Opinion
DOCKET NO. A-6200-11T4 DOCKET NO. A-6201-11T4
05-01-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.E.L. and T.S.D.L., Defendants-Appellants. IN THE MATTER OF THE GUARDIANSHIP OF K.T.L, Minor.
Joseph K. Krakora, Public Defender, attorney for appellant S.E.L. (Donald O. Egbuchulam, Designated Counsel, on the brief). Joseph K. Krakora, Public Defender, attorney for appellant T.S.D.L. (Bernado W. Henry, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.T.L. (Sean Lardner, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Maven and Hoffman.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FG-07-85-11.
Joseph K. Krakora, Public Defender, attorney for appellant S.E.L. (Donald O. Egbuchulam, Designated Counsel, on the brief).
Joseph K. Krakora, Public Defender, attorney for appellant T.S.D.L. (Bernado W. Henry, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor K.T.L. (Sean Lardner, Designated Counsel, on the brief). PER CURIAM
Defendants T.S.D.L. (Thomas) and S.E.L. (Sheila) appeal separately from the June 28, 2012 Family Part judgment terminating their parental rights to their then five-year-old biological daughter, K.T.L. (Katrina). In these consolidated appeals, defendants contend the Department of Child Protection and Permanency (Division) failed to prove each prong of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. They further contend the trial judge erred by accepting the Division's permanency plan of adoption by S.L. (Sally), the child's maternal grandmother, rather than granting Sally kinship legal guardianship (KLG). The Law Guardian supported termination before the trial court and, on appeal, joins the Division in urging us to affirm. Based upon our review of the record and applicable law, we are satisfied the Division proved by clear and convincing evidence the requisite statutory factors required to terminate the parental rights of both defendants. Accordingly, we affirm substantially for the reasons set forth in Judge Garry J. Furnari's comprehensive oral opinion of June 27, 2012.
To protect the confidentiality of the parties, the names of the parties, as well as all children referenced in this opinion, are fictitious.
The statutory grounds for termination of parental rights are designed to balance parental rights and the State's parens patriae responsibility to protect the welfare of children. Under this "best interests of the child" standard, parental rights may be terminated on a showing by clear and convincing evidence that:
(1) the child's safety, health, or development have been or will be endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm facing the child or is unwilling or unable to provide a safe and stable home and the delay of permanent placement will add to the harm; (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.
[N.J.S.A. 30:4C-15.1(a).]
I.
We will not recite in detail the history of the Division's involvement with defendants. Instead, we incorporate by reference the factual findings and legal conclusions contained in Judge Furnari's decision. We add the following brief comments.
Sheila and Thomas are the unmarried parents of Katrina, born in 2007. In June 2009, Thomas gained physical custody of Nancy, his daughter from a prior relationship, born in 2006. On November 21, 2009, Nancy was taken to the emergency room of Newark Beth Israel Hospital via ambulance where she later died as the result of an acute inflicted brain injury. The official cause of death was battered child syndrome, and the manner of death was homicide.
Elizabeth S. Hodgson, M.D., a licensed pediatrician board certified in child protection pediatrics from Newark Beth Israel, submitted a preliminary report on Nancy's death, concluding that she "died as the result of an acute inflicted brain injury." Dr. Hodgson opined that "[t]he constellation of findings . . . are consistent with injuries found in children who have suffered non-accidental abusive head trauma from being shaken and impacted."
Zhongxue Hua, M.D., the designated forensic pathologist for the State Medical Examiner, submitted his autopsy report. Hua's gross findings included blunt injuries to the head "with multiple scalp and facial contusions, bilateral subdural hemorrhage, brain swelling and edema, and subarachnoid hemorrhage," as well as blunt injuries to the torso "with multiple contusions without bone fracture or visceral laceration."
A Division caseworker interviewed Sheila and Thomas at the hospital. Both denied any domestic violence or substance abuse in the home, but each admitted disciplining the children by either "popping" them with their hands on the child's hand, or using a belt to hit them on the buttocks. On the evening of November 21, 2009, the Division conducted a Dodd removal of Katrina and placed her in foster care on November 22, 2009. On May 25, 2010, Sheila and Thomas were arrested and charged with first-degree murder and second-degree endangering the welfare of Nancy. Judge Furnari concluded these circumstances clearly and convincingly demonstrated that defendants had exposed Katrina to a substantial risk of harm.
A "Dodd removal" refers to the emergency removal of a child from the home without a court order, pursuant to the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82.
Both defendants were incarcerated in May 2010 following their arrest. Thomas remained in custody throughout this trial.
We are satisfied the facts in evidence established that, commencing with the Division's involvement with defendant in November 2009, and up until the start of the trial in June 2012, defendants were unable or unwilling to overcome the deficiencies that rendered them each unable to safely parent Katrina. During that time, Katrina endured two separate out-of-home placements, including the placement with Sally. The Division offered numerous services to defendants, both before their arrests and while they were in jail, to the extent possible. Services to Thomas were constrained by his incarceration, as he was segregated from the general population in protective custody for twenty-three hours a day. Notwithstanding its reasonable efforts, the Division was unable to provide Thomas with service while he was incarcerated. Sheila does not challenge the services provided to her. However, evidence presented supports the need for further services to address her most serious deficiencies.
Credible expert testimony from both the State's and defendants' experts revealed that at the time of trial neither defendant possessed the capacity to adequately meet Katrina's needs for safety, nurturance, stability, and guidance. The State's expert, Frank J. Dyer, Ph.D., conducted one psychological evaluation of Sheila, two bonding evaluations of Sheila with Katrina, and one set of psychological and bonding evaluations of Thomas. He also conducted a bonding evaluation between Sally and Katrina. Dr. Dyer diagnosed Sheila with an unspecified adjustment disorder, borderline personality disorder, and depression. Those diagnoses raised concerns regarding her ability to parent Katrina. Following the second bonding evaluation with Sheila, he noted some improvement; however, his concerns regarding Sheila remained. He opined to a reasonable degree of psychological certainty, that if Sheila had sole responsibility for caring for herself and Katrina, she would experience added stress, making her vulnerable to regression and foreseeably tragic results.
When Dyer evaluated Thomas, he noted Thomas responded with an extreme degree of "defensiveness and guardedness." Although Thomas admitted hitting Nancy with a belt when she soiled herself, he blamed Sheila entirely for Nancy's death. Dr. Dyer remained concerned about Thomas's admission he used corporal punishment to discipline the children, his complete lack of appreciation of how inappropriate that was, and his projection of blame onto Sheila.
Karen Wells, Psy.D., Sheila's expert, conducted two psychological evaluations of Sheila and a bonding evaluation of Sheila and Katrina. Dr. Wells believed Sheila responded well to her counseling and therapy sessions and showed improvement; however, there were areas that would need to be addressed because of the amount of stress that had been presented in Sheila's life. Dr. Wells concluded that as of the date of her trial testimony, reunification of Katrina and Sheila was not appropriate, and that Sheila would have to obtain and maintain gainful employment before reunification could occur. Dr. Wells recommended KLG rather than termination and adoption by Sally.
Bonding evaluations further revealed there was some likelihood that Katrina would experience a loss if defendants' parental rights were terminated. Dr. Dyer opined such loss, however, would not be tragic and there would be no severe enduring harm because she was closely bonded with Sally who had a very strong capacity to mitigate that harm, and because Katrina's relationship with Sheila would likely continue if she were adopted by Sally.
Judge Furnari carefully reviewed the evidence presented, thereafter concluding the Division met all of the legal requirements for a judgment of guardianship by clear and convincing evidence. His opinion tracks the statutory requirements of N.J.S.A. 30:4C-15.1(a), accord In re Guardianship of K.H.O., 161 N.J. 337 (1999), In re Guardianship of D.M.H., 161 N.J. 365 (1999), and New Jersey Division of Youth and Family Services v. A.W., 103 N.J. 591 (1986), and is supported by substantial and credible evidence in the record. See N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012).
We turn to address defendants' contentions raised on appeal and find insufficient merit in defendants' arguments regarding the first and second prongs of N.J.S.A. 30:4C-15.1(a) to warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E). We only briefly observe, with regard to these two prongs, the record abundantly supports the trial court finding that defendants abused and neglected Katrina.
The trial judge found Drs. Dyer and Wells credible and relied on their testimonies to reach the conclusion that defendants had exposed Katrina to a substantial risk of harm, and each were unwilling and unable to either eliminate such harm or provide Katrina a safe and stable home. The judge credited Dr. Dyer's opinion that defendants would not be physically or psychologically able to take care of their child for the foreseeable future. Indeed, Dr. Wells reached a similar conclusion. Accordingly, we conclude there is sufficient evidence presented to support the judge's findings regarding the first two prongs, and we have not been provided anything to warrant our second-guessing of that determination.
Next, defendants contend the Division failed to prove by clear and convincing evidence the elements of prong three. The third factor "requires DYFS to undertake diligent efforts to reunite the family." K.H.O., supra, 161 N.J. at 354 (citing N.J.S.A. 30:4C-15.1(a)(3)). Additionally, alternatives must be considered before deciding to terminate parental rights. N.J.S.A. 30:4C-15.1(c).
Here, Thomas argues the Division has failed to make reasonable efforts to provide him services while being incarcerated, and both defendants argue the Division failed to consider alternatives to termination of parental rights. We disagree.
We have "recognize[d] the difficulty and likely futility of providing services to a person in custody." N.J. Div. of Youth & Family Servs. v. S.A., 382 N.J. Super. 525, 535-36 (App. Div. 2006). The Division provided Thomas with visitation with Katrina and a psychological and bonding evaluation. However, once incarcerated the provision of the additional recommended services were not within the Division's control. Thus, "[e]ven if the Division had been deficient in the services offered [to the non-custodial parent], reversal would still not be warranted, because the best interests of the child controls." 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). Here, Katrina's best interests were served by placing her with her loving and nurturing grandmother who is willing to adopt her. In contrast, defendant could provide her with neither a safe nor nurturing environment due to his incarceration.
Next, we turn to the parties' primary contention that the trial judge should have granted KLG to Sally, the maternal grandmother. Both Sheila and Thomas argue that because Sally expressed her preference for KLG even though she indicated a willingness to adopt "if no other options or choices are available to [her]," she did not indicate an "unequivocal" desire to adopt Katrina. As such, they argue adoption is "neither feasible nor likely." In contrast, the Division posits that the grandmother's willingness to adopt, even though it was not her first choice, proves that adoption is feasible.
During a bonding evaluation with Dr. Dyer in June 2011, Sally expressed her first preference would not be to adopt Katrina because she felt Sheila was a good mother. She also expressed that in the event reunification between Sheila and Katrina was not possible she would adopt Katrina. She maintained that position in the follow-up bonding evaluation in January 2012, in a letter to the Division explaining her preference for KLG, and in her testimony during the permanency hearing.
--------
The standards that guide a court in the appointment of KLG are similar to those for the termination of parental rights set forth in N.J.S.A. 30:4C-15.1. Prior to the appointment of a kinship legal guardian, the court must find by clear and convincing evidence that:
(1) each parent's incapacity is of such a serious nature as to demonstrate that the parents are unable, unavailable or unwilling to perform the regular and expected functions of care and support of the child;Although these standards echo the best interests standards for termination of parental rights, KLG requires a finding that adoption is "neither feasible nor likely." N.J. Div. of Youth & Family Servs. v. P.P. and S.P., 180 N.J. 494, 509 (2004). We focus our attention on this element of the statute.
(2) the parents' inability to perform those functions is unlikely to change in the foreseeable future;
(3) in cases in which the [D]ivision is involved with the child as provided in subsection a. of section 8 of P.L.2001, c.250 (C.30:4C-85);
(a) the [D]ivision exercised reasonable efforts to reunify the child with the birth parents and these reunification efforts have proven unsuccessful or unnecessary; and
(b) adoption of the child is neither feasible nor likely; and
(4) awarding kinship legal guardianship is in the child's best interests.
[N.J.S.A. 3B:12A-6(d).]
"[I]t is the inability or unwillingness of a caregiver to adopt that renders adoption 'neither feasible nor likely.'" N.J. Div. of Youth and Family Servs. v. T.I., 423 N.J. Super. 127, 135 (App. Div. 2011). It is well established that "when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3)." P.P., supra, 180 N.J. at 513; see N.J.S.A. 3B:12A-6(d)(3)(b).
Here, the matter turns on whether Sally's stated preference against adoption, and for KLG, was determinative of the issue. We conclude it was not. Expressing a preference for kinship legal guardianship does not mean that adoption is not feasible. In T.I., we considered the meaning of "neither feasible nor likely," and concluded "the Legislature's findings make clear, the meaning of neither feasible nor likely forms a core basis for the creation of KLG." T.I., supra, 423 N.J. Super. at 135 (quoting N.J.S.A. 3B:12A-1) (internal citations and quotation marks omitted). As such, we determined "it is the inability or unwillingness of a caregiver to adopt that renders adoption neither feasible nor likely." Ibid.
Here, Sally expressed a preference for KLG, apparently motivated by a desire to preserve Sheila's parental rights; however, she also expressed a willingness to adopt, as the trial judge found. Neither the Legislature nor the courts have universally viewed KLG as a safe haven to allow unfit parents additional time to better their circumstances and remove the impediments to reunification. Rather, the goal is the child's best interests, which bespeak a permanent solution, not a temporary fix. The facts in this case support the trial judge's rejection of KLG in this case, a finding that our standard of review precludes us from second-guessing.
Lastly, we find no merit in the contentions of both defendants that the evidence was insufficient to support a finding in favor of the Division on the fourth prong. In concluding that termination of defendants' parental rights will not do more harm than good, the judge summarized the circumstances that demonstrated the strong bond between the child and the maternal grandmother and defendants' respective unfitness to care for the child:
[I]t appears that the maternal grandmother has assumed the position of centrality in this little girl's emotional life as reflected in the quality of [Katrina's] emotional responsiveness towards her grandmother while playing during the assessment, as well as her bright mood, enthusiasm, [and] constructive nature of [her] play.
[Katrina] also referred to her grandmother as mom at times, despite the grandmother's efforts to correct and encourage her to use the term mom to address her natural mother, [Sheila].
As a result of these evaluations, Dr. Dyer concluded that if [Katrina] were to remain permanently in the custody of the maternal grandmother it's very likely that she would benefit from her close relationship with her grandmother, [r]eceive appropriate structure, guidance, nurturing, positive role model, and be protected against physical harm.
However, if she were to be reunited with either parent, she would be highly likely to exhibit the same kind of negative behaviors that she did . . . in the two bonding assessments with them or [exhibit] a heightened degree of such behavior [that] would be very likely to provoke [an] inappropriate[] disciplinary response from them.
Therefore it was recommended to [the Division] to pursue a case goal of adoption for [Katrina] by her grandmother. Dr. Dyer's updated bonding evaluation came to the same conclusions.
This court recognizes that both experts testified that the child would be significantly harmed -- or harmed if contact with [Sheila] is terminated.
However, given the high likelihood of the continued liberal contact between [Katrina] and [Sheila], . . . it is in Dr. Dyer's opinion that [Katrina] would not suffer a traumatic loss if she were adopted by her grandmother.
Therefore his recommendation continues to be case goal for adoption of [Katrina]. And I agree.
[Sheila] and [Thomas] have failed to provide [Katrina] with a safe and stable home and permanency she so desperately deserves[.]
And it is clear that the termination of [Sheila's] and [Thomas's] parental rights would certainly not result in any more harm than good for this child, despite these findings.
These findings are fully supported by the evidence and justified the judge's determination that the fourth prong was established by clear and convincing evidence. In coming to these and other conclusions, which amply support his finding on the fourth prong, the trial judge had the advantage of observing the witnesses and judging their credibility. These findings are, therefore, entitled to our deference.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION