Opinion
DOCKET NO. A-5318-12T3 DOCKET NO. A-5321-12T3
06-13-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. R.F.N., Sr. and V.I.M., a/k/a V.I.N., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF R.F.N., Jr., Minor.
Howard B. Tat, Designated Counsel, argued the cause for appellant R.F.N., Sr. in A-5318-12 (Joseph E. Krakora, Public Defender, attorney; Mr. Tat, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant V.I.M., a/k/a V.I.N. in A-5321-12 (Albert M. Afonso, Designated Counsel, on the brief). Elizabeth E. Cashin, Assistant Attorney General, argued the cause for respondent NJDCPP in A-5318-12 (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent NJDCPP in A-5321-12 (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Todd Wilson, Designated Counsel, argued the cause for minor R.F.N., Jr. in A-5318-12 (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.F.N., Jr. in A-5321-12 (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Argued in A-5318-12T3 and Submitted in A-5321-12T3
Before Judges Grall, Waugh and Nugent.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FG-20-29-12.
Howard B. Tat, Designated Counsel, argued the cause for appellant R.F.N., Sr. in A-5318-12 (Joseph E. Krakora, Public Defender, attorney; Mr. Tat, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant V.I.M., a/k/a V.I.N. in A-5321-12 (Albert M. Afonso, Designated Counsel, on the brief).
Elizabeth E. Cashin, Assistant Attorney General, argued the cause for respondent NJDCPP in A-5318-12 (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent NJDCPP in A-5321-12 (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Todd Wilson, Designated Counsel, argued the cause for minor R.F.N., Jr. in A-5318-12 (Joseph E. Krakora, Public Defender, Law Guardian, attorney; Mr. Wilson, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor R.F.N., Jr. in A-5321-12 (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
This opinion addresses the parents' separate appeals from a judgment of guardianship, which we consolidate. Because the judgment is supported by adequate credible evidence on the record as a whole and consistent with the statutory standards controlling a judge's decision to terminate parental rights in the best interests of their child, N.J.S.A. 30:4C-15.1a, we affirm.
The child whose best interests are at issue is R.F.N., Jr. (Junior). V.I.N., Junior's mother, and R.F.N., Sr., his father, have a well-documented history of limited cognitive ability and function. Both have received services offered by New Jersey's Division of Developmental Disabilities (DDD) and Social Security disability benefits for years, and relatives receive the cash benefits on their behalf and manage their finances. R.F.N.'s history also includes a residential neuro-psychiatric placement attributable to his behavior when he was six years old and a second residential placement at a child treatment center that commenced when he was seven and ended when he was eleven.
The family first came to the attention of the Division of Child Protection and Permanency (Division) in early December 2008, when Junior was about four months old and he and his parents were living with one of V.I.N.'s aunts. At that time, the Division found that the aunt's report of R.F.N.'s kicking V.I.N. was unsubstantiated and that Junior appeared to be healthy.
In July 2010, the Division received two referrals. The first was from another aunt helping the Ns, who reported that R.F.N. had punched Junior. But neither the caseworker nor a doctor who examined Junior found evidence of injury or bruising substantiating that allegation. The second was from Junior's pediatrician, who reported that Junior had eczema that should have, but had not, improved with proper use of the topical cream the doctor had prescribed. He suspected that the parents were not using the cream as directed. Unable to substantiate the cause of the continuing skin condition and concerned by V.I.N.'s inability to produce the cream, the caseworker advised the parents to follow-up on Junior's skin condition, accept a referral that would allow Junior to participate in an early intervention program and see a domestic violence liaison. The caseworker, who was aware of V.I.N.'s and R.F.N.'s connection with DDD, recommended that the Division contact DDD to identify services available to the parents through that agency.
Caseworkers returned to the Ns' home in August 2010 and found unsanitary conditions. The floor was soiled with cat feces and urine, and the sink was full of dirty dishes. There were also piles of dirty laundry on the floor, and a rodent was seen running across that floor. As a consequence of those observations, the Division contacted DDD.
Within days, employees of both agencies visited the Ns. Conditions in their home had improved, and V.I.N. had gotten a refill of the cream prescribed for Junior. DDD offered to provide services for the parents in their home, but the aunt with whom the Ns were residing refused.
On a follow-up visit in September 2010, a Division caseworker found conditions worse than those observed on the first visit. In addition to the odor of cat urine permeating throughout and a sink full of dishes, the floors were caked with dirt and there were hazards — missing banister posts on the railing adjacent to a stairway, electrical wires covered with laundry, and a kitchen knife on the floor next to a dirty diaper.
The parents agreed to sign a protection plan that called for them to clean up the home, eliminate the hazards, obtain psychological evaluations, meet with the domestic violence liaison and accept homemaker services. The caseworker postponed a visit two days later, because R.F.N. was home sick, and upon returning two days later found conditions to be much improved. That day R.F.N. told the caseworker he had a problem with her being there, and he sat with his back to her listening to music during the remainder of her visit.
Despite R.F.N.'s expression of displeasure with the Division's involvement in September, he and V.I.N. and the aunts who were helping them participated in a team meeting with employees of the Division and DDD in October 2010. As a result of that meeting, home care provided by Holy Redeemer was arranged. Staff from that organization came to the home three times in October to teach the parents basic parenting and home management skills, including matters ranging from safety to budgeting and keeping medical appointments to accessing community resources. Although Holy Redeemer reported difficulties its staff encountered in keeping the parents focused during the in-home sessions, the organization agreed to continue its efforts by visiting the family twice a week. At a second team meeting in November, the parents agreed to be supervised by one of the two aunts at all times when they were with Junior, and the aunts agreed to divide their time and serve as supervisors.
There were two significant events on December 17, 2010. Caseworkers visited the home and again found unsanitary conditions — soiled diapers and garbage on the stained floor. V.I.N., according to the caseworker, was irritated by the unannounced visit and indicated that she was anxious for the day the caseworkers would be out of her life. The caseworker was not present when the second incident occurred later that day. V.I.N.'s cousin was visiting, and he was boiling water on the stove to cook hot dogs. Although Junior and Junior's cousin were in the kitchen, the adult cousin left the kitchen. Junior's cousin, a child, opened the oven door and stood on it. Consequently, the pot fell and Junior was burnt on his neck, ears and torso.
Out of concern about the Division's reaction to the accident, the adults decided not to take Junior to the emergency room or doctor. The aunt who was supervising Junior's parents at the time suggested a cold water bath for the crying child. Instead, they went to a pharmacy where, according to them, they were told to use Neosporin.
Three days later, one of the aunts called the Division to advise that they were taking Junior to the doctor. A caseworker observed blood and pus on Junior's ear and saw his burnt, reddened and scabby neck and back. According to the caseworker, the parents blamed the adult cousin who left the boiling pot on the stove. At the Division's insistence, Junior was taken to St. Barnabas Hospital after seeing the doctor. There, Junior was diagnosed with second-degree and third-degree burns.
The Division removed Junior from the custody and care of his parents on December 21. The Division took that action because of the parents' delay in seeking medical attention for Junior and the conditions of the home on December 17 and 21 that continued to exist despite the services the parents had received.
Following the removal and the court's approval of it, the Division agreed that it would continue to provide available services. However, Holy Redeemer discontinued in-home training after Junior was removed, and the agency declined to resume services at the Division's request in February 2011 because of the difficulties staff previously encountered and its assessment of the parents' inability to live independently and need for constant supervision. Nevertheless, the Division arranged and the parents attended, and by June 2011 completed, parenting and anger management courses offered through the Division by Community Access Unlimited.
In addition, V.I.N. participated in counseling and an anger management group at Trinitas Hospital beginning in February and ending in November 2011. No psychiatric conditions warranting medication were detected and the counseling provided was for mixed anxiety, depressed mood and adjustment disorder. The psychiatrist did not recommend additional treatment. Although she was a willing and cooperative participant and made some progress in group sessions, the senior clinician indicated that V.I.N.'s prognosis was "guarded" because of her limitations and the difficulties she and R.F.N. were having since leaving their aunt's home and trying to live independently without adequate social supports.
The parents had left the aunt's home by August 2011. Thereafter, they struggled with housing. In September they were homeless for a time and lived with two different relatives that month. In October they rented space in a residence they shared with other adults. At times their monthly bills exceeded their monthly income, but R.F.N. explained that they were able to get by with help from his mother.
It was not until December 2012 that the Ns had a dwelling of their own. A caseworker visited them and found that the apartment was adequate but unfurnished and not stocked with any food.
In the spring of 2012, the Division offered the parents individual and couples therapy with Family and Children Services, but neither parent kept their appointments. After they were dismissed from the program, V.I.N. explained that she was tired of going for counseling she did not need, and R.F.N. said he did not attend because he had to work.
Despite the foregoing refusals, R.F.N. and V.I.N. agreed to in-home counseling the Division arranged. They participated in November and December 2012, but R.F.N. directed the counselor to leave their home on January 4, 2013. There were no services provided thereafter.
Between December 2010 and January 2013, V.I.N. and R.F.N. were offered weekly supervised visitations, some of which they missed. The Division supervised the visitations until August 2012, when Junior's resource family agreed to permit visitation in their home.
Junior has been with the same resource family since December 2011. The members of that family are V.I.N.'s godmother, her husband and their adopted teenage son. The godmother, who testified at the trial held in April 2013, and her husband are committed to adopting Junior, and they have developed a bond with Junior as he has with them. During her testimony, the godmother described the progress Junior had made and the efforts she and her husband had made to address Junior's behavior, including securing therapy for him.
Even prior to the removal of Junior from his parents' custody and care, the Division attempted to identify and address the source of their parenting problems and address them. A psychologist, Barry A. Katz, Ph.D., was retained by the Division to evaluate the parents in October 2010, before Junior was removed from their custody. He did a second evaluation in July 2012. Dr. Katz concluded that V.I.N.'s intellectual functioning was in the lower end of the mildly deficient range and that her verbal comprehension ability, perceptual organization ability and working memory were all in the mildly deficient range. Using the same instrument and scale, Dr. Katz determined that R.F.N.'s functioning was in the moderately deficient range in all categories except perceptual organization ability, which was his best score and in the mildly deficient range. According to Dr. Katz, V.I.N.'s scores on tests measuring her verbal and nonverbal abilities were equivalent to those of a seven-year-old child and R.F.N.'s verbal and nonverbal abilities were, respectively, the equivalent to those of a seven- and four-year-old child.
In his initial reports, Dr. Katz concluded that neither parent was capable of caring for a child independently. In his opinion, both were functioning at the level of a child who had not yet achieved his or her teenage years.
In his final report, he indicated that despite the services, "[b]oth parents have extreme limitation with regard to dealing with complexity and daily stresses." Noting that the parents had some improvement as a result of parenting skills training and therapy, he concluded that both "continue to be unable to independently care for a child at this time or in the foreseeable future."
R.F.N. also retained and presented the testimony of a psychologist, Richard S. Klein, Ed.D. Dr. Klein did not disagree with Dr. Katz. In Dr. Klein's opinion, R.F.N. "does not have the knowledge of parenting and child development necessary to parent his son independently. Because of his disability (intellectual deficits) it is this psychologist's opinion that [R.F.N.] is not capable of acquiring the knowledge and skills required to parent the child independently." The only matter on which the psychologists differed was whether adoption by the godmother and her husband was in Junior's best interests. In Dr. Klein's opinion, termination of parental rights would be a punishment for both Junior and his disabled parents. For that reason, he opined that kinship legal guardianship was the legal option that would best serve Junior's interests. In contrast, Dr. Katz viewed termination of parental rights and adoption as the option that would serve Junior's best interests, because the child's interaction with his parents, which he observed during two bonding evaluations, "puts him at increased risk for ongoing problems in functioning."
Dr. Katz's view of Junior's respective bonds with his biological and resource parents changed between the first evaluation in March 2012 and the second in January 2013. He was questioned about the differences at trial:
Dr. Katz performed the first bonding evaluation on March 29, 2012 and issued his report on June 18, 2012.
DEFENSE COUNSEL: Can you tell us how can you account for the difference between — if visitation remained the same in 2012 to 2013, how can you account for the deterioration of the bond?
DR. KATZ: There — well there's a couple of factors. The first is generally, even though there is visitation, it's limited. It's not a daily interaction of a child to parental figures. The other aspect is the nature of the interaction. We see from the behavior of [R.F.N. and V.I.N.] has changed to where their focus was less on [Junior] in the 2013 evaluation and was more focused on the examiner of issues related to their case, and less on the needs of the child in the room at that moment. I think that's been somewhat of a switch too, in focus for the parents. And that's been consistent with the reports and the visitation, some going well, some having problems.
With respect to the positive and negative impact on Junior that would follow a termination of parental rights, Dr. Katz testified that:
all indications are that [Junior] would continue to grow and develop normally within the [resource family]. If there were any problems in terms of just the general issue of being an adopted child, certainly those issues have every indication of being able to be handled through [Junior's] secure bond and attachment with the foster parents. If there was any difficulty beyond that, certainly therapy could be made available to [Junior], but I would doubt that that would even be necessary in this case.
During cross-examination, Dr. Katz further explained:
So . . . because there's such a strong bond and emotional attachment to the foster parents, and there's such a lack of that nature of bond and emotional attachment to the biological parents is what gives me the information to say about the child tolerat[ing] a severance of the biological parents' rights and contact. Because we
already see that the transition has been made.
A psychiatrist retained by the Division, Dr. Alexander Iofin, M.D. also evaluated V.I.N. and R.F.N. twice. He concluded, as the psychologists had, that neither parent was capable of parenting Junior without supervision, either independently or as a couple. Further, in his opinion, the deficits that precluded R.F.N. and V.I.N. from parenting without supervision were not correctable. Noting his training in medicine, Dr. Iofin noted the serious risks, including death, associated with delayed treatment of third-degree burns.
On the foregoing evidence, Judge Ospina found that termination of R.F.N.'s and V.I.N.'s parental rights was in Junior's best interests, as defined in N.J.S.A. 30:4C-15.1a and construed and applied by our courts. The judgment is based on findings of fact that are adequately supported by evidence, R. 2:11-3(e)(1)(A); N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008), and the judge's determination is not wide of the mark, N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012), or otherwise a product of abuse of discretion or misunderstanding of the law.
The law governing termination of parental rights is well-settled. The standards are codified and set forth in a four-prong test. N.J.S.A. 30:4C-15.1a(1)-(4). Termination is permissible only if the Division presents clear and convincing evidence establishing that:
(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.
[Ibid.]
Our review of the trial court's application of the facts of this case to these standards is limited. 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)). And, 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) (internal citations omitted).
Considering the record under the foregoing standards, we see no basis for disturbing this judgment. Substantially for the reasons set forth in the oral opinion the judge delivered on June 13, 2013 as supplemented in the following description of the judge's oral opinion, we affirm.
As to the first and second prongs of the best interests standard, N.J.S.A. 30:4C-15.1a(1) and (2), the judge found that Junior was placed at risk of harm by his parents' delay in seeking medical treatment for his third-degree burns and that the delay was a product of the parents' limited and uncorrectable cognitive functioning. Those findings were supported by the testimony of all of the experts who evaluated R.F.N. and V.I.N., including R.F.N.'s expert. Given the expert testimony, the judge's conclusion that Junior would be further harmed by delaying Junior's permanency to await his biological parents' development of parental capacity was well-supported.
Contrary to the parents' claim, the judge's decision was based on their acts and omissions endangering the child, not their intellectual and cognitive disabilities. There was significant evidence of endangerment attributable to the parents — the unsafe and unsanitary conditions in the home that persisted even though the parents received in-home parenting training; R.F.N.'s inability or unwillingness to interact with and respond to Junior during visitations; and V.I.N.'s forgetfulness about appointments arranged by the Division and ineffectual reactions to Junior's misbehavior during visitations and bonding evaluations.
R.F.N.'s reliance on this court's reversal of a finding of neglect against the aunt who agreed to supervise their parenting is unpersuasive. The reversal in that case was based on the Division's failure to prove gross negligence or recklessness on the aunt's part, N.J. Div. of Youth & Family Servs. v. B.D., No. A-3880-11 (App. Div. Oct. 9, 2013) (slip op. at 19). But the harm addressed in prong one does not require such proof; as noted above, the question is simply whether "[t]he child's safety, health or development has been or will continue to be endangered by the parental relationship." N.J.S.A. 30:4C-15.1a(1). Moreover, neither R.F.N. nor V.I.N. appealed the finding of neglect, and for that reason, our decision addressed only B.D.'s liability.
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As to the third prong, the judge concluded that the Division had made "reasonable efforts" to provide the parents with services to correct the conditions that led to Junior's removal. Despite the overwhelming evidence supporting that determination, the parents argue that the Division should have done more. This clearly is not a case in which the Division failed to consider the particularized needs of the parents. The Division's prompt connection with and involvement of DDD, and its multiple efforts to provide training in the home where the skills would be utilized, belie the claim. To the extent that V.I.N. argues that the Division should have arranged for twenty-four-hour supervision of parenting available through the DDD, the record does not include any evidence that such services are available. More importantly, there is long-standing authority that the State's efforts to assist a parent in correcting circumstances that led to removal of their child does not include an obligation to provide full-time assistance. In re Guardianship of D.N., 190 N.J. Super. 648, 653-54 (J. & D.R. Ct. 1983). Focusing on the stability and security of a relationship with an adult caregiver that is the central component of the permanency deemed so important to a child's development, F.M., supra, 211 N.J. 420 at 453, a parental relationship based on twenty-four-hour professional supervision of the parents' interaction with a child is an aim that is wide of the mark.
With respect to the fourth prong, the judge relied on Dr. Katz's most recent assessment of the relative bond between Junior and his biological and prospective adoptive parents and the prospective adoptive parents' ability to ameliorate any loss Junior would experience. Contrary to the parents' claims, the judge did not err in relying on Dr. Katz's testimony; he provides an ample explanation for the shift in his opinion on the strength of Junior's attachment to his biological family. In these circumstances, the propriety of the judge's conclusion that termination would not do more harm than good was clear. There was overwhelming evidence that Junior's biological parents, unlike the resource parents who wanted to adopt him, would never be able to give Junior the care, nurturing and safe environment he required.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION