Opinion
DOCKET NO. A-0254-13T1
05-13-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.H., Defendant-Appellant, T.B. and CM., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF Z.B. and Z.H., MINORS.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Neely Milligan, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ostrer and Carroll.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-68-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter Neely Milligan, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
Defendant L.H. appeals from an August 14, 2013 Family Part order terminating her parental rights to her two children, Z.B. and Z.H., who were born in May 2003 and August 2011, respectively. We affirm.
A three-day trial was held in June 2013, at which defendant failed to appear or offer any evidence. The Division of Child Protection and Permanency (Division) presented the testimony of the permanency caseworker, Andre Reeves, the adoption caseworker, Cristina Keresztes, and expert psychologist Frank J. Dyer, Ph.D. Following the close of evidence, Judge John A. Conte entered an order terminating defendant's parental rights and awarding guardianship of the children to the Division. In a comprehensive seventy-nine page written opinion, Judge Conte found that the Division satisfied all four prongs of the statutory "best interests" test, N.J.S.A. 30:4C-15.1(a).
The facts and procedural history are set forth at length in Judge Conte's opinion and need not be repeated here in the same level of detail. To summarize, L.H. has an extensive history of mental health issues. She was diagnosed with schizophrenia, suffered from paranoid behavior, and was hospitalized numerous times due to her psychiatric issues and for failure to adhere to her medication regimen.
The Division initially became involved with L.H. in December 2007. Although her case was thereafter intermittently closed, the Division has continuously maintained an open case since August 30, 2010, after L.H. was admitted to Bergen Regional Medical Center (BRMC) to address her psychiatric issues. In September 2011, shortly following Z.H.'s birth, the Division received another referral, again expressing concerns about L.H.'s mental health. An inspection of her residence revealed it to be unkempt, and there was only minimal food in the refrigerator. L.H., who was observed to be acting erratically, forcefully put Z.H. in a stroller, and ran across the street without looking while pushing her newborn child in the stroller. Consequently, the Division conducted an emergency removal of the children, who were placed in foster care. L.H. was thereafter again psychiatrically hospitalized at BRMC.
Upon her discharge from the hospital in November 2011, the Division recommended that defendant attend an acute partial care program to address her mental health issues. However, despite the Division's efforts, L.H. did not consistently attend any of the recommended programs. The Division also attempted to provide L.H. with an array of other services. It provided her with an Integrated Case Management Services (ICMS) worker, bus passes for transportation, therapeutic visitation assistance, and set up psychological evaluations. Notwithstanding the Division's efforts, at the time of trial it had substantial concerns about defendant's ability to safely parent both children. L.H. was unemployed, lacked appropriate housing for the children, was inconsistent with her psychiatric medication, and was unwilling or unable to complete a partial hospitalization program.
After L.H. twice failed to keep appointments set up by the Division, shortly before trial she finally appeared for an evaluation by Dr. Dyer. Although L.H. engaged in a bonding evaluation, she refused to participate in the individual psychological evaluation. During the bonding evaluation, Dr. Dyer observed that defendant's behavior was "grossly inappropriate." This behavior, Dr. Dyer concluded, "was entirely consistent with [L.H.'s] documented history, with severe psychiatric problems, primarily involving paranoia and depression [that resulted] in between [fifteen] and [twenty] psychiatric hospitalizations." Dr. Dyer opined that L.H. would pose a risk of actual harm to the children if they were returned to her.
By the time of trial, both children had been in foster care since September 2011, and in their current foster home since December 2011. Dr. Dyer conducted a bonding evaluation involving the children and the foster mother, who had expressed a commitment to adopt them. Dr. Dyer noted that Z.H. was "profoundly attached" to her foster mother, who was essentially the only caregiver the child had ever known. If that relationship was severed, then Z.H. would "be in a state of turmoil, emotionally." Dr. Dyer further explained that as Z.H. approached two years of age, a delay in finalizing the permanency plan would be more apt to cause her harm.
With respect to Z.B., Dr. Dyer testified that she too had formed an attachment with her foster mother, along with a "high degree of trust" in her. While Z.B. would likely feel some degree of guilt if defendant's parental rights to her were terminated, the foster mother had the ability to mitigate any harm Z.B. might thus experience. In Dr. Dyer's opinion, "overall, [Z.B.] would not suffer a traumatic loss, her adjustment would not be negatively affected, [and] the opportunities created by permanency with a loving, stable, mature, nurturing caretaker, who could continue to address the child's needs would, by far, outweigh anything negative associated with a severing of [Z.B.'s] relationship with [L.H]."
As noted, at the conclusion of the trial Judge Conte rendered a thorough seventy-nine page written opinion in which he outlined his findings regarding all four prongs of the statutory test and expressed his conclusion that L.H.'s parental rights to the two children should be terminated.
Z.B.'s father, T.B., appeared during the trial court proceedings and voluntarily relinquished his parental rights. The court also terminated the parental rights of Z.H.'s father, C.M., but he is not a party to this appeal.
To satisfy the first statutory element of the best-interests standard, the Division must show that the safety, health or development of the child has been or will continue to be harmed by the parental relationship. N.J.S.A. 30:4C-15.1(a)(1). Judge Conte determined that the Division satisfied this prong by clear and convincing evidence establishing that L.H. is "unable to care for her children due to her mental condition, her inability to consistently take her medication, her poor money management and lack of a job, and her failure to provide food, clothing and medical checkups." The judge accepted Dr. Dyer's conclusion that L.H. "is much too impaired psychologically to be entrusted with the care of a young child," and "does not possess [adequate] parental fitness."
The second statutory element of the best-interests standard is that the parent is unwilling or unable to eliminate the harm facing the child, or is unable and unwilling to provide a safe and stable home for the child and delay of permanent placement will add to the harm. N.J.S.A. 30:4C-15.1(a)(2); accord In re Guardianship of K.H.O., 161 N.J. 337, 352 (1999). It is aimed at "determining whether the parent has cured and overcome the initial harm that endangered the health, safety, or welfare of the child, and is able to continue a parental relationship without recurrent harm to the child." Id. at 348. The second prong "relate[s] to and overlap[s]" with the first prong to create "a comprehensive standard that identifies the child's best interests." Ibid. Again, citing Dr. Dyer's findings, and L.H.'s refusal to participate in the psychological evaluation, the judge found that "the two children have never lived in their mother's company without the threat of harm," and that "the evidence could not be more clear and convincing that the mother has been unable to eliminate harm to both children."
The third statutory element of the best-interests standard requires the Division to undertake "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." N.J.S.A. 30:4C-15.1(a)(3). Judge Conte commented extensively on the services the Division provided L.H. to gauge and strengthen her abilities to parent her children. In addition to arranging several psychological evaluations, the judge noted the Division provided L.H. with therapeutic supervised visitation, supervised visitation, and attempts at various programs administered by multiple agencies. In short, Judge Conte found no likelihood of improvement in L.H.'s condition despite the Division's efforts to provide services, and no alternative to termination.
The fourth statutory prong requires the court to determine whether termination of parental rights will do more harm than good to the child. N.J.S.A. 30:4C-15.1(a)(4). This prong "serves as a fail-safe against termination even where the remaining standards have been met." Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). The ultimate determination to be made under the fourth prong is "whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [the] natural parents than from the permanent disruption of [the] relationship with [the] foster parents." K.H.O., supra, 161 N.J. at 355. Citing Dr. Dyer's unrebutted expert testimony, and the children's need for permanency and stability, the judge found that this prong was clearly satisfied.
Our review of the trial court's application of the statutory standards to the facts is limited. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). We "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." N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). We may not disturb the trial court's findings "unless they are so wholly unsupportable as to result in a denial of justice." Ibid. (quoting In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). Even where the appellant "allege[s] error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom," deference must be afforded unless the court "went so wide of the mark that a mistake must have been made." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (citations omitted).
On appeal, defendant first argues that the Division failed to prove prongs one, two, and three of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. We disagree, and affirm substantially for the reasons stated by Judge Conte in his thoughtful opinion. Substantial credible evidence justifies the judge's findings of fact and conclusions of law. We add the following brief comments to address defendant's remaining arguments on appeal.
Defendant argues that her trial counsel was ineffective in representing her, specifically by failing to procure an expert report or produce expert testimony at trial. To prove ineffective assistance of counsel, a defendant must satisfy the two-part test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
[Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
The test for ineffective assistance of counsel in a termination case is the same as in a criminal case. N.J. Div. of Youth & Family Servs. v. B.R., 192 N.J. 301, 308-09 (2007). When a defendant appeals from an adverse determination in a guardianship action, and alleges ineffective assistance of counsel as a ground for reversing the guardianship judgment, the defendant must:
provide a detailed exposition of how the trial lawyer fell short and a statement regarding why the result would have been different had the lawyer's performance not been deficient. That will include the requirement of an evidentiary proffer in appropriate cases. For example, if the failure to produce expert or lay witnesses is claimed, appellant will be required to supply certifications from such witnesses regarding the substance of the omitted evidence along with arguments regarding its relevance.In reviewing L.H.'s claim we must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Id. at 307 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695).
[Id. at 311.]
Guided by these standards, we find no merit in the argument that trial counsel was ineffective. Defendant appears to have been uncooperative, first failing to appear twice for evaluations with Dr. Dyer before ultimately refusing to undergo a psychological evaluation, and later failing to appear for trial. Further, nothing suggests that another psychologist would have rendered an opinion different from that of Dr. Dyer following his observations of L.H. during the bonding evaluation, especially given her lengthy psychiatric history and numerous psychiatric hospitalizations.
Defendant's remaining argument alleging that the trial court erred in allowing the Division to rely on Dr. Dyer's expert report that was produced shortly before trial is devoid of merit, not warranting extended discussion in this opinion. R. 2:11-3(e)(1)(E). The Division previously scheduled L.H.'s psychological evaluation with Dr. Dyer twice. Defendant failed to appear for her scheduled appointment with Dr. Dyer on April 23, 2013, and then again on May 1, 2013, even after the Division arranged for transportation. Having delayed the expert report by her own lack of cooperation, defendant cannot be heard to complain about its late production.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION