Opinion
DOCKET NO. A-1594-14T2
10-16-2015
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. L.S., Defendant-Appellant, and G.B., Defendant. IN THE MATTER OF THE GUARDIANSHIP OF Z.A.S., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (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; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Z.A.S. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Nugent. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-108-14. Joseph E. Krakora, Public Defender, attorney for appellant (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; Monisha A. Kumar, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor Z.A.S. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant appeals from a November 10, 2014 order terminating her parental rights to her son, Z.A.S. Defendant, who did not appear at the guardianship trial, argues that the Division of Child Protection and Permanency (the Division) failed to produce sufficient evidence to prove prong three of the best interests of the child test, N.J.S.A. 30:4C-15.1a(3), and that the judge abdicated decision-making responsibility to the child's therapist. We disagree and affirm.
In July 2014, the child's father voluntarily surrendered his parental rights and is not part of this appeal. The Division also terminated defendant's parental rights to two other children, who are also not part of this appeal.
Defendant is a cognitively-impaired individual with an inability to effectively parent her child, who is now nine years old. Defendant's history with the Division dates back to July 2008, when she requested temporary placement for the child, purportedly due to financial reasons. The Division closed its file, however, when defendant rescinded her request two days later.
In June 2009, the Division received a referral related to the child's hospitalization. The Division learned that the child had been complaining of head pain, was difficult to control, and had unexplained scratches and abrasions on his body. At this point, the Division undertook supervision of the child, and later had defendant examined by a psychologist.
In November 2009, defendant reported to the Division that she had been the victim of domestic violence, which the Division learned had been an ongoing problem. Almost three months later, the Division received a report that defendant left the child, unsupervised, with her boyfriend, who had committed acts of domestic violence and threatened the child.
The Division then substantiated the allegations of neglect and performed an emergency Dodd removal. In February 2010, the Division obtained care, custody, and control over the child and referred defendant for substance abuse treatment, domestic violence counseling, parenting skills training, and individual counseling. By April 2010, defendant had been terminated from these services for non-compliance.
A "Dodd" removal allows the Division to remove a child from the home, before a preliminary hearing, where the Division finds an imminent risk of harm to the child. N.J.S.A. 9:6-8.28a.
In June 2010, the judge conducted a fact-finding hearing and determined that defendant abused and neglected the child by permitting her boyfriend to supervise him, despite defendant's reports to the police that the boyfriend had previously threatened the child. The Division continued providing services to defendant to achieve reunification, such as support when defendant enrolled in the Newark Renaissance House Mommy and Me Program, additional psychological evaluations, substance abuse treatment, individual and group therapy, life skills training, sex education, parenting skills training, supervised visitation, psychiatric evaluations, and therapy for the child.
In July 2011, the court approved a permanency plan of termination of parental rights followed by adoption. The Division continued making referrals for updated psychological evaluations, substance abuse evaluations, therapeutic visitation, and mental health treatment. And the court ordered defendant to undergo an updated psychiatric evaluation and Certified Alcohol and Drug Counselor assessment. Defendant's availability to the Division became increasingly inconsistent due to her temporary relocation to another state without leaving any contact information.
The Division at one point switched the plan to reunification of the child with G.B., the father, but that plan failed.
In October 2013, the court ordered the Division to obtain from the child's therapist an opinion as to whether visitation between defendant and the child would be in his best interest. By this time, defendant had not seen the child for approximately one and one-half years. The therapist opined that visitation with the child would not be in his best interest. The court also ordered defendant to undergo a psychological evaluation with Dr. Eric Kirschner, who independently agreed with the therapist that visitation would be contraindicated.
The judge conducted the guardianship trial in November 2014. He took testimony from Dr. Kirschner and a Division caseworker. The judge issued an oral opinion, terminated defendant's parental rights, and issued the order under review.
We reject defendant's contention that the Division failed to produce sufficient proofs as to N.J.S.A. 30:4C-15.1a(3), which requires, in pertinent part, the Division to prove by clear and convincing evidence that it "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." The third prong requires that the Division "undertake diligent efforts to reunite the family." In re Guardianship of K.H.O., 161 N.J. 337, 354 (1999). According to the statute,
"reasonable efforts" mean attempts by an agency authorized by the division to assistWhether the Division undertook diligent efforts to reunite the parent with the child is a fact-sensitive, individualized inquiry. In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999).
the parents in remedying the circumstances and conditions that led to the placement of the child and in reinforcing the family structure, including, but not limited to:
(1) consultation and cooperation with the parent in developing a plan for appropriate services;
(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-15.1c(1)-(4).]
Our standard of review is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Because a trial judge's findings "are considered binding on appeal when supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), this court only disturbs factual findings when they are so manifestly unsupported by or inconsistent with competent, relevant, and reasonably credible evidence as to offend the interests of justice. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998).
The judge's finding, that the Division met its burden as to prong three, is supported by substantial credible evidence in the record. The Division referred defendant to substance abuse treatment, parenting skills training, individual counseling, domestic violence counseling, individual and group therapy, life skills training, drug education, anger management classes, conflict resolution classes, sex education, numerous psychological and psychiatric evaluations, supervised visitation, and mental health treatment. The Division also provided services to the child, including providing the child with a therapist, transporting the child for visits, arranging foster home placements, and ultimately arranging a permanent adoptive home.
After careful consideration of the record, we are satisfied defendant's remaining argument, that the judge abdicated his decision-making responsibility to the child's therapist, lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief remarks.
Defendant correctly states a judge may not wholly abdicate decision-making responsibility to experts. See Capell v. Capell, 358 N.J. Super. 107, 108 (App. Div.), certif. denied, 177 N.J. 220 (2003) (finding that a judge may not "abdicate his decision-making responsibility and adjudicate the matter solely based on the results of a test administered by . . . [an] expert"). We conclude, however, that there was no such abdication by the judge.
The judge was faced with a decision about whether to continue visitation between defendant and the child. He considered the opinion of the child's therapist as well as Dr. Kirschner's conclusion that further contact between defendant and the child was "not clinically indicated." The judge used the expert opinions to inform his own decision on the visitation issues. The judge did not leave the question of what was in the child's best interests in the sole hands of the therapist or any other expert. In addition, unlike in P.T. v. M.S., 325 N.J. Super. 193 (App. Div. 1999), where a trial court delegated decision-making power for custody to a psychologist, here, the judge merely sought recommendations to aid his decision.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION