Opinion
DOCKET NO. A-3038-15T2
12-22-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.L.E., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.L.C., A Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Eric J. Meehan, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton-Schaffer, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian for minor K.L.C. (Tracye Wilson Elliot, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-50-15. Joseph E. Krakora, Public Defender, attorney for appellant (Eric J. Meehan, Designated Counsel, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent (Melissa Dutton-Schaffer, Assistant Attorney General, of counsel; Mary A. Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian for minor K.L.C. (Tracye Wilson Elliot, Designated Counsel, on the brief). PER CURIAM
When the State seeks to terminate parental rights, the Division of Child Protection and Permanency (the Division) must prove by clear and convincing evidence each of the following:
(1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship;Following the guardianship trial in this case, the Family Part terminated defendant M.L.E.'s parental rights to her daughter, K.L.C. (Karen), who was born in May 2005 and was nearly eleven-years old at the time of trial.
(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 [D]ivision 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); see also In re Guardianship of K.H.O., 161 N.J. 337, 347-48 (1999).]
We use initials and pseudonyms to maintain the confidentiality of those involved. The order also terminated the parental rights of Karen's father, R.C., who has not appealed.
Before us, defendant argues the Division failed to prove all four prongs of the statutory test. In particular, as to prong three, defendant contends the Division and the trial judge failed to consider kinship legal guardianship (KLG) as an alternative to termination. As to prong four, defendant argues the evidence was insufficient, in particular because Karen was in a residential facility at the time of trial, receiving treatment for behavioral problems, and the possibility of her adoption was uncertain. Although the Division contends the evidence was sufficient and urges us to affirm the judgment, Karen's Law Guardian echoes defendant's arguments and urges us to reverse.
The principles guiding our review are well-known. "The focus of a termination-of-parental-rights hearing is the best interests of the child." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). The four standards contained in N.J.S.A. 30:4C-15.1(a) require a fact-sensitive analysis, and "are neither discrete nor separate. They overlap to provide a composite picture of what may be necessary to advance the best interests of the children." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 258 (App. Div. 2005) (emphasis in the original)).
"We will not disturb the family court's decision to terminate parental rights when there is substantial credible evidence in the record to support the court's findings." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). We defer to the factual findings of the trial judge, who had "the opportunity to make first-hand credibility judgments about the witnesses . . . [and] has a 'feel of the case' that can never be realized by a review of the cold record." Ibid. (quoting M.M., supra, 189 N.J. at 293). Moreover, because of "the family courts' special jurisdiction and expertise in family matters," we accord even greater deference to the judge's fact finding. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010) (citing Cesare v. Cesare, 154 N.J. 394, 413 (1998)). "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." E.P., supra, 196 N.J. at 104 (quoting N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007)).
"[W]here 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." M.M., supra, 189 N.J. at 279 (internal quotation marks and citations omitted). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552-53 (2014) (quoting Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
I.
In November 2013, the Division filed a verified complaint for care, custody and supervision of Karen. This followed a series of referrals to the Division and the verification of substance abuse by defendant and her live-in partner, J.S., domestic violence between them, unkempt conditions in the home and Karen's increasing behavioral problems. Although the court initially permitted defendant's continued physical custody of her daughter, in August 2014, Karen was placed with her maternal grandparents. In March 2015, the court approved the Division's permanency plan for termination followed by adoption, and the guardianship complaint was filed in April 2015.
At trial, the Division presented the expert testimony of a psychologist, Dr. James L. Loving, and the family's caseworker, Linda Zappelli. The trial judge found Dr. Loving's testimony to be "forthright, reasonable, . . . balanced" and credible, and the judge gave "great weight to his testimony." The judge also determined Zappelli was a "credible witness and . . . credit[ed] all of her testimony."
We need not recite at length the Division's history with the family, much of which is set forth in the judge's comprehensive and thoughtful thirty-nine-page written opinion. It suffices to say that the judge made factual findings from a well-documented account of defendant's substance abuse, her failure to attend and complete services provided by the Division and her transient, unstable living arrangements.
The judge also detailed the problems defendant's behavior caused for Karen, starting with referrals to the Division that began in 2006, when the child was only eighteen months old. These referrals documented physical abuse at the hand of J.S., exposure to defendant's and J.S.'s drug abuse and the child's developing behavioral problems of ever-increasing magnitude. Defendant on occasion neglected the child's basic hygienic needs and failed to take her to counseling sessions arranged through the Division.
The judge also found that defendant's behavior after the Division's complaint was initially filed in 2013 had not significantly improved. She continued to test positive for the use of illegal substances, appeared at supervised visitation under the influence, failed to attend substance abuse counseling and was terminated from domestic violence counseling due to sporadic attendance.
Considering prong one of the statutory test, the judge found the Division had met its burden. He concluded
the inability of [defendant] to serve as a full-time care giver, the inability of [defendant] to comply with offered services to allow an adequate assessment of risk, and the grave concerns about her ability to provide safe and effective parenting from an emotional standpoint establish a real and substantial harm to [Karen]. Further, Dr. Loving opined that [defendant] cannot be seen as a candidate for safe, healthy re-unification, either now or in the foreseeable future.As to prong two, the judge found that "[defendant's] unwillingness to eliminate the harm is clearly evident through her lack of effort to complete the numerous, varied and extensive services offered by the Division."
As to prong one and prong two, we agree that the Division met its burden of proof substantially for the reasons expressed by the judge, which find support in the substantial credible evidence in the record. The arguments raised by defendant and the Law Guardian to the contrary lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
II.
The contentions raised regarding the sufficiency of the Division's proofs as to the third and fourth prongs require some further discussion.
A.
In June 2015, Karen was still residing with her maternal grandparents. However, that month, her grandmother asked the Division to remove the child from the home because she was "out of control." Karen ran away from home on more than one occasion and was admitted to a hospital emergency room crisis unit on June 22, 2015, after exhibiting aggressive behavior toward the police officers who found her. The Division placed Karen in a therapeutic home operated by Community Treatment Solutions.
Her behavior continued to spiral out of control, and given the grandparents' unwillingness to have Karen return, in July 2015, the Division changed its goal from relative adoption to select home adoption. After another violent episode, the Division determined Karen needed treatment in a residential facility. Karen was placed at the Legacy Treatment Services residential program (Legacy) in June 2015, but she continued to exhibit violent behavior, with documented episodes in October and November 2015, and February 2016. Karen continued to reside in the program at the time of trial.
Zappelli testified that Karen had been diagnosed with oppositional defiant disorder, suffered from anxiety and depression and was taking psychotropic medication. The Division's plan was for Karen's adoption by her maternal grandparents, who told Zappelli "[t]hey want[ed] nothing more than to adopt her. They want[ed] her to be stabilized so she [could] come home." Alternatively, Zappelli testified the Division would pursue select home adoption, but it had not begun the process.
On cross-examination, Zappelli stated that Karen wanted to live with defendant or her grandparents, but conceded that the Division could not be "100 percent" certain it would find an adoptive home for Karen if her grandparents chose not to adopt her. Zappelli also stated that Karen was reluctant to leave her mother at the end of their supervised visits. She did not know how often Karen's grandparents visited her at Legacy because the Division was not involved, but Zappelli acknowledged that during the two or three months Karen was in the therapeutic foster home prior to placement, the grandparents only visited her two or three times.
Dr. Loving testified extensively about his psychological evaluation of defendant, but we focus on his testimony regarding the bonding evaluations he conducted with defendant and Karen and Karen and her grandparents. Because Karen has severe emotional and behavioral issues, Dr. Loving believed she would present challenges to any caregiver, especially defendant. He acknowledged Karen's strong attachment to defendant and noted their "largely positive" interactions.
Karen also shared a positive attachment to her grandparents and was "more well-mannered" in their presence. Dr. Loving testified that they remained committed to adopting her, but we note that Dr. Loving's evaluation took place in August 2015, more than eight months before trial. Karen "expressed a clear preference for returning home with her [mother]," or to return to her grandparents "as a secondary plan." He opined that Karen was "at a high risk emotionally regardless of the outcome at this point," and would "remain at high risk for . . . long term difficulties."
Dr. Loving stated that "terminating parental rights increase[d] [Karen's] already high risk for long term problems," but her best chance for "overcoming her emotional and behavioral difficulties" would be adoption by her grandparents. Dr. Loving believed that select home adoption, which might take a longer time than usual given Karen's behavioral problems, was a "realistic" option and presented a "better prognosis than reunification" with defendant. The doctor acknowledged on cross-examination it was "unclear how long it [would] take for [Karen] to be placed in a permanent home."
In addressing prong three, the judge found the Division undertook reasonable efforts to assist defendant and offered "extensive services," which he detailed in the opinion. As to prong four, the judge acknowledged the decision was not easy, but he concluded "only harm will come from a continued relationship between [defendant] and [Karen]." The judge cited extensively to Dr. Loving's bonding report, and noted Karen's "high risk for long term emotional difficulties no matter what legal outcome she faces."
The judge credited Dr. Loving's opinion that defendant could not provide a safe and stable home in the foreseeable future, and severing ties between Karen and defendant "would increase her risk for emotional harm," but the judge concluded Karen's "best chance . . . for enjoying emotional health . . . is termination of [defendant's] parental rights and adoption." The judge concluded Karen would benefit "from returning to her grandparents' care as soon as her treatment team feels she is ready for step-down and then to proceed to adoption. . . . [I]f for whatever reason her grandparents cannot adopt, [Karen] would still benefit from adoption."
B.
N.J.S.A. 30:4C-15.1(a)(3) requires the Division to make "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 to "consider[] alternatives to termination of parental rights." Services under the third prong "contemplate[] efforts that focus on reunification . . . ." K.H.O., supra, 161 N.J. at 354. "Experience tells us that even [the Division's] best efforts may not be sufficient to salvage a parental relationship." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 452 (2012). Moreover, "[e]ven if the Division ha[s] been deficient in the services offered to" a parent, reversal is not necessarily "warranted, because the best interests of the child controls" the ultimate determination regarding termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 621 (App. Div.), certif. denied, 192 N.J. 68 (2007).
Neither defendant nor Karen's Law Guardian specifically contend the Division failed to provide adequate services. We agree with the trial judge that in this regard the Division's proof was clear and convincing.
However, defendant and the Law Guardian argue the Division failed to consider KLG as an alternative to adoption. The Division counters by arguing KLG is only appropriate "when adoption 'is neither feasible nor likely' and 'kinship legal guardianship is in the child's best interest.'" N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512 (2004). It contends the evidence demonstrated adoption was both feasible and likely. The issue was never raised before the trial judge, and therefore he did not address it in his written opinion.
"As part of the analysis of the third prong, the court is required to consider alternatives to the termination of parental rights." N.J. Div. of Youth & Family Servs. v. H.R., 431 N.J. Super. 212, 226 (App. Div. 2013). "When a child is removed from the parents' home, [the Division] must assess whether relatives of the child can provide care and a home." Ibid. However, even if the Division fails to consider relatives, "[d]elay of permanency or reversal of termination based on the Division's noncompliance with its statutory obligations is warranted only when it is in the best interests of the child." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 581 (App. Div. 2011).
Before considering the arguments regarding KLG, as we did in H.R., supra, 431 N.J. Super. at 226, "we skip ahead to the fourth subpart of the statute, that termination of parental rights will not do more harm than good." The fourth prong mandates a determination as to "whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. Prong four "serves as a fail-safe against termination even where the remaining standards have been met." G.L., supra, 191 N.J. at 609.
In most circumstances, the court must examine the child's bond with both biological and foster parents. K.H.O., supra, 161 N.J. at 355. "[A]fter considering and balancing the two relationships," the question becomes will "the child . . . 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[?]" Id. at 355. Answering that question "necessarily requires expert inquiry specifically directed to the strength of each relationship." Ibid. (quoting J.C., supra, 129 N.J. at 25). Moreover, and particularly applicable here, "courts have recognized that terminating parental rights without any compensating benefit, such as adoption, may do great harm to a child." E.P., supra, 196 N.J. at 109 (citing N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 610-11 (1986)).
We might refuse to consider defendant's and the Law Guardian's arguments regarding prong three because KLG was not raised as an option before the trial judge. See, e.g., N.J. Div. of Youth & Family Servs. v. H.B., 375 N.J. Super. 148, 186 (App. Div. 2005) (refusing to consider an issue raised for the first time on appeal) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). In this case, however, resolution of arguments regarding KLG directly impacts our determination as to whether the Division satisfied its burden of proof on prong four.
We begin by acknowledging the Division's contention that KLG "is only a viable option when adoption is not feasible or likely." H.R., supra, 431 N.J. Super. at 230 (citing P.P., supra, 180 N.J. at 509). Clearly, "[w]hen a caretaker 'unequivocally' asserts a desire to adopt, the statutory requirement that adoption is neither feasible nor likely is not satisfied." Id. at 230-31 (quoting N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011)).
However, in this case, Karen's grandparents never "unequivocally" asserted their intention to adopt her. In fact, the undisputed testimony established they were willing to do so if Karen was "stabilized" before returning to their care. Moreover, there was evidence implicitly reflecting an intention not to adopt Karen if her manifest behavioral illness was not mitigated. This included the grandparents' request that the Division remove Karen from their home less than one year before trial, and their limited visitation with Karen after she left and was placed in a therapeutic home. Furthermore, there was no evidence adduced at trial that the grandparents were ever advised of KLG as an option, or that the Division considered it when it changed its plan for Karen from relative adoption to select home adoption nearly one year before trial.
We note that neither grandparent testified at trial. Zappelli stated that she did not know if the grandparents visited Karen while she was at Legacy. Her last conversation with the grandparents regarding adoption was a few weeks before trial. Dr. Loving only referenced the grandparents' desire to adopt Karen in the context of his bonding evaluation conducted months earlier.
These concerns segue into our consideration of the prong four evidence. Dr. Loving unequivocally opined that Karen and defendant shared a strong, positive bond, but he also opined that Karen should not be reunited with defendant. Dr. Loving also expressed the firm opinion that adoption by Karen's grandparents presented the best chance to minimize the risk posed by termination of defendant's parental rights and the pre-existing risk posed by Karen's behavioral illness. Select home adoption was clearly the second best choice in Dr. Loving's opinion.
However, Dr. Loving was not asked about the likelihood of Karen being "stabilized," a condition precedent in her grandparents' minds before she could be returned to their home and any future adoption. Nor was there any significant testimony about Karen's treatment since she was removed from her grandparents' home, and whether she had progressed in any significant way while in a therapeutic setting for nearly one year. Dr. Loving opined in broad terms that select home adoption was "realistic," but he could give no timeframe and acknowledged that, in Karen's case, the process might be expected to "take longer." Moreover, the record contains no evidence that the Division had actually commenced the process of trying to find an appropriate home that would adopt Karen, even though it had changed its plan to select home adoption nearly one year earlier. As a result, at least for the moment, "[t]he termination of [defendant's] parental rights does not appear to have any real compensating benefit . . . ." E.P., supra, 196 N.J. at 109.
The order terminating defendant's parental rights was entered on March 11, 2016, and we have no idea what has transpired, most particularly, regarding Karen's treatment and behavioral problems in the interim. We also have no knowledge of the likelihood of her adoption, either by her grandparents or a select home, as a result.
Furthermore, we recognize that KLG "may be suited to circumstances where the biological parent may yet become fit to care for the child and the caretaking parent is willing to abide that time while taking full responsibility for care of the child." H.R., supra, 431 N.J. Super. at 229 (emphasis added). While at the time of trial, defendant had been regularly attending counseling for her own mental health issues and had moved into allegedly more stable housing, we certainly cannot conclude these facts compel a conclusion contrary to Dr. Loving's, i.e., defendant is unlikely to become a capable parent in the foreseeable future.
However, based on the record before us, we are constrained to reverse the termination order and remand the matter to the trial court for further proceedings. Because we have concluded the Division's proofs as to prong one and two were sufficient, the remand hearing need not address those issues again. Instead, the remand should focus on the current state of Karen's mental health, how that impacts the likelihood of her adoption, either by her grandparents or a select home, and whether KLG is a viable option instead.
We hasten to add that our opinion is not intended as a criticism in any way of the trial judge's efforts, which were thorough and thoughtful. We recognize, as he did, that the decision in this case is exquisitely difficult.
Reversed and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION