Opinion
DOCKET NO. A-2441-13T3
01-29-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. K.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF D.M., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-46-13. Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea Silkowitz, Assistant Attorney General, of counsel; Patricia J. O'Dowd, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant K.T. (mother) appeals a final judgment entered by the Family Part terminating her parental rights to her daughter, D.M. (Diana), born in 2005 and presently nine years of age. We affirm.
We refer to the child by a fictitious name to protect her privacy and for ease of reference.
The mother has four other children. The mother gave an identified surrender of her parental rights to one child; two are in the custody of relatives; and the mother's parental rights to the fourth child were terminated.
I
The Division of Child Protection and Permanency (Division), which has been involved with the mother since 2003, filed a verified guardianship complaint on May 13, 2013, alleging, among other things, that she had a long-standing history of abusing illicit drugs and had failed to provide Diana with adequate housing and supervision. The complaint also alleged the mother physically abused Diana.
The record before us reveals that, on July 30, 2009, the Division received a report that the mother beat Diana while under the influence of Phencyclidine (PCP) and alcohol. A Division caseworker went to the mother's residence and interviewed her. The mother admitted to hitting and leaving hand marks on Diana, then three years of age, because the child was "out of control" and was being "fresh." The mother also admitted to drinking alcohol and smoking PCP on the day of the incident, saying she consumed "[a lot] of everything." The child was also interviewed, and stated she wanted to stay with her grandmother because her mother hit her too much. The Division caseworker observed marks, scratches, and a bruise on the child's face, as well as a scratch on her left shoulder.
The Division substantiated the allegations of physical abuse and neglect and, on August 3, 2009, exercised its authority under N.J.S.A. 9:6-8.29 to take custody of Diana and the other two children in the mother's custody at that time. Diana was never returned to her mother's care. On August 4, 2009, the Division filed a verified complaint for the care, custody, and supervision of the children pursuant to N.J.S.A. 9:6-8.21, N.J.S.A. 30:4C-12, and Rule 5:21-1.
N.J.S.A. 9:6-8.29 authorizes the Division to take custody of a child if there is evidence the child's life, safety, or health will be in imminent danger if left in a parent's care and there is insufficient time to apply for a court order.
At the conclusion of a fact-finding hearing, held on November 19, 2009, the trial court found by clear and convincing evidence that the mother had struck the child with excessive force, and that the mother's use of drugs and alcohol while caring for the children was an act of neglect. Over the next two years, the court entered a number of orders directing the mother to attend parenting classes and engage in substance abuse treatment.
The verified complaint was dismissed when the Division filed a guardianship complaint on September 16, 2010. After the guardianship trial, the court determined the Division had not met its burden under N.J.S.A. 30:4C-15.1(a)(3) because there was an alternative to termination of parental rights, specifically, placement with a family member. The court ordered the children placed with their maternal grandmother.
To terminate a party's parental rights, the Division must show by clear and convincing evidence the following four factors:
(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).]
On January 15, 2013, the grandmother informed the Division she was unable to continue caring for the children. The Division removed Diana and the other child in the grandmother's care. On May 13, 2013, the Division filed a new guardianship complaint against the mother and Diana's father.
On August 2, 2013, Diana was placed with Debra, who wishes to adopt Diana. Debra is the mother of Diana's half-brother. On November 4, 2013, the father gave an identified surrender of his parental rights to Debra.
We refer to her by only her first name, which is fictitious, to protect her privacy.
The evidence adduced at the guardianship trial revealed the following. The mother entered approximately thirteen different drug treatment programs but was unable to successfully complete any. Over the course of the litigation the mother consistently tested positive for drugs, or declined to be tested, creating the inference she knew she would have tested positive had she given a urine sample. Just one month before the trial, she tested positive for PCP.
The only expert who testified at trial was psychologist Rachael Jewelewicz-Nelson, Ph.D., who conducted a psychological evaluation of the mother, as well as a bonding evaluation of her and child and Debra and the child. In her clinical interview with the mother, Dr. Jewelewicz-Nelson noted:
That [the mother is] depressed, [and] has a history of repeated attempts and failures at sobriety and maintaining abstinence from substance abuse, that she has a history of volatile and unstable relationships both with her family and with her paramours. She has never worked and supported herself.
Regarding the mother's specific capacity as a parent, the expert concluded:
She has a shallow and superficial relationship with her children where she sees them as meeting her emotional needs, but she doesn't really understand the responsibilities and roles of a parent vis-a-vis children. . . .
[The mother] can't take care [of] herself let alone take care of a child. She barely understands her own ego needs and drives. She can barely take care of herself and handle her own needs and fears and anxieties, and she has nothing left with which to pay attention to a child and recognize that child's needs as separate and different from her own. . . .
[The mother] said that she has never yet been able to complete a substance abuse [program]. After failing so many attempts, it is unlikely that she would succeed in maintaining sobriety in a future attempt. [The prognosis for change is] highly limited and quite poor.
Dr. Jewelewicz-Nelson acknowledged that there was a warm bond between the mother and Diana, but characterized the bond as "insecure and unhealthy," likening it to a relationship between peers rather than between a mother and daughter. By contrast, the bond between Debra and Diana was much stronger despite being formed over a shorter period.
Dr. Jewelewicz-Nelson concluded that if Diana were returned to her mother and reunification failed, Diana would feel she had to take care of herself, a feeling that would increase the likelihood of engaging in self-destructive behavior later in life. The psychologist recommended that Diana be "freed for adoption" by Debra. In her expert's report, which was admitted into evidence, Dr. Jewelewicz-Nelson also opined that termination will not cause more harm than good.
The mother was the only witness to testify in her case. She testified that she learned nothing from and was not helped by any of the drug treatment programs. When asked why the programs did not help, the mother answered, "A lot of different things in the - - issues with the program, issues me myself [sic], just depression, not staying still, chasing a man, not focused. I wasn't ready." She admitted she still uses and has a problem with drugs. She denied hitting her daughter during the incident that led to Diana's removal.
II
A Family Part's decision to terminate parental rights will not be disturbed when there is substantial credible evidence in the record to support the court's findings. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012) (citing N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
Here, despite entering approximately thirteen drug treatment programs, the mother was unable to complete any program and remained drug addicted by the time of the termination trial, exhibiting either an inability or unwillingness to overcome her addiction. The Division presented overwhelming evidence of the mother's parental unfitness and established, by clear and convincing evidence, all four statutory prongs outlined in N.J.S.A. 30:4C-15.1 and discussed and approved by our Supreme Court in In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).
After carefully considering the record and the briefs, we conclude defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Mindful of the deference appellate courts owe to decisions made by Family Part judges, especially those decisions that are heavily dependent upon the trial judge's credibility determinations, N.J. Div. of Youth & Family Servs. v. R.G, 217 N.J. 527, 552 (2014), we affirm substantially for the reasons expressed by Judge Sabbath in his oral opinion delivered from the bench on January 13, 2014.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION