Opinion
DOCKET NO. A-5319-12T2 DOCKET NO. A-5320-12T2
06-13-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. M.M.C. and R.P., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF H.C. and J.C., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant M.M.C. (Janet A. Allegro, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant R.P. (Anna F. Patras, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mark E. Critchley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors H.C. and J.C. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Carroll.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FG-02-83-12.
Joseph E. Krakora, Public Defender, attorney for appellant M.M.C. (Janet A. Allegro, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant R.P. (Anna F. Patras, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Mark E. Critchley, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors H.C. and J.C. (Nancy P. Fratz, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant M.M.C. is the mother of H.C., born May 2007, and J.C., born April 2009. Defendant R.P. is the father of J.C. The identity of H.C.'s biological father is unknown. Defendants, who are not married and do not reside together, appeal from the Family Part's June 19, 2013 order terminating their respective parental rights to the children.
On these appeals, which we have consolidated, defendants contend that the Division of Child Protection and Permanency (Division) did not prove by clear and convincing evidence the four prongs of the best interests test, N.J.S.A. 30:4C-15.1(a). The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm.
Based on our review of the record and applicable law, we are satisfied that the evidence in favor of the guardianship petition adequately supports the termination of defendants' parental rights. Accordingly, we affirm.
I.
A two-day trial was held in March 2013, at which defendants appeared represented by counsel. The Division presented the testimony of permanency caseworker Aida Cando, adoption caseworker Josephine Rovetto, and expert psychologist Robert J. Miller, II, Ph.D. Defendants did not testify, call any witnesses, or offer any evidence. At the conclusion of the trial, Judge John A. Conte entered an order terminating defendants' parental rights and awarding guardianship of the children to the Division. In a comprehensive fifty-seven page written opinion, Judge Conte found that the Division satisfied all four prongs of the statutory best interests test.
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, on July 30, 2009, the Division received a referral that a search warrant had previously been executed at M.M.C.'s apartment. As a result, M.M.C. was arrested and charged with possession of marijuana, ecstasy, and drug paraphernalia, and endangering the welfare of her children, both of whom were present. She subsequently pled guilty to possession with intent to distribute marijuana and endangering the welfare of a child, and was sentenced to five years special probation, conditioned on successfully completing drug court and its attendant requirements.
In July 2010, M.M.C. entered the Mommy and Me substance abuse program at Eva's Village. Within a short time she threatened to leave the program. Consequently, the probation department issued a warrant for her arrest, and the Division executed a Dodd removal of the children. Originally they were placed in a non-relative foster home, but on February 18, 2011, they were placed in the care of a maternal great aunt, R.S. M.M.C. thereafter continued to violate the terms of her probationary sentence, as a result of which she received multiple sanctions, including periods of incarceration. Ultimately, on March 19, 2013, shortly after the conclusion of the guardianship trial, M.M.C. received a three-year prison sentence for violating probation. The judgment of conviction enumerated ten prior incarcerations, totaling 306 days, for which she received credit against her prison sentence.
An emergency removal of a child from his or her home without a court order, pursuant to the Dodd Act, N.J.S.A. 9:6-8.21 to -8.82
Aida Cando, the permanency caseworker, was assigned the case from July 15, 2011 until March 9, 2012. Originally, the Division's plan was reunification of the children with M.M.C. She had previously been referred to substance abuse programs at Eva's Village and John Brooks, before successfully completing an inpatient program at Spring House. M.M.C. was thereafter required by drug court and the Division to complete an aftercare program, which included attending a jail diversion program, the Addiction Recovery Program (ARP), and AA meetings. She was also required to undergo random urine screenings, and meet regularly with her psychiatrist for medication monitoring.
Cando testified that the Division assisted M.M.C. with housing, provided her bus passes, and referred her to parenting classes, which she completed. However, while M.M.C. appeared to maintain her sobriety, she failed to comply with the jail diversion program, did not consistently attend ARP or follow through with her psychiatrist, was fired from her job, and due to her attitude lost her sponsor at AA. Consequently, in February 2012, the Division changed the goal from reunification to termination of parental rights.
During the time that Cando was assigned to the family, R.P. never scheduled any visits with J.C., nor attended any court hearings. Because R.P. was then living in an apartment in Pennsylvania with his mother and brother, the Division initiated an interstate study, that concluded R.P. lacked the ability to sustain his child. R.P.'s mother, C.P., withdrew her application to serve as caretaker for J.C., and the Division accordingly ruled her out on February 15, 2012. At some point C.P. moved to New Jersey to care for her elderly parents, and did not again seek to be J.C.'s caretaker. Before Cando turned the case over to the adoption caseworker, R.P. self-reported that he had recently ceased his daily marijuana use. Accordingly, R.P. was referred for a substance abuse assessment with Preferred Children's Services, and a psychological evaluation with Dr. Miller.
R.P. argues, apparently for the first time on appeal, that the Division's reliance on the Interstate Compact on the Placement of Children (ICPC) to rule out R.P. and his mother C.P. was erroneous. We find no merit to this argument, since in addition to the interstate study, Division caseworkers personally visited R.P.'s Pennsylvania residence, and C.P. never again sought to serve as J.C.'s caretaker even after moving to New Jersey.
Josephine Rovetto, the adoption caseworker, testified that following R.P.'s substance abuse evaluation, the Division recommended he attend an outpatient program at Catholic Social Services. However, R.P. failed to attend both the individual counseling and the group sessions, and he was discharged from that program due to non-compliance on December 7, 2012.
Rovetto and a co-worker visited R.P.'s Pennsylvania apartment on January 8, 2013. Upon entering, they immediately detected the distinct odor of marijuana, which R.P. blamed on his brother. R.P. advised Rovetto that he was unemployed and not currently taking his medication. He became volatile, began cursing, and kicked the Division workers out of the apartment.
R.P. was still not visiting with J.C. According to Rovetto, the only time R.P. saw J.C. was when he attended his bonding evaluation with Dr. Miller.
Similarly, when Rovetto took over the case, M.M.C.'s visitation with the children was inconsistent, and ceased entirely after September 25, 2012. Rovetto testified that she was constantly attempting to reach M.M.C., and had no idea as to her whereabouts. Rovetto expressed concerns about M.M.C.'s unfinished substance abuse programs, her untreated psychiatric issues, and her lack of compliance with drug court, which had led to repeated incarcerations.
Unfortunately, H.C. exhibited severe behavioral issues, prompting the great aunt, R.S., to ask for his removal. H.C. was removed from R.S. on September 14, 2012, and placed in a Division-approved licensed home until September 28, 2012, when he was again removed after exhibiting the same behavioral issues. H.C. was placed in another Division-approved home until December 5, 2012, when he was relocated to a treatment home facility where, according to Rovetto, he has made "tremendous strides" and is doing "extremely well."
J.C. also exhibited similar behavioral issues, thus prompting R.S. to request her removal shortly before trial. H.C. has expressed a desire that he and J.C. remain together, and the Division's plan for both children is currently select home adoption.
The Division's expert, Dr. Miller, performed a psychological evaluation of M.M.C. on October 26, 2010. His assessment "revealed psychiatric problems, including bipolar disorder . . . . She had underlying personality problems [that negatively] impacted on her parental capacity, including anger problems [and] impulse control problems." She was unstable and unable to control her own behavior. Dr. Miller diagnosed her as suffering from severe anxiety disorder, and made recommendations designed to address her underlying emotional and behavioral problems.
M.M.C. later failed to attend several appointments for an updated psychological evaluation that were scheduled in October through December 2012. Dr. Miller noted that M.M.C. had also not made herself available for visitation with the children any time after September 25, 2012, which indicated her lack of commitment to parenting. In his January 13, 2013 report, Dr. Miller concluded, "[b]ased on her behavior as previously documented and her current presentation it is apparent [M.M.C.] has effectively abandoned [J.C. and H.C.]."
Dr. Miller conducted a bonding evaluation with M.M.C. and the children on September 10, 2012. He assessed the attachments of both children as "insecure," with H.C.'s characterized by avoidance of M.M.C. He explained that such insecure attachments are often harbingers for the children in later years to experience mental health problems, depression, anxiety, and a higher probability of criminal activity and educational failure.
With respect to R.P.'s bonding evaluation, Dr. Miller concluded that R.P. had no relationship or attachment with J.C., and that "his abandonment is a significant harm" to the child. Further, he observed R.P. to have anger issues and display symptoms of anxiety disorder. R.P. was unable to function independently, did not consistently engage in any recommended services, and was not in a position to care for J.C. in the foreseeable future.
Dr. Miller concluded that there would be a continual risk to the children's safety if they were placed in either parent's custody. Conversely, the children would not suffer significant harm if the parental relationship was severed.
As noted, at the conclusion of the trial Judge Conte rendered a thorough fifty-seven page written opinion in which he outlined his findings regarding all four prongs of the statutory test and expressed his conclusion that R.P.'s parental rights to J.C., and M.M.C.'s parental rights to both children, should be terminated.
Following a temporary remand, M.M.C., who was no longer incarcerated, filed a motion pursuant to Rule 4:50 to vacate the guardianship judgment. Judge Conte denied the motion on January 15, 2014. In an accompanying eleven-page written opinion, Judge Conte emphasized that the length of M.M.C.'s sentence, and her consequent inability to parent the children during that time, was irrelevant, as the result would have been the same even had she not been incarcerated, given the Division's "mountain of evidence" supporting termination.
II.
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).
As to M.M.C., Judge Conte determined that the Division satisfied this prong by clear and convincing evidence establishing that "the children's health and development will be endangered should the parental relationship be permitted to continue." To support this conclusion, the judge cited M.M.C.'s failure to complete substance abuse rehabilitation programs, attend visitation, or cooperate with psychological therapy. Judge Conte also noted M.M.C.'s criminal history and her failure to complete drug court, as a result of which she was then incarcerated. The judge accepted Dr. Miller's findings that M.M.C. exhibited a pattern of instability, could not control her behavior, and placed "her children's safety at risk and demonstrated lack of insight and poor parental judgment."
In finding that the evidence also satisfied the first prong as to R.P., Judge Conte noted Dr. Miller's diagnosis that R.P. suffers from a "personality disorder with antisocial tendencies." The doctor's unrebutted expert testimony established that R.P. "has insufficient understanding of child development, is demanding and controlling, [and] lacks nurturing skills . . . ." The judge concluded, "[t]he record is clear that [R.P.] is a virtual stranger to his daughter . . . . He has disregarded and abandoned [J.C.] to the care of others from her birth to the current date . . . . All of the Division efforts aimed at reunification and assistance of defendant to establish a parental relationship have been rebuffed by him."
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.
The judge found that "[t]he record is clear that [M.M.C.] is unwilling to eliminate the harm facing the children. She has been unable to provide a safe and stable home for her children." Dr. Miller's testing determined that M.M.C. displayed psychological symptoms, and the doctor concluded that if the children were returned to her, their safety would be compromised because nothing in her behavior indicated she was competent to parent the children.
Dr. Miller reached a similar conclusion as to R.P., whose functioning, the doctor found, "is characterized by poor impulse control, [] anger, impressionistic thinking, lack of empathy, externalization of responsibility and manipulation of others." Judge Conte concluded that the "abundance of evidence presented by the Division" established that R.P. "could not provide a safe and stable home. He is a virtual stranger to the child and has not developed a parental relationship with her."
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 "more than ample steps" taken by the Division to foster the reunification of M.M.C. with her children. He noted:
[The Division] has attempted to assist M.M.C. with obtaining psychological evaluations and treatment, psychiatric evaluations, psycho-therapeutic services, and substance abuse evaluations and treatment, medication monitoring, parenting skills training and supervised visitation. However, [M.M.C.] has been out of contact with the Division for many months and has made no efforts to contact her children. [Dr.] Miller testified "She participated in bonding observation but did not complete psychological evaluation. Based on her behavior as previously documented and her current presentation it is apparent [M.M.C.] has effectively abandoned [the children]."
The judge similarly found that the Division took ample steps to assist R.P. with obtaining psychological evaluations and treatment, substance abuse evaluations and treatment at Catholic Social Services, substance abuse referrals from Preferred Children's Services, drug screens, home studies for placement, and supervised visitation at Care Plus. However, R.P. did not comply with the Division's recommendations, failed to appear at most of his court hearings, and "turned his back on his daughter and rebuffed the efforts of the Division to reunite him with [J.C.]." With respect to both defendants, the judge found 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 the unrebutted expert evidence, and the children's need for permanency and stability, the judge found that this prong was clearly satisfied. M.M.C. had only an "insecure attachment" to the children, and R.P. had none. The judge found credible Dr. Miller's findings that the children "will experience increasing risk of harm to their safety, emotional, academic and behavioral development if placed in the care of the biological parents," while they would experience no such harm if separated from them. In denying M.M.C.'s subsequent motion to vacate the termination based on her argument that the children had not fared well in foster care, Judge Conte further opined, "[t]his argument completely overlooks evidence that the children had been in this poor state of being because of the dereliction of parental care offered by their mother."
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).
Judge Conte's opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accords with K.H.O., supra, and In re Guardianship of D.M.H., 161 N.J. 365 (1999), and is supported by substantial and credible evidence in the record. We affirm substantially for the reasons expressed in his thorough and well-reasoned written opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION