Opinion
DOCKET NO. A-1222-12T3 A-1224-12T3
11-14-2013
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.C. and H.B., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF D.H.B. and D.D.B., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant S.C. (Gilbert G. Miller, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant H.B. (Dianne Glenn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Edward J. Mullins, III, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H.B. and D.D.B. (Christopher A. Huling, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before: Judges Parrillo, Harris, and Guadagno.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-78-11.
Joseph E. Krakora, Public Defender, attorney for appellant S.C. (Gilbert G. Miller, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant H.B. (Dianne Glenn, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Edward J. Mullins, III, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors D.H.B. and D.D.B. (Christopher A. Huling, Designated Counsel, on the brief). PER CURIAM
In these consolidated matters, S.C. and H.B. appeal the termination of their parental rights to their two sons, D.H.B. and D.D.B. We affirm.
S.C. is the mother and H.B. is the father of D.H.B, born on August 30, 2001, and D.D.B., born on March 16, 2004. The Division of Child Protection and Permanency (Division) received approximately nine child welfare referrals regarding the family between December 11, 2004, and April 6, 2010. In 2007 alone, there were three referrals alleging that S.C. was taking the children to a bar with her; was driving drunk with them in the vehicle; was taking pills, such as Xanax; was not feeding the children; was taking them to see H.B. despite him abusing her; and was living in a home with no electricity, running water, or heat. In 2009, there were three more referrals alleging S.C. was using heroin; the home was shot at by drug dealers for retribution; the boys were not enrolled in school, not dressed warm for the winter weather, and they were living in a motel from which the family was about to be evicted.
All of these referrals were investigated and deemed "unfounded" for abuse and neglect of the children, but services were offered to the family. However, the Division did substantiate neglect in the case of the two most recent referrals. On February 6, 2010, the Division received a referral from the Hanover Township Police complaining that the family was living in a motel room in "complete disarray and in deplorable condition." There was an overpowering smell of urine, feces, and dog. There was rotten food and garbage throughout the room rendering it impossible to walk. The toilet was broken and stuffed with towels that were soaked in urine and feces, and there was no access to the sink or shower. S.C., however, had not permitted anyone to enter the room and fix the toilet. In addition, needle caps were found in the room, but not needles. S.C. was arrested for outstanding warrants, but released on her own recognizance.
On December 21, 2009, S.C. was evaluated for a substance abuse assessment and diagnosed with alcohol and marijuana abuse, but did not meet the criteria for treatment recommendations.
The Division substantiated neglect against S.C. for inadequate shelter and kept the case open for supervision. The children were not removed at the time.
Two months later, on April 6, 2010, the Division received the ninth referral regarding S.C., which led to the removal of the children. Police had responded to reports that the children were left alone in the motel room with an angry pit bull. After gaining access to the room, police found S.C.'s adult brother (D.C.) hiding inside, to avoid arrest for outstanding warrants. D.C. was then arrested. After some difficulty finding and contacting S.C., police arrested her for outstanding warrants.
The Division's investigation found the motel room in the same deplorable state as before. In addition, there were prescription bottles in the room not prescribed to S.C. S.C. was substantiated for neglect due to inadequate supervision and inadequate shelter. The children were removed from S.C.'s care and placed in the Division's custody.
Since their removal, the two children have been living together in three separate, non-relative foster homes. After removal from their first foster home, the children had to leave their second foster home because those foster parents were overwhelmed. The boys were then moved to their third and current foster home in March 2012, and have adjusted well to the family and their new school. Their current resource family is committed to adopting them.
Meanwhile, a psychological examination of S.C. was conducted on July 21, 2010, and revealed that she
presented as a defensive, irresponsible adult with a long history of lifestyle instability . . . . She does not appear to have prioritized her children's needs and frequently exhibits poor judgment. . . . [She] appeared to focus instead o[n] obtaining money and items through illegal means. . . . She exhibits antisocial personality traits, as evidenced by her failure to conform to social norms with respect to lawful behavior, deceitfulness, impulsivity, and lack of remorse.Ultimately, the evaluator concluded that S.C. "was not viewed as prepared to parent the children at this time. She is a high-risk parent for child neglect due to poor judgment, lifestyle instability, irresponsibility, and antisocial traits."
After her children's removal, S.C. was non-compliant with services the Division offered. At a permanency hearing on March 17, 2011, the Family Part judge noted that "[s]ince her release from jail, [S.C.] has only very recently been consistent with complying with recommended services to address the concerns that led to placement and she tested positive for drugs today[,]" and that "[S.C.] . . . ha[s] not been consistent with engaging in therapeutic services in order to provide a safe and stable home for the children." In fact, throughout the pendency of this matter, S.C. tested positive for illegal substances on several different occasions, including appearing on March 17, 2011, for a substance abuse evaluation under the influence of Percocet. S.C. was habitually absent and failed to complete offered treatment and services such as psychiatric evaluations, substance abuse evaluations and treatment, counseling therapy, and parenting and anger management classes.
For instance, a substance abuse evaluation on May 26, 2011, recommended S.C. attend a level III.7D detoxification. S.C. reported completing the detox in May 2011, claimed she was in in-patient care for thirty-two days, and was supposed to attend intensive outpatient but did not complete it, as "[i]t was extremely time consuming to go." However, according to the Division representative, S.C. did not, in fact, attend in-patient therapy.
As with S.C., H.B. also has a history of incarceration and substance abuse and had been absent from the children's lives for years at a time. In fact, H.B. had not had any contact with his sons for about one year prior to their removal from S.C.'s care. At that time, H.B. requested to be the children's caregiver, but admitted that he is the father of eight other children, none of whom he parents; did not have stable housing or employment; and was receiving disability payments as his only source of income.
For some time, H.B.'s whereabouts had been unknown and the Division attempted to contact him. On March 22, 2005, H.B. contacted the Division and explained that he had not seen his children in a long time and that he has "many things to do."
A psychological examination of H.B. on July 26 and November 1, 2010 revealed that he
is an immature, manipulative, grandiose adult with a history of paranoia. . . . He has placed his own hedonistic pleasures ahead of his parenting. . . . [He] is a high risk parent for child abuse and neglect based on his limited understanding of the emotional and physical needs of children . . . [but he] did not indicate a risk for child physical abuse.The evaluation noted that H.B. had been diagnosed with paranoia and bipolar disorder: "Of additional concern is [H.B.'s] history of criminal behavior and domestic violence allegations, for which he accepted superficial responsibility. He was viewed as a high-risk parent for child neglect and, therefore, not prepared to parent at this time."
Indeed, H.B. told the Division that he had a history of hospitalizations for mental illnesses and suffered from hallucinations on a daily basis. Dr. Mark Singer, a psychologist retained by the Division, concluded, after a clinical interview and mental status examination, that H.B. has symptoms consistent with paranoid schizophrenia; that H.B. "is not likely to become a viable parenting option for these two children, in the foreseeable future[;]" and that H.B. would decompensate over time due to the lack of treatment for his mental disorder.
Dr. Sueli S. Petry, a psychologist retained by the law guardian, concluded that H.B. is incapable of parenting the children, as he is impaired by his psychiatric illness, and it would be harmful for the children to have to wait for him to get better. According to Dr. Petry, both children are suffering from depression, and D.H.B. is suffering from trauma, because of their relationship with their parents.
Similar to S.C., H.B. has been non-compliant with Division services, having failed to complete therapy, anger management, domestic violence prevention and substance abuse treatment programs. The only parenting plan he offered for the children was for them to live with him at his girlfriend's home with her four other children.
On April 20, 2010, after failing to attend his first appointment, H.B. completed a substance abuse evaluation, where he reported using cocaine, alcohol, and marijuana during his lifetime, but claimed only to currently use marijuana. The evaluation notes that H.B. was previously hospitalized and is on disability for a schizophrenic paranoia. H.B. was recommended for level one outpatient treatment for marijuana use, and was scheduled for another substance abuse evaluation on April 22, 2010, but failed to attend. At a fact-finding hearing on August 19, 2010, H.B. tested positive for marijuana.
Moreover, neither parent demonstrated consistency in visiting with the children. The Division had referred H.B. to the therapeutic supervised visitation program on May 27, 2010. Thereafter, from May 25 to September 19, 2011, H.B. and S.C. cancelled thirteen of thirty-two scheduled visits between them, six by H.B. and seven by S.C. From November 17, 2011 to February 22, 2012, S.C. had seven visits and missed all of the February visits, resulting in her termination from the visitation program. That led the Division to request a search for her whereabouts. During the same period, H.B. had nine visits and canceled three.
Dr. Singer had conducted bonding evaluations among the children and both their biological and foster parents. He found that both boys recognized S.C. and H.B. as their parents, but could not rely on them to provide security and consistency. In contrast, the children looked to their foster parents for care, security and consistency. According to Dr. Singer, the children have already begun to cope with the loss of their biological parents and distanced themselves. Dr. Singer concluded that "there is no alternative to adoption for the boys." Even Dr. John Quintana, a psychologist retained by H.B., found that the children had adjusted well to their new foster home in a short period of time, and should develop a stronger relationship as time progresses.
Indeed, despite the trauma in their lives, the children have been described by a Division representative, a teacher and one of their foster parents as polite, respectful, wonderful, and exhibiting very good behavior. Furthermore, the children have succeeded in school, receiving very high grades and making the honor roll.
Based upon the evidence produced during the guardianship trial, the Family Part judge concluded that all four factors of the best interests test, see N.J.S.A. 30:4C-15.1(a), were satisfied by clear and convincing evidence. As to the first prong, the court found that H.B. harmed the children due to his failure and inability to parent them, leaving them in the sole care of S.C.; his untreated paranoid schizophrenia; his failure to complete any of the court ordered services; and his failure to plan for his sons' care.
The court's findings pertained to both S.C. and H.B.; however, because S.C. does not contest the court's determinations on prongs one and two, we forego a recitation of the findings on these two factors as to her.
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With respect to the second prong, the court found that H.B. "failed to make any progress after these children were placed in resource care." Specifically, H.B. "was discharged from MICA (Mentally Ill Chemically Addicted), ACT (Abuse Ceases Today), parenting skills classes, and discontinued use of psychotropic medication." Further, the court found that despite H.B.'s denials of taking prescription medication, he tested positive for benzodiazepines during the trial. Finally, the court noted Dr. Petry's opinion that H.B. has not been able to follow through with the treatment. As to any delay in permanent placement, the court found that "the removal of these children from their foster home will cause the children emotional or psychological harm."
Concerning the third prong, the court found that the Division's efforts were reasonable and listed the services provided for a "prolonged period" as including: "family team meetings, case plans, psychological evaluation, psychiatric evaluation, referrals to ACT, referrals to counseling, referrals to JBWS (Jersey Battered Women's Service), parenting skills training, substance abuse evaluations, referrals for substance abuse treatment, urine screens, and visitation." Notwithstanding these efforts, the court found that "the biological parents have failed substantially, continuously, and repeatedly to establish a plan for these children."
As to the other element of this prong, the court found that "[t]here is no alternative to termination in this case" and "any argument that [kinship legal guardianship] is appropriate in this case is without merit." The court found that the boys are placed with resource parents who meet their needs and are committed to adopting them. "This circumstance makes it compelling that a failed reunification with either parent would have significant psychological consequences." As for potential placement of the boys with K.C., a close friend of S.C., the Division's investigation concluded she was "either not willing or not able to provide a home for the chil[dren][.]"
Lastly, regarding the fourth prong, the court concluded that
termination will not do more harm than good. The expert testimony of Dr. Singer evinces that these parents cannot provide these children with a safe and stable home at present, nor will they be able to do so in the foreseeable future. Moreover, based on the evidence presented at trial, the Court also finds that this resource family will be able to mitigate any loss that these children may experience if the parental relationship is terminated and that any loss they suffer will not be irreparable. In sum, termination would provide much good to [D.H.B.] and [D.D.B] as it will place them in a loving and stable environment and will afford the children the permanency and stability that they deserve and require.Accordingly, the court entered an order terminating S.C.'s and H.B.'s parental rights to D.H.B. and D.D.B.
This appeal follows, in which S.C. does not challenge the court's findings on prongs one and two, and instead argues:
I. DCPP FAILED TO ESTABLISH THAT THE STANDARD FOR THE TERMINATION OF S.C.'S PARENTAL RIGHTS WAS MET IN THIS CASE.
A. DCPP Did Not Make Reasonable Efforts to Provide Services, and the Trial Court Did Not Consider Alternatives to Termination.
1. Reasonable Efforts to Provide Services.
2. Trial Court's Failure to Consider Alternatives to Termination.
B. DCPP Failed to Establish that Termination of Parental Rights Will Not Do More Harm than Good.
H.B. raises the following issues on appeal:
I. ANALYZING THE EVIDENCE PRESENTED BY THE [DIVISION] WITHIN THE CONTEXT OF THE FOUR PART STATUTORY CRITERIA OF N.J.S.A. 30:4C-15.1(a), IT IS APPARENT THE TRIAL COURT ERRED IN DETERMINING THE DIVISION MET ALL FOUR PRONGS BY CLEAR AND CONVICING EVIDENCE.
A. There was Insufficient Evidence to Support the Trial Court's Conclusion that [D.H.B.'s and D.D.B.'s] Safety, Health, or Development Has Been or Will Continue to be Endangered by the Parental Relationship with H.B.
B. There was Insufficient Evidence to Support the Trial Court's Conclusion that H.B. is Unwilling or Unable to Eliminate the Harm Facing [D.H.B. and D.D.B.] or is Unable or Unwilling to Provide a Safe and Stable Home for [D.H.B. and D.D.B.] and the Delay of Permanent Placement Will Add to the Harm.
C. There was Insufficient Evidence to Support the Trial Court's Conclusion that the Division Made Reasonable Efforts to Provide Services to Help H.B. Correct the Circumstances Which Led to [D.H.B.'s and D.D.B.'s] Placement Outside the Home and the Court Has Considered Alternatives to Termination of Parental Rights.
D. There was Insufficient Evidence to Support the Trial Court's Conclusion that Termination of Parental Rights Will Not Do more Harm than Good.
We are satisfied that the record fully supports the decision to terminate S.C. and H.B.'s parental rights. The Family Part applied the correct legal standards to its factual conclusions. After a review of the record, we discern no basis for disturbing the court's determinations. Accordingly, we affirm substantially for the reasons set forth in Judge Mary Gibbons Whipple's thorough and thoughtful written opinion of October 22, 2012.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION