defendants' relationship, that Joan had failed to contact the police when Kim first reported the sexual abuse to her, and that she continued to contact Len. Nevertheless, he continued to opine that, while Joan had exercised poor judgment in the past, she would be able to successfully modify her behavior with appropriate feedback from a parenting mentor. She would require such services until she could successfully demonstrate that she was not repeating the same mistakes.
Early in the trial, a caseworker supervisor testified that all of the children indicated they wanted to return home, but did not refuse to be adopted. At that point, because the Division's plan remained to place the children through select home adoption, an adoptions operations specialist was offered to explain the process and how it would be implemented in this case. She observed from her review of the record that the children had a particular need for permanency and stability and had some history of aggressive behavior and sibling rivalry, but wished to remain together. Consequently, she assured that, if no adoptive home could be found for all four children together, each prospective adoptive family would be screened for its willingness to permit continued contact among the siblings. In all, she had been successful finding suitable adoptive homes for many children with similar special needs, including children who had suffered severe sexual abuse.
"Select home adoption" is a "process that includes looking for an adoptive home in New Jersey and registering the child on the national adoption exchange." N.J. Div. of Youth & Family Services v. E.P., 196 N.J. 88, 98 (2008).
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By that point, none of the children had been in their current placements for much more than a year. After their first removal, Kim and Lisa had been placed together, though they fought constantly; and Sally and Julie were each placed in separate foster homes. After the second and final removal, the Division initially placed Kim with Sally and Lisa with Julie in two separate foster homes. The Division attempted to place all four children together in February 2012, but their foster mother worried about Lisa's aggressive behavior toward her siblings and doubted her ability to meet Lisa's needs. Sally and Julie were then placed in the foster home where they remained at the time of trial, and an adoption caseworker testified later in the proceedings that their foster mother was now committed to adopting them. Kim and Lisa, initially paired together again, eventually wound up in separate foster homes, and Kim was also assigned a mentor.
Kim testified in chambers on the final day of trial, where she was examined by the court from a list of questions agreed to by all parties. She understood the Division's plan was for adoption, but disagreed with it, because she would miss her sisters, mother, and other family members. In the event she could not return home, though, she preferred adoption over foster care, because she did not want to remain "in the system," having already had five foster placements. In that case, she would want to be adopted by her foster mother, her mentor, or the aunt of one of her friends.
Kim disclosed that she sometimes had "outbursts" or suffered "flashbacks" or nightmares from her abuse or the domestic violence between her parents. Asked whether she believed her mother was capable of resuming care of her and her sisters, she responded "somewhat yes," because she believed "deep down in [her] heart" that she was capable of parenting five children, but "somewhat no" because of the difficulties she had had raising them before and the "whole bunch of bad decisions that [Joan had] made."
II.
A parent's right to enjoy a relationship with his or her child is constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). This constitutional protection is tempered, however, by the State's responsibility to protect the welfare of children. In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999). The best interests of the child standard set forth in N.J.S.A. 30:4C-15.1(a) is an effort to balance these interests. Ibid. This statute provides that the Division shall petition the court for termination of parental rights if the following four standards are met:
(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.
[N.J.S.A. 30:4C-15.1(a).]
Those criteria are not mutually exclusive, but instead overlap "to provide a comprehensive standard that identifies a child's best interests." K.H.O., supra, 161 N.J. at 348. A court's application of the best-interests standard is a fact-sensitive undertaking, which must rely on particularized evidence addressing the circumstances unique to each case. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258-59 (App. Div. 2005).
A court's conclusion as to whether termination is in the children's best interests will be accorded deference on appeal so long as the court's findings are supported by substantial, credible evidence in the record. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Such deference is particularly appropriate given the family court's expertise in domestic affairs, Cesare v. Cesare, 154 N.J. 394, 413 ( 1998), and its opportunity to observe witness testimony first-hand to evaluate credibility. 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).
The first prong of the best interests test requires that the Division demonstrate harm to the child. K.H.O., supra, 161 N.J. at 348. Although a single harm may suffice, the focus is on the cumulative effect of harm the parent causes over time. Ibid.
Joan contends the trial court erroneously found she had harmed her children and the harm that resulted in the children's removal was attributable only to Len, not to her. Len does not contest that he placed all of the children at risk of harm by molesting Kim.
Pursuant to the first prong of the best-interests standard, the Division must prove that harm arises from the circumstances surrounding the parent's relationship with the children, N.J. Div. of Youth & Family Servs. V. M.M., 189 N.J. 261, 289 (2007), such "that [it] threatens the child[ren]'s health and will likely have continuing deleterious effects" on them. K.H.O., supra, 161 N.J. at 352. The harm need not be physical. In re Guardianship of K.L.F., 129 N.J. 32, 44 (1992). Indeed, "[s]erious and lasting emotional or psychological harm" that results from a parent's action or inaction may justify termination. Ibid. Nor need the parent be morally culpable for the harm so long as the parent is "unable or unwilling to prevent [it] irrespective of [its] source." M.M., supra, 189 N.J. at 289. An inability to safely care for a child due to mental illness, for example, may be grounds for termination. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 436-40 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002).
Here, the court found that Joan's persistently poor judgment endangered the children's health, safety, and welfare. She permitted them to have contact with Len, in violation of a restraining order, and with William, despite allegations that he was a sex offender; further, she continued to contact Len even after his conviction for sexually assaulting their daughter. Her disregard of the restraining order, in particular, permitted Len access to Maggie's home, where a number of his sexual encounters with Kim occurred. Crediting Drs. Figurelli, Gutierrez, and Wells, the judge found that Joan's struggle with borderline personality disorder would present a substantial risk of harm should the children be reunited with her. In all, the court concluded her pattern of behavior and its consequences for her children demonstrated that she had been "unable to protect or care for [them] in the past," and that all of them, particularly Kim, were harmed by that inability.
Nonetheless, Joan insists the court never found any harm attributable to her. She acknowledges she permitted Len to access the home, but notes she never had any knowledge of the sexual abuse and the impetus for seeking the restraining order was Len's physical abuse of her, not the children.
However, the court plainly found Joan responsible for much of the harm that resulted in the children's removal based on sufficient credible evidence in the record. See J.N.H., supra, 172 N.J. at 472. She may be correct that she never affirmatively caused Kim's sexual abuse, but she afforded Len the opportunity to perpetrate the abuse by allowing him access to the children in clear violation of a restraining order. Moreover, she failed to contact the police after learning about the abuse until Maggie insisted that she do so.
Although Joan correctly notes William was never substantiated for abuse, the record supports the court's finding that her refusal to leave Maggie and William's home to accept alternative housing arrangements for herself and the children was indicative of her pattern of failure to protect the children. The court credited Drs. Figurelli and Gutierrez, both of whom concluded the trouble was not whether the allegations about William were true, but that Joan never responded appropriately to them; consequently, this revealed a flaw in her psychological functioning and, consequently, her ability to safely parent the children.
Lastly, Joan asserts that Len's incarceration eliminates any unacceptable risk of harm to the children notwithstanding her continued correspondence with him. However, the court independently concluded, based on adequate evidence in the record, that Joan had herself harmed the children by permitting Len access to the home, failing to promptly notify the police about Kim's abuse, and refusing to modify her housing arrangements in appropriate response to the allegations against William. Although Joan may be correct that her correspondence with Len need not inherently pose a danger to the children, the court credited expert testimony that this correspondence was indicative of a broader pattern of poor judgment. The court further found, based on this testimony, her poor judgment impedes her ability for safe parenting. It was the trial court's prerogative to credit this testimony. See R.L., supra, 388 N.J. Super. at 88. Therefore, the first prong of the best-interests standard was firmly established by clear and convincing evidence in the record and Joan's arguments to the contrary lack merit.
The second prong of the best interests test addresses the parent's unwillingness and inability to eliminate the circumstances causing harm to the child. N.J.S.A. 30:4C- 15.1(a)(2). This element reinforces the first element concerning harm to the child and looks to the parent's ability and desire to overcome the obstacles that prevent him or her from providing the child with a safe and stable environment. K.H.O., supra, 161 N.J. at 348-49. The focus of this element is not the fitness of the biological parent, but whether he or she can cease causing the child harm before any delay in permanent placement becomes a harm in and of itself. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Joan asserts the weight of the credible expert testimony supports her argument that her consistent compliance with services demonstrates she was both willing and able to eliminate the harm facing the children. Len, now incarcerated, does not contest that he remains unable to provide the children with a safe, stable home.
Regarding the second prong, the trial court cited Joan's pattern of behavior that placed the children at a substantial risk of harm and the weight of expert testimony, concluding that her severe personality dysfunction left her with a poor prognosis for breaking that pattern. The court explicitly declined to credit Dr. Brown's contrary testimony that Joan might be able to modify her behavior with appropriate feedback. The court noted Joan continued to endanger the children by remaining in contact with Len, going so far as to send him a photo of herself with three of the children just a few months prior, despite the clear, inappropriate nature of the contact.
In addressing Dr. Brown's suggestion that a mentor in the home could help Joan safely parent the children, the court concluded Joan would require full-time supervision from such a mentor "apparently forever." The court further declined to credit Dr. Brown's testimony because he lacked important information when he evaluated Joan, including the extent of Len's access to the children, Joan's failure to report Kim's claim to the police, and the level of domestic violence in the home. The court instead relied on the testimony of Drs. Figurelli, Gutierrez, and Wells to conclude that Joan would not likely be able to provide a safe, stable home for the children within the reasonably foreseeable future.
Joan asserts, though, that she was willing to eliminate the conditions that led to the children's removal, claiming she complied with all recommended services, including parenting classes and domestic violence counseling, and consistently took advantage of the opportunity for visitation. However, the court never found Joan unwilling to provide the children with a safe, stable home, only that she was unable to do so. To that end, the court relied on expert testimony finding, despite her general compliance with services, her prognosis remained poor for changing the behavior that precipitated the children's removal from her care. Dr. Wells in particular concluded Joan continued to minimize the impact of her parenting deficits on the children's wellbeing and showed little change over the course of the litigation, opining she would remain unable to safely parent the children, even with further help.
Joan disputes that the weight of expert testimony compelled the conclusion reached by the trial court. Contrary to Joan's claims, Drs. Gutierrez, Figurelli, and Wells all testified to Joan's personality disorder, explaining that it was longstanding, persistent, and difficult to treat effectively. While Joan correctly notes Dr. Gutierrez made some mention of her past progress, he maintained she continued to display a pattern of poor judgment and remained at "high risk" of continuing the same problematic behavior. Joan also misinterprets Dr. Figurelli's testimony that she showed little evidence of illness, a conclusion limited to a particular series of tests based on her self-reported symptoms. To the contrary, Dr. Figurelli concluded, from the balance of her testing, history, and clinical interview, that Joan suffered from borderline personality disorder and depression.
Joan last argues that the court should have accepted the opinions of Dr. Brown instead of the Division's experts. However, the court explicitly rejected Dr. Brown's contention that the opinions of the Division's experts were unreliable to the extent they relied on testing administered without appropriate accommodation of Joan's purported reading limitations. It concluded, relying on Dr. Figurelli, that Joan "must have understood the test," because her results were consistent with her self-reports and other evidence in the record. Indeed, Dr. Figurelli specifically noted it would be "highly improbable" for Joan to produce valid test results consistent with her self-reports and history through random responses, and to do so for multiple evaluators, if her reading limitations precluded her from completing the tests.
The court did not err in determining that the Division satisfied the second prong of the best-interests test. There was clear and convincing evidence to support the finding that Joan is unable to eliminate the harm to her children or to provide them with a safe and stable home. See K.H.O., supra, 161 N.J. at 348-349.
Pursuant to the third prong of the best-interests standard, the Division must demonstrate it made reasonable efforts to provide the parents with appropriate services, and the court must consider viable alternatives to termination. M.M., supra, 189 N.J. at 281. Such efforts should be directed toward reunification of the family, as appropriate, K.H.O., supra, 161 N.J. at 354, and meant to aid the parent in correcting those circumstances that occasioned the children's removal in the first place. In re Guardianship of D.M.H., 161 N.J. 365, 386-87 (1999). The reasonableness of the Division's efforts depends on the circumstances of each case rather than on the success or failure of those efforts. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 620 (App. Div.) (citing D.M.H., supra, 161 N.J. at 393), certif. denied, 192 N.J. 68 (2007).
The regulations define "reasonable efforts" as "the provision of services to the family that are individually assessed to be relevant to the case goal, coordinated with other services, available and accessible and that have a realistic potential to meet the child's needs for a safe, secure, and permanent relationship with a family or other permanent arrangement." N.J.A.C. 10:133-1.3. Such efforts may include:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;In K.H.O., for example, the Division made reasonable efforts by attempting to place the child with relatives or friends, facilitating parental visits, and referring the parent for appropriate services and treatment programs. K.H.O., supra, 161 N.J. at 354.
(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.
[N.J.S.A. 30:4C-15.1(c).]
In its decision, the trial court found the Division had made reasonable efforts to help Joan and the children. It had been working with the family since April 2006 and provided Joan with individual therapy, parenting skills classes, psychiatric and domestic violence counseling, evaluations through CEC, supervised and therapeutic visitation with the children, and medication management. Further, the Division paid the family's rent on at least one occasion and offered family counseling and daycare services for the children. All four children were provided individual counseling and afforded weekly sibling bonding sessions.
The court noted the Division had also made efforts to place the children with relatives. Indeed, the Division had ruled out Joan's sister and brother, both of whom stated they were not in a position to care for the children. The Division had further considered and ruled out Maggie. Although, the court acknowledged Maggie's husband had never been substantiated as an abuser, the court credited caseworkers' testimony that the Division remained concerned about this placement because Maggie had allowed Len into her home despite knowing of the restraining order against him; as such, Maggie afforded him the opportunity to sexually abuse Kim.
Finally, the court noted no alternatives to termination existed because defendants had identified no other person who would be willing to parent all four children as a kinship legal guardian. Thus, the Division had satisfied its burden for the third prong of the standard.
On appeal, Joan concedes the Division had referred her for a "quantitatively substantial amount of services," but faults it for directing its efforts to termination, rather than reunification, once it removed the children from her care for the second time. She asserts the Division then abruptly redirected its resources to subjecting her to evaluation upon evaluation until it found Dr. Wells, an expert willing to conclude that termination of her parental rights would be appropriate.
Regarding this claim, Joan overstates the extent to which Drs. Gutierrez and Figurelli believed she would be capable of improvement with further counseling. While Dr. Brown concluded she was capable of such improvement, the court explicitly disagreed with her as to Dr. Brown's relative credibility. Moreover, even after the children's removal, Joan was continuously offered supervised visitation and counseling, but discontinued her participation in the BCMHC program herself. Thus, the court's conclusion the Division had made reasonable efforts to provide her services finds ample support in the record.
Therefore, the court's conclusions as to the third prong of the best-interests standard find the support of sufficient, credible evidence in the record, and defendants' arguments to the contrary lack merit. The third prong was firmly established by clear and convincing evidence.
To satisfy the final prong of the best-interests standard, the Division need not demonstrate that no harm will result from termination, but only that any such harm will be outweighed by the harm resulting from non-termination. K.H.O., supra, 161 N.J. at 355. This analysis acts as a fail-safe to prevent "an inappropriate or premature termination of parental rights," even once the Division has satisfied its burden as to the remainder of the standard. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 453 (2012). The trial court's evaluation should be informed by the children's need for stability and permanency, K.H.O., supra, 161 N.J. at 357-58, as well as by the quality of their relationships with parents and foster parents in light of testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of those relationships. J.C., supra, 129 N.J. at 19.
Both defendants argue that ordering termination would harm the children, absent any certain adoptive prospects for them, and, even to the extent the foster mother for Sally and Julie expressed some interest in adoption, no comparative bonding evaluations were conducted on which the court could base its decision. Moreover, at the time of trial, all of the children still wished to eventually return to Joan's care and to remain together.
Regarding Len, the court concluded termination of his parental rights would not do more harm than good, because he had destroyed the parent-child bond by sexually abusing his daughter, which resulted in harm to the other children in terms of instability and behavioral problems. Len also lacks the ability to ever provide the children with a safe, stable home due to his lengthy incarceration. These conclusions find overwhelming support in the record.
As for Joan, the court credited Dr. Wells' testimony that there was some attachment between her and the children, but no secure bond; they did not look to her for their everyday needs, nurturing, or comfort. None of the children expressed or otherwise exhibited any desire or expectation to go home with Joan or displayed any overt affection toward her during their bonding evaluation. Instead, in Dr. Wells' opinion, they perceived their time with her only as a "pleasant temporary situation."
While the court considered Dr. Brown's testimony that Joan had a bond with the children which would cause them trauma if broken, the court reiterated the concern that Dr. Brown had conducted his evaluation with incomplete information regarding Kim's sexual abuse, Joan's knowledge of that abuse without informing the police, or defendants' history of domestic violence. Moreover, Dr. Brown had "failed to adequately address that[,] while the children enjoyed [Joan's] company . . . , they ha[d] little to no expectation that she w[ould] . . . ever be the nurturing, parenting figure for them or the person to whom they w[ould] look for guidance and protection." Instead, the court relied on Dr. Wells' evaluation to conclude that termination of Joan's rights would not do more harm than good.
Although there are "very few scenarios" in which comparative bonding evaluations are not required, N.J. Div. of Youth & Family Servs. v. A.R., 405 N.J. Super. 418, 440 (App. Div. 2009), this case presents such a scenario. The argument that the fourth prong is satisfied here is not that the children would be harmed by losing their relationship with their respective foster parents, which plainly would require comparative evaluations. See J.C., supra, 129 N.J. at 18. Rather, the harm posed is defendants' unfitness as parents, irrespective of any attachment any of the children has to her foster family.
Indeed, our courts have long recognized that termination may be warranted where no immediate prospect for adoption exists and, consequently, where no comparative evaluations with prospective adoptive parents could even be available. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 611 (1986). This can occur in circumstances where the search for an appropriate home cannot be undertaken until after termination. Such is the case with Kim and Lisa.
A Division caseworker testified that the children did not refuse to be adopted. Their wish, at least as of the time of trial, was to return home and remain together, and Dr. Seglin noted that, all else equal, placement together would be preferable. Although, the trial court never found here that no harm at all would result from termination, the record fully supports the judge's conclusion that whatever harm may result from termination will be less than the harm the children will likely sustain from continuation of the parent-child relationship with defendants.
Additionally, the court found Joan had no secure bond with any of the children. Although none of the children had an adoptive parent prepared to proceed with adoption at the time of trial, the current resource parent for Sally and Julie represents a strong possibility. Allowing the children to be free for adoption increases the likelihood that they will achieve permanency in the future. Thus, the underlying fundamentals of the best interests test, to provide a child with an opportunity to find a permanent and stable home, were satisfied. See N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 92 (2006) .
Because of the absence of a secure bond between defendants and their children, the children's recognized need for immediate permanency and the inability of either parent to meet that need in the reasonably foreseeable future, if ever, fully supports the court's conclusion that termination would not do more harm than good. Therefore, sufficient, credible evidence in the record support the court's conclusions as to the fourth prong of the best-interests standard, and defendants' arguments to the contrary lack merit. The fourth prong was firmly established by clear and convincing evidence.
We are satisfied the record fully supports the decision to terminate defendant's parental rights. The court applied the correct legal standards to its factual conclusions.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION