Opinion
DOCKET NO. A-1581-13T4
01-22-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.A.J., Defendant-Appellant, and N.M.N., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF D.D.J., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Randi Mandelbaum, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-0101-13. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Maureen Bull, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Randi Mandelbaum, Designated Counsel, on the brief). PER CURIAM
Defendant L.A.J. (Luke) appeals the Family Part's November 21, 2013 order terminating his parental rights to his son D.D.J. (Darren). We affirm.
We use pseudonyms to refer to the individuals in this case for the purposes of confidentiality and clarity.
I.
We discern the following facts and procedural history from the record on appeal.
The Division became involved with Darren's biological mother, N.M.N. (Nancy), in August 2011, when she was sixteen years old. Nancy's grandmother advised the Division that she no longer wished to be Nancy's caretaker. The Division then placed Nancy in foster care.
At the time, Nancy was between twenty and twenty-five weeks pregnant, not receiving prenatal care, and living in an abandoned house in Newark with Luke, the father of her unborn child. On August 15, 2011, the Division held a family team meeting, which Nancy and Luke attended. At the family meeting, the Division created a plan for Nancy to re-enroll in school, undergo prenatal care, take parental skills classes, meet with her grandmother and the baby's father weekly, and receive individual counseling.
Nancy gave birth to Darren on December 1, 2011. When Nancy was discharged from the hospital, she took Darren to her foster home.
In October 2013, Nancy surrendered her parental rights in favor of Darren's foster parent, V.W. (Valerie). She has not participated in this appeal.
On December 20, the Division filed a verified complaint for custody of Darren. The Family Part judge granted the Division care and custody of Darren, explaining that Nancy lacked "adequate means to provide for [Darren]" and that Luke was then "homeless." Nancy and Darren continued to live at Nancy's foster home.
In April 2013, Darren was placed at the pre-adoptive home where he resided at the time of trial.
Over the next year-and-a-half, the Division arranged for services for Nancy, including a teen mother program, parenting skills classes, a psychological evaluation, individual therapy, a substance abuse evaluation, substance abuse treatment, and a bonding evaluation. During that period, Nancy went missing at times and was only intermittently compliant.
In February 2012, the Division referred Luke for a parenting program at Babyland in Newark. Luke and Darren had weekly supervised visits until May 2013, when he was incarcerated.
In September, Mark Singer, Ed.D., performed a psychological evaluation of Luke. Luke told Singer that he had just lost his job and was living in a shelter. He advised Singer that his disciplinary plan for his child would entail the use of a "'belt.'" Luke told Singer that his plan to regain custody of Darren was to become employed, return to school, obtain an apartment, and get assistance from his father and aunt. He reported using marijuana several times per week.
Singer noted that Luke "minimize[d] personal faults," "ha[d] difficulty acknowledging and responding to the needs of others," "ha[d] an inflated sense of self-worth," and "h[eld] rigid views of how children should appear and behave." Singer opined that Luke "lack[ed] the resources needed to parent [Darren]" but was "likely to become a more viable parenting option" if he: (1) continued to attend supervised visits; (2) completed a parenting skills training program; (3) obtained employment; (4) maintained appropriate housing; (5) completed substance abuse treatment and remained drug-free; and (6) participated in individual therapy. Luke was referred to parenting skills classes at the Family Service Bureau, which he completed in February 2013.
On December 3, 2012, the Family Part judge held a permanency hearing, at which Luke did not appear. The judge approved the Division's plan of termination of parental rights followed by adoption, noting that Luke was "currently homeless and c[ould not] provide for [Darren]." In January 2013, the Division filed a complaint and an order to show cause seeking guardianship of Darren.
At the time the guardianship complaint was filed, Luke was living in a rented hotel room in Newark. In February 2013, he was living "'with a friend.'" The Division did not have a working telephone contact number for Luke. In January, Luke directed the Division to send written correspondence to his father's address in Newark.
In May, June, and July, Luke was still unable to provide a working telephone number. He advised the Division that he did not yet have his own housing. On August 15, a Division worker suggested that Luke apply for welfare to enable him to procure housing. Luke replied that he "d[id]n't need welfare, and [] d[id]n't want to deal with everything [welfare would] put [him] through." At the time of trial in October 2013, Luke had still not provided the Division with a working telephone number or a permanent address.
During the Division's early involvement with Luke, he told a Division worker that he needed assistance with a security deposit. The worker informed him that "as long as he could provide . . . proof that he would be able to maintain his apartment, . . . [the Division] would look into paying his security deposit." Although the Division repeatedly asked Luke for paystubs, he provided only four, two each from 2012 and 2013.
The Division explored alternate placements for Darren with Luke's family. When asked about "relative resources," Luke replied that he did not have "any family." Luke told the Division that his father's building was unsuitable for children.
As of February 2012, the Division had scheduled Luke for weekly supervised visits with Darren. Luke was "very consistent with visits in the beginning." "[H]owever, as the case progressed, [his visits] went from being consistent to frequent[], to very sporadic."
The Division referred Luke for substance abuse assessments in February and May. He failed to appear for those and subsequent substance abuse assessments.
In February 2013, the Division provided Luke with individual therapy. According to the Division, he attended the first three sessions, but missed appointments in March, April, May, and June 2013. He was discharged from the program for noncompliance. Luke's failure to attend was due in part to his incarceration on "old warrants" in May. The Division referred him to individual therapy after his release, but Luke never attended any further sessions.
Singer performed a second psychological evaluation on Luke in May. During the evaluation, Luke told Singer that he had never lived with Darren and lacked his own apartment. When asked about the appropriate discipline for a child, Luke replied: "'Isolation or just talk. Physical is not my stick.'" Luke represented that his father and aunt would help him care for Darren and that he planned to get an apartment, return to school, and obtain employment as a corrections officer.
Luke was living with his father but told Singer that Darren could not live there because there was "'not enough space.'"
At the time of the interview, Luke was using marijuana daily. He told Singer that "'nothing major'" had changed since his last evaluation "that would render him capable of caring for his son." Singer's test results "suggest[ed] that [Luke] . . . lack[ed] nurturing skills and may be unable to handle parenting stress."
Following the second evaluation, Singer concluded that Luke was neither a viable parenting option for Darren nor likely to become one in the foreseeable future. He found that Luke "ha[d] been unable to muster the emotional resources needed to parent." Singer underscored that Luke's "continued use of marijuana . . . raises concerns regarding [his] ability to adhere to limits placed upon his behavior" and that Luke was "at a significant risk for continued substance abuse."
Singer offered the following conclusions regarding Luke and Nancy, who had not yet surrendered her parental rights:
Considering the totality of the data, and within a reasonable degree of psychological certainty, it [i]s not likely that either of these individuals, either individually or collectively, will become viable parenting options for [Darren] in the foreseeable future. In actuality, both of these parents are quite young, appear to be immature, and are likely to continue to struggle to create stability in their own lives, never mind the life of a dependent child.
While the available data does support [the Division]'s plan of pursuing termination of parental rights, the data is limited. As [Darren] is approaching 18 months of age, and considering that the child has had contact with both adults, it is recommended that a bonding evaluation occur in order to have a more complete picture.
In September, Singer conducted a bonding evaluation of Darren and Valerie, who had been his foster mother for the last six months. Valerie worked as an office manager. Darren, Valerie, and her nine-year-old biological child lived in a two-bedroom apartment.
Valerie told Singer she intended to adopt Darren. During the interactive phase of the evaluation, Singer noted that Valerie and Darren laughed, smiled, made appropriate extended eye contact, and "exchang[ed] hi-fives and kisses." Valerie "provided appropriate structure," to which Darren "responded well." When Valerie left the observation room, Darren cried for a few minutes, and when Valerie reentered, Darren "ran over to her."
According to Singer, "the data [] suggest[ed] that a foundation for a healthy parent–child attachment ha[d] been formed." Singer pointed to Darren's anxiety upon being separated from Valerie, the eye contact, smiling, kissing, and laughing between Darren and Valerie, and Darren's behavioral and verbal mirroring of Valerie. Singer also observed:
[W]ithin a reasonable degree of psychological certainty, should [Darren] lose his relationship with [Valerie], the child would likely experience a significant reaction to such a loss. This reaction would likely include the child regressing both emotionally and behaviorally. . . .
. . . .
. . . [Darren] has been with [Valerie] for over 30% of his young life. He has clearly come to view [Valerie] as being his psychological parent and this relationship is likely to solidify even further over time. For [Darren], every day that transpires increases the risk of creating both significant and enduring harm to
[Darren] should his relationship with [Valerie] be severed. This enduring harm would likely include [Darren] experiencing feelings of loss, insecurity, lose [sic] self-esteem, and he would likely have difficulty forming meaningful attachments later in life.
[Darren] clearly requires consistency and permanency. The totality of the data support[s the Division]'s plan to pursue permanency by adoption by [Valerie] so that [Darren] may be afforded with the opportunity to achieve the permanency he needs to thrive. Neither biological parent has the recourse [sic] needed to provide [Darren] with the stability, consistency, and permanency he requires.
While [Luke] has not participated in a bonding evaluation, it is of significant concern that he missed his appointment and reportedly has declined to participate in future bonding evaluations. Such a report raises concerns regarding [Luke]'s level of commitment to [Darren].
As noted by Singer, Luke declined to participate in a bonding evaluation. He informed the Division that "he no longer wanted to participate in any services." In October, Luke also delivered a letter to the Division, in which he wrote that he wanted to "sign over [his] rights" because he was "not prepared to take care of [Darren] and [he] d[idn']t see [him]self [being prepared] anytime soon." However, he never voluntarily surrendered his parental rights. He also informed the caseworker that he would be "attending [his] last visit [the following] week."
The two-day guardianship trial took place in October. The Division presented two witnesses: caseworker Latoya Jones and Singer, who was qualified as an expert in psychology. They testified consistently with the facts described above. Luke presented no witnesses.
Luke did not appear on the first day of trial. Consequently, he was not present during Jones' and Singer's testimony. When Luke appeared on the afternoon of the second day, the trial judge allowed him to make a sworn statement. Luke said: "As far as my son goes, I do want to take care of him. I understand at the moment I'm not, I can't do it at the moment." He asked for the opportunity to continue visitation and requested that the judge not terminate his parental rights. In a brief oral decision that day, the judge "f[ound] that all four prongs of the statute ha[d] been met by clear and convincing evidence."
On November 18, the trial judge delivered an oral decision with detailed findings of fact and conclusions of law. With respect to the first prong of the test set forth in N.J.S.A. 30:4C-15.1(a), the judge concluded that the Division met its burden because Luke "lack[ed] the stability and resources needed to parent [Darren]." The judge pointed out that Singer, whose testimony was unrefuted and found to be credible, had provided Luke with a list of services that he would need to complete to parent Darren adequately. Luke's "refusal to participate in services . . . show[ed] a pattern of parental inaction and neglect." The judge highlighted Luke's failure to participate in visits with Darren, particularly right before trial, and his refusal to submit to a bonding evaluation. The judge noted Luke's lack of stable housing and employment, as well as his failure to complete any substance abuse assessments.
The judge emphasized that Valerie had provided Darren with "a safe and stable home" and was "committed to adopting [Darren]." He also relied on Singer's opinion that Darren would "suffer harm" if reunified with Luke because of Luke's inability to "remedy the conditions leading to [Darren]'s removal."
Turning to the second prong, the trial judge concluded that Luke "ha[d] failed to demonstrate his willingness or ability to eliminate the harm facing [Darren]." The judge listed numerous services provided by the Division, in accordance with Singer's recommendations, and noted that Luke had completed or taken advantage of very few of the services offered. The judge placed substantial weight on Singer's May 2013 report, which followed Luke's second psychological evaluation and concluded that Luke was unlikely to become a viable parenting option in the foreseeable future. The judge also underscored that Jones' testimony, which he found credible, established that Luke's visits with Darren had gone from fairly consistent to sporadic.
As for the third prong, the trial judge found that there was "no question that the Division made reasonable efforts to assist [Luke]." The judge pointed to the Division's provision of services to Luke tailored to his needs, which were met with resistance and noncompliance from Luke. The judge also determined that the Division had sufficiently explored alternate placements.
Regarding the fourth prong, the trial judge began by noting that Darren had never lived with Luke due to Luke's "unwillingness or inability to create [a] stable home." Luke had "ongoing issues," including "drugs, incarceration, . . . and lack of stable housing," and had "not shown a persistent interest in participating in the wide range of services . . . that the Division ha[d] offered to him." In particular, the judge was "concerned" by Luke's "failure to consistently visit with [Darren] and . . . to participate in a bonding evaluation," the latter of which "would have allowed th[e c]ourt to assess the strength of the relationship between [Luke] and [Darren]."
Based on Singer's bonding evaluation, the trial judge found that Darren and Valerie had "formed the foundation for a[n] . . . attachment" and that Valerie was Darren's "central parental figure." He noted Singer's conclusion that Darren "could suffer enduring harm," "regress [] emotionally and behaviorally," and have difficulty forming meaningful attachments later in life" if separated from Valerie. The judge also pointed out that, in his statement at the trial, Luke had "concede[d] that he [wa]s unable to parent [Darren] at th[e] time [of trial]" and would not be able to do so in the near future.
On November 21, 2013, the judge entered an order terminating Luke's parental rights and awarding the Division guardianship of Darren. This appeal followed.
II.
Luke raises the following issues on appeal:
POINT I
THE JUDGMENT OF GUARDIANSHIP SHOULD BE REVERSED BECAUSE THE DIVISION'S EVIDENCE WAS NOT COMPELLING ENOUGH TO JUSTIFY TERMINATION OF PARENTAL RIGHTS UNDER THE CONTROLLING "BEST INTERESTS" TEST.
(A) THE TRIAL COURT ERRED IN FINDING THAT [LUKE] SO HARMED [DARREN] AND WAS SO UNWILLING OR UNABLE TO ELIMINATE THAT HARM, AND THAT THE DELAY IN PERMANENT PLACEMENT SO ADDED TO THE HARM, AS TO COMPEL TERMINATION OF HIS PARENTAL RIGHTS.
(B) THE TRIAL COURT ERRED IN FINDING THAT DCPP PROVED THE THIRD PRONG OF THE BEST INTERESTS TEST
BECAUSE DCPP WAS NOT COMMITTED TO THE SUCCESS OF ITS REUNIFICATION EFFORT.
(C) TERMINATION OF PARENTAL RIGHTS WILL DO MORE HARM THAN GOOD.
A.
The scope of our review of a Family Part judge's factual findings is limited. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Those findings may not be disturbed unless they are "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)); see also N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). "A reviewing court should uphold the factual findings undergirding the trial court's decision if they are supported by 'adequate, substantial and credible evidence' on the record." M.M., supra, 189 N.J. at 279 (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
As a general rule, we should also defer to the judge's credibility determinations. M.M., supra, 189 N.J. at 279. Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008); see also M.M., supra, 189 N.J. at 293. In New Jersey Division of Youth & Family Services v. M.C. III, 201 N.J. 328, 343 (2010) (alteration in original), the Supreme Court reiterated the standard first used in Cesare v. Cesare, 154 N.J. 394, 413 (1998), recognizing that "'[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding.'"
We have held that, "'where the focus of the dispute is . . . alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' the traditional scope of review is expanded." J.T., supra, 269 N.J. Super. at 188-89 (quoting C.B. Snyder Realty, Inc. v. BMW of N. Am., Inc., 233 N.J. Super. 65, 69 (App. Div.), certif. denied, 117 N.J. 165 (1989)); see also N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). Deference is appropriate even in that circumstance "unless the trial court's findings 'went so wide of the mark that a mistake must have been made.'" M.M., supra, 189 N.J. at 279 (quoting C.B. Snyder Realty, Inc., supra, 233 N.J. Super. at 69).
Nevertheless, the trial judge's legal conclusions, and the application of those conclusions to the facts, are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We need not defer to the trial court's legal conclusions reached from the established facts. See State v. Brown, 118 N.J. 595, 604 (1990). "If the trial court acts under a misconception of the applicable law," we need not defer to its ruling. Ibid.
"[P]arents have a constitutionally-protected" right to enjoy a relationship with their children. N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 166 (2010); see also E.P., supra, 196 N.J. at 102; In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999). Strict standards have consistently been imposed in the termination of parental rights. K.H.O., supra, 161 N.J. at 347. 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 interest of the child." N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 546, 557 (1994). The burden of proof is on the Division to establish its case by clear and convincing evidence. Ibid.; see also P.P., supra, 180 N.J. at 511 ("On appeal, a reviewing court must determine whether a trial court's decision in respect of termination of parental rights was based on clear and convincing evidence supported by the record before the court.").
The Supreme Court first articulated the best interests standard in New Jersey Division of Youth & Family Services v. A.W., 103 N.J. 591, 602-11 (1986). The Legislature subsequently amended Title Thirty in 1991 to conform with the Court's holding in A.W., codifying the standard at N.J.S.A. 30:4C-15.1(a). See L. 1991, c. 275, § 7. The statute provides that the Division must prove:
(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).]
These four factors 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).
Under the fourth prong, the one most at issue in this case, the question to be addressed is "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 his 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, 263-64 (App. Div. 2005); see also In re Guardianship of 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).
B.
Luke argues that the trial judge erred in finding that the Division had met its burden to prove, by clear and convincing evidence, (1) he caused harm to Darren, (2) he was unwilling or unable to eliminate the harm, and (3) delay in achieving permanency exacerbated the harm so that termination of his parental rights was warranted. He also contends that the Division failed to demonstrate that it made realistic efforts to provide services because it was not committed to reunification and that it failed to demonstrate that termination of parental rights would not cause more harm than good.
Having reviewed Luke's contentions in light of the record and applicable law, we find them to be without sufficient merit to warrant an extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Consequently, we affirm essentially for the reasons set forth by Judge Craig R. Harris in his comprehensive and thoughtful November 18, 2013 oral decision. We add only the following.
The record is clear that Luke has never been able to parent Darren and is unlikely to be able to do so in the foreseeable future. Although Luke expressed a desire to do so and the Division provided him with services to that end, the record is also clear that he was unable or unwilling to remediate his inability to parent, as reflected in Singer's second report and trial testimony. As Luke himself told the judge at the trial, "[a]s far as my son goes, I do want to take care of him. I understand at the moment I'm not, I can't do it at the moment." We find it particularly significant that Luke refused to participate in drug assessments, failed to attend a bonding evaluation, and had stopped seeing Darren by the time of the trial.
The Supreme Court has held that "[a] child's need for permanency is an important consideration." M.M., supra, 189 N.J. at 281.
When a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and when the child has bonded with foster parents who have provided a nurturing and safe home, in those circumstances termination of parental rights likely will not do more harm than good.In this case, Singer's reports and testimony, based on two evaluations of Luke and a bonding evaluation of Darren and Valerie, clearly established that termination of parental rights would not do more harm than good.
[E.P., supra, 196 N.J. at 108.]
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION