Opinion
DOCKET NO. A-3950-12T1
07-21-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. S.W., Defendant-Appellant, and F.B., A.M. and R.B., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF A.M., T.W., S.W., N.W. and J.W., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M., T.W., S.W., N.W., and J.W. (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh, Nugent and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FG-16-22-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan P. Gifis, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Melissa Medoway, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors A.M., T.W., S.W., N.W., and J.W. (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
Defendant S.W. appeals the judgment of guardianship that terminated her parental rights to her five children. She contends that the Division of Child Protection and Permanency (the Division), formerly the Division of Youth and Family Services, did not clearly and convincingly prove that termination of her parental rights was in her children's "best interests" as codified in N.J.S.A. 30:4C-15.1(a). She also contends that because no factfinding hearing was conducted to determine whether she had abused or neglected her fifth child, the amended complaint for custody and guardianship of that child should have been dismissed. Having considered S.W.'s arguments in light of the record, we conclude that the judgment is supported by adequate credible evidence on the record as a whole and consistent with controlling law. Accordingly, we affirm.
Those fathers who were identified surrendered their parental rights at the inception of the guardianship trial.
I.
The Division developed its proofs at the guardianship trial through the testimony of four witnesses and the presentation of more than 200 documentary exhibits. S.W., who was represented by counsel, chose not to appear for the trial, and presented no evidence. Consequently, we recount the following facts from the State's proofs.
S.W. has five children who range in age from three to eight years old: A.A., B.B., C.C., D.D., and E.E. The Division first became involved with then nineteen-year-old S.W. when A.A. was born in September 2005. In July 2010, by which time S.W. had three more children, the Division removed them from her custody on an emergent basis. During the intervening years, the Division provided S.W. with services in an unsuccessful attempt to help S.W. provide her children adequate food, care, and shelter.
To protect the children's privacy, for ease of reference, and because one of the children has the same initials as defendant, we have used fictitious initials for the children.
When A.A. was born, S.W. tested positive for opiates. Notified of that circumstance, a Division caseworker went to the hospital and spoke with S.W., who repeatedly denied using drugs but said she had been around people who were smoking "angel dust" two or three weeks earlier. S.W. had not received prenatal care because she had not realized she was pregnant until the day A.A. was born. She had come to the hospital because she could not sleep and her stomach was bothering her. S.W. lived at her mother's home with her mother and two younger sisters. She intended to live there with the baby upon their discharge from the hospital. She had no crib, clothing, or diapers for the baby.
The record is not entirely clear about whether A.A. was born addicted to opiates. Blood tests were negative but the Division's records include references to the baby suffering from withdrawal. In any event, the Division substantiated S.W. for abuse and neglect; obtained a crib, formula, clothing, diapers and other "baby necessities" for her; provided her with a substance abuse evaluation and an assessment of her mother's home; and, by the end of the month in which A.A. was born, closed the case.
When B.B. was born two years later in December 2007, a worker at the hospital notified Division personnel that S.W. wanted to have the baby put in foster care until she could "get herself together." A caseworker responded and met with S.W., who had been living with her cousin and her uncle. During the meeting, S.W. said she wanted to find housing and the caseworker told her "to ask Welfare and to also get on the Section 8 list." After determining that S.W. wanted to keep her child but needed help "getting on her feet financially," the caseworker arranged for an organization to assist S.W. "with the tasks of raising a baby." The caseworker also referred S.W. to several community resource agencies and arranged for substance abuse evaluations. Within a month of B.B.'s birth, the Division closed the case, S.W. having signed a case plan in which she agreed to provide for the baby's basic needs, including a safe and secure environment and necessary medical attention. S.W. did not comply with the case plan.
Eight months after B.B.'s birth, in August 2008, the Division caseworker learned that S.W. was living in a second-floor apartment in Paterson with several other families. One of the adults was using amphetamines. When the caseworker went to the home, she saw that it was unsafe, disorganized, and dirty. The apartment's window was low and had no safeguards to prevent the children from crawling through it. There was no bannister on the stairway. On the floor were beer cans, small amounts of trash, and dishes with leftover food. The kitchen sink was covered with a sheet because it was clogged. The stove was dirty and encrusted.
The caseworker also discerned that the children's health was at risk. The families living in the apartment did not have enough food for the children. S.W.'s children had no beds and slept with their mother on a mattress on the floor. They were behind in their immunizations. S.W. explained that she was not receiving either Medicaid or welfare.
The Division arranged for monitors from the Emergency Child Abuse Program (ECAP) to provide "spot checks" four times daily, seven days a week, to assure that the home was maintained in a clean condition and that the children had enough to eat. The Division also arranged for S.W. to undergo substance abuse evaluation and treatment, which she did; provided S.W. with information that would enable her to obtain food for the children; and arranged for the children to receive medical attention and immunizations. S.W. signed a second case plan in which she agreed to comply with the programs provided by the Division and also to contact her landlord and request that he install safeguards on apartment windows.
The ECAP monitors reported during the ensuing month that the adults would make no attempt to clean until the ECAP workers would arrive at the apartment. The apartment remained in a disgustingly dirty condition, "food being all over the floor." During one visit, Division and ECAP workers saw A.A., then three years old, chewing tobacco that she had picked up from the floor. Division workers also learned that A.A. had received no medical care for eighteen months.
Nevertheless, a month after beginning its investigation, the Division sent S.W. a letter informing her that the allegations of abuse or neglect were deemed unfounded. The letter further explained that the Division would continue to provide services to her children.
S.W. gave birth to C.C. the next month, October 2008. Following C.C.'s birth, S.W. and her children moved into a basement apartment in Paterson with C.C.'s father. When a Division caseworker visited in November 2008, she found the apartment to be dark, dirty, unsafe, and smelling of rotten food. The bathroom ceiling had caved in, the floorboard was broken, and feces were visible in the broken toilet. The family was sleeping on one bed. The refrigerator contained moldy food that appeared to have been there for days. Other than a half can of Similac, there was no other edible food in the home.
The Division arranged for S.W. and her children to stay in a motel for the weekend, then placed them in a residential "mommy and me" program in Paterson. The Division also scheduled S.W. to undergo a psychological evaluation with Margaret DeLong, Psy.D.
During this evaluation, which took place in January 2009, defendant admitted that she used to smoke marijuana three times a week, and last smoked a year ago. She also drank alcohol, but stopped a year ago as well. She took ecstasy once. Dr. DeLong found that defendant was minimizing her substance abuse problem, had some paranoid personality traits and symptoms of bipolar disorder, and greatly mistrusted the behavior of others. The doctor recommended that defendant undergo individual counseling and substance abuse treatment, and also that she take parenting skills classes.
From November 2008 through March 2009, S.W. refused to participate in substance abuse treatment, though required to do so to remain in the mommy and me program. During her stay, she twice tested positive for alcohol. Although she was doing some daycare work, she paid no rent and saved no money. On March 12, 2009, she was discharged from the residential program for non-compliance, but was permitted to remain in residence until the Division could arrange for another placement.
On September 30, 2009, defendant was evicted for nonpayment of rent after letting her welfare benefits lapse and failing to reinstate them. In October 2009, the Division received an anonymous call that S.W. and her children were living with a registered sex offender.
Division workers responded to a second-floor apartment in Paterson where S.W. was again living with her boyfriend, C.C.'s father. At that time, S.W. was carrying D.D., his second child. S.W.'s boyfriend initially denied that he was a convicted sex offender, but the next day admitted that he had been convicted of a sexual offense, was registered, and that a condition of his parole was that he have no unsupervised contact with children. The Division had him sign a safety plan in which he acknowledged that he would not have S.W.'s children visit or stay with him. The Division eventually transported S.W. and her children to a shelter where she remained until D.D. was born in late November 2009.
Following the birth of D.D., S.W. left the shelter and left behind the children's clothes and supplies. The Division was unable to contact her until the end of April 2010, when Division employee Jessica Pichardo received a call from a friend of S.W. expressing concern for S.W.'s children. Pichardo responded to the address provided by S.W.'s friend and found S.W. living there in a room with the children. Pichardo was concerned because D.D., who had been born five months earlier, looked as if he were about three months old. Pichardo arranged to have medical personnel evaluate the children and to have the children receive immunizations that were past due. On June 14, 2010, the children underwent pediatric evaluation. Medical personnel diagnosed B.B. and D.D. as failing to thrive. B.B. also had asthma, a contagious rash, and a heart murmur. D.D. had not seen a doctor since his birth the previous November. A.A. and C.C. also had heart murmurs.
S.W. did not stay in the apartment with her friend. She returned to her mother's home for a short time and then moved into another apartment with another friend. When Pichardo visited that apartment in July 2010, she observed an unclean mattress on the floor in a room S.W. was sharing with her four children. Flies swarmed above chicken or poultry that had been left in the kitchen sink. S.W. claimed that the chicken was defrosting. The children appeared to need clothing. There was no formula in the apartment. During Pichardo's visit, S.W. opened the refrigerator to give one of the children some grape soda diluted with water. There was no food in the refrigerator, with the exception of "an open Chinese [food] container."
Concerned for the children's safety, Pichardo and the Division effectuated an emergency removal of the children on July 19, 2010. The following day the children were evaluated by a pediatrician. S.W. had washed neither the children nor their clothes for approximately two weeks. She reported giving D.D., who at the time was eight months old, Gerber juice instead of formula. B.B. and D.D. were once again diagnosed as failing to thrive. D.D. was noted to be at risk of growth, developmental, and behavioral problems. Although eight months old, D.D. was dressed in clothes sized for a three-month-old and could not hold his head up or sit up alone. All the children tested positive for lead, with A.A. having the highest levels.
The Division also began to consider relatives for possible placement of the children. The relatives included S.W.'s mother and a paternal relative of A.A. S.W.'s mother's apartment was ruled out because it did not provide adequate privacy for the children. The Division sent a "rule-out" letter to S.W.'s mother. S.W.'s mother said she would work on finding a larger apartment. She did not appeal the Division's decision to rule her out as a placement for the children. A.A.'s paternal relative was ruled out because her home could not be licensed due to structural deficiencies and for other reasons.
A.A. and B.B. were placed together in two foster homes before finally being placed with their current foster family on April 1, 2011. Shortly after her removal, A.A. had four rotted upper front teeth removed and was also fitted for glasses. Due to neglect and elevated lead levels, A.A. had delays in pre-academic skills and required special assistance in kindergarten. C.C. and D.D. were placed together in a different foster home where they have remained to date. C.C. was determined to be developmentally delayed. Both foster families wish to adopt the children.
Meanwhile, the Division had commenced protective services litigation following the removal of the children. On July 21, 2010, a Family Part judge conducted a hearing, entered an order to show cause (OTSC), and granted the Division temporary custody of the children because their safety had been endangered due to lack of a safe shelter, inadequate nutrition, and medical neglect. The judge allowed S.W. to have weekly supervised visitation. On August 11, 2010, the return date of the Division's OTSC, the judge entered an order continuing custody of the children with the Division and scheduling the abuse and neglect factfinding hearing for October 28, 2010. At the factfinding hearing, S.W. stipulated to having abused and neglected her children as follows:
At the time of the children's removal . . . [S.W.'s] apartment was unsafe for her children, the apartment was environmentally neglected in that it was infested with flies, children were sleeping on one mattress in the middle of the floor and she lacked sufficient food and provisions; [C.C. and D.D.] were also diagnosed with failure to thrive and all of the children's needs medically neglected.
From the entry of the August 11 order until the permanency hearing ten months later on June 22, 2011, the court conducted a series of compliance review and case management hearings. During those hearings, the court ordered that S.W. and her children undergo evaluations and that S.W. comply with various services, with the goal of reunification.
The first evaluation S.W. underwent following entry of the August 11 order was a psychological evaluation by Dr. Daniel Bromberg on August 24 and September 29, 2010. The "evaluation revealed an assortment of factors that impair[ed S.W.'s] capacity to parent her young children," as well as "a failure to engage in relatively simple behaviors to ensure her children's well-being." Examples of the simple behaviors included keeping her living quarters reasonably clean and getting her children immunized. According to Dr. Bromberg, S.W. "displayed an incomplete knowledge of her children's medical needs." He concluded that she was not significantly emotionally attached to them.
Dr. Bromberg also concluded that S.W. lacked appropriate strategies for disciplining her children and childproofing her residence, had no viable means of supporting herself and her children, and had a history of managing relationships with men who had either been incarcerated or otherwise posed risks to her children's well-being.
Dr. Bromberg recommended that defendant undergo individual counseling, and attend parenting classes and job coaching. He recommended that her children not be returned to her care and that she have only supervised visitation with them. At a follow-up visit, another doctor recommended that S.W. take antidepressant medication.
When Dr. Bromberg completed his evaluation of S.W. in September 2010, she was residing in a women's shelter and attending weekly two-hour supervised visits with her children. During the next several months, S.W. received child care and home management instruction. She began to take parenting classes and attend welfare workforce meetings. She also completed outpatient substance abuse treatment and attended computer and workplace readiness classes. As of October 25, 2010, the Division was satisfied with her compliance with services.
In November 2010, S.W. began individual counseling with Family Intervention Services ("FIS"). That same month a psychiatrist, Samiris Sostre, evaluated S.W. and diagnosed her as suffering from major depressive disorder, which was interfering with her ability to move forward. Dr. Sostre thought it possible that S.W.'s depression had contributed to her inability to maintain a neat home and follow up with medical visits for her children. She recommended that S.W. begin a course of antidepressant medication and follow up with a psychiatrist for treatment.
S.W. remained compliant with services through January 2011. In February she gave birth to E.E. She believed the father of C.C. and D.D. was also the father of E.E., though subsequent DNA testing proved that this was not the case. S.W. admitted to a Division caseworker who visited her at the hospital that she had been in denial about her pregnancy, had no baby supplies, and was not prepared to bring the baby home. S.W. had not discussed a plan for the baby with her current caseworker because she had planned on giving the child up for adoption. S.W. "refused to provide the [case]worker with relative resources, as she did not want the child with her relatives."
Three days after E.E. was born, the Division substantiated S.W. for neglect based on her failure to receive prenatal care or otherwise prepare for the birth of her baby and the neglect of her other children. The Division also filed an OTSC and amended its complaint to add E.E. The court awarded the Division custody and supervision of E.E., and the Division placed E.E. in the same foster home as A.A. and B.B.
Two weeks after E.E.'s birth, Dr. Alison Strasser Winston, a psychologist, evaluated S.W.'s parenting capacity. The doctor believed that S.W. had adequate emotional attachments to her children but needed to continue to comply with the services offered by the Division. The doctor concluded that if S.W. continued to comply with services she would be able to provide her children with a safe and stable environment within approximately one year. Dr. Strasser cautioned, however, that "[f]ailure to follow through with [recommended services] should be viewed as incapacity to adequately care for her children and failure to achieve permanency." S.W. failed to follow through with the recommended services.
From February through May, S.W. refused to visit E.E. She stopped attending parenting skills training classes, discontinued counseling, missed appointments with her doctor to receive antidepressants, and avoided her caseworker's attempts to contact her. On May 31, 2011, a caseworker located S.W. and explained that due to her non-compliance, the Division's concerns about her mental health, and the children's need for stability, the Division had decided to seek termination of her parental rights. Although defendant barely reacted to this news, she became very upset when the caseworker explained that she would lose the apartment that the Division had helped her obtain in anticipation of reunification with the children.
On June 7, 2011, S.W.'s mother, who still had not relocated to a larger apartment, learned of E.E.'s birth. She advised the Division that she was willing to foster and adopt E.E. A week later, S.W.'s mother, but not defendant, attended a Division meeting to discuss E.E. The mother reiterated her willingness to adopt E.E. but did not mention the other children. That same day, the mother met E.E. for the first time.
One week later, the court issued an order in which it reserved decision on the Division's proposed plan to terminate S.W.'s parental rights followed by adoption of the children. On September 8, 2011, the court issued an order approving the plan. In October the Division filed a Complaint for Guardianship, and in the same month the court entered an order terminating the protective services litigation.
In December 2011, S.W. told caseworkers that she wanted her mother to have her children. She also expressed her willingness to surrender her parental rights to E.E., explaining that she had never wanted her. That same month, her mother requested that the Division write a letter to assist her in getting a larger apartment. The Division eventually licensed the mother's home for E.E. in January 2012. However, on April 3, 2012, the Division notified S.W.'s mother that she had been ruled out with respect to the four older children because she had not secured appropriate housing; her housing situation had not changed. The Division decided not to place E.E. with S.W.'s mother "based on psychological consultation and child's best interest."
S.W.'s mother appealed. Her appeal was denied on July 27, 2012. Although she was advised that she could file a further appeal, she did not do so.
Apparently, S.W.'s mother was given custody of S.W.'s sixth child, born after the present appeal was filed. Defendant supplemented the record with a letter confirming this placement.
--------
Later that year, the father of C.C. and D.D. offered his aunt as a relative with whom they could be placed. The Division ruled her out after determining that because the children had been in placement so long, their best interests would not be served by disturbing their current placement.
During a series of case management conferences conducted between October 2011, when the Division filed the guardianship action, and January 2013, when the guardianship trial began, the court ordered that S.W. undergo psychological and bonding evaluations. She was allowed to continue her weekly visits with the children, and the Division continued to offer her counseling and medical monitoring services. On October 15, 2012, the court entered a default against S.W. for failing to appear at case management conferences. The default was continued when S.W. did not appear for the trial.
In addition to presenting three of its caseworkers to establish the facts set forth above, the Division presented the testimony of Dr. Strasser Winston, the psychologist who had conducted psychological and bonding evaluations. After being qualified as an expert and detailing the basis for her opinions, including her interviews with S.W., the doctor explained why S.W. could not parent her children.
Dr. Strasser Winston opined that S.W. "continued to demonstrate significant impairments in her parenting capacity that would prevent her from being able to provide [for] her children's physical and emotional needs." During the evaluation, S.W. had acknowledged that she was drinking on the weekends, occasionally smoking marijuana, and taking ecstasy to help alleviate her depression and stress over the removal of her children. She insisted that she would stop once the children were returned to her. According to the doctor, these revelations indicated that defendant was self-medicating rather than developing effective coping strategies. The doctor related that research shows children of depressed parents can sense the parent is depressed, which in turn has an adverse emotional impact on children.
More significantly, Dr. Strasser Winston opined that S.W. really had no insight into her parenting deficits. Rather, she placed her own needs ahead of those of her children. She had not adequately addressed the issues that resulted in her children being removed, and she continued to exhibit a lack of adequate parenting knowledge. Additionally, she continued to be depressed, and she was not complying with therapy and medication as needed. In short, S.W. was presently incapable of providing a safe and stable environment for the children and would not soon be capable of providing such an environment.
The doctor also testified about her bonding evaluations of S.W., her mother, the children, and their foster parents. Based upon her observations during bonding evaluations, the doctor concluded that only A.A. had a strong attachment to S.W., that is, a bond that provided her with a sense of safety and stability. B.B.'s attachment was insecure as indicated by his clingy behavior. C.C. and D.D. had very minimal attachments to defendant, and E.E. had no attachment to defendant whatsoever. In the doctor's opinion, the three younger children merely viewed defendant as someone they visited with, not someone who would provide for their needs.
On the other hand, based on her observations, Dr. Strasser Winston concluded that C.C. and D.D. had strong and secure emotional attachments to their foster parents and clearly viewed the foster parents as their actual parents. The doctor further concluded that A.A., B.B., and E.E. had a strong and secure emotional attachment to their foster parents.
Dr. Strasser Winston opined that removing C.C. and D.D. from the home of their foster parents would cause them serious and enduring emotional harm. They would suffer no harm if S.W.'s parental rights were terminated and they had no further contact with her. E.E. would also suffer serious and enduring emotional harm if removed from her foster home, because her foster home is where she has lived almost from the time of her birth, and her foster parents were the only parents she has known. A.A. and B.B., on the other hand, would suffer some harm if S.W.'s parental rights were terminated, but it would not be serious and enduring. According to the doctor, the foster parents of A.A. and B.B. were capable of ameliorating any harm that they might suffer if the court terminated S.W.'s parental rights.
The doctor also performed a bonding evaluation of S.W.'s mother and the children. S.W.'s mother was more attentive to the children than S.W. had been. A.A. and B.B. were particularly happy to see her. She was encouraging with the children and correctly prevented E.E. from eating an inappropriate snack. Although Dr. Strasser Winston found that there was affection between S.W.'s mother and the children, the doctor did not believe the children were bonded to their grandmother and did not view her as a primary caregiver.
Neither the Law Guardian nor S.W. presented any witnesses. In an oral opinion delivered on April 4, 2013, Judge George E. Sabbath thoroughly recounted the foregoing evidence, analyzed the evidence under applicable legal principles, and determined that termination of S.W.'s parental rights was in the children's best interests, as defined in N.J.S.A. 30:4C-15.1(a) and explained in our case law. Judge Sabbath entered a conforming order from which defendant has appealed.
II.
We review S.W.'s appeal under well-settled legal principles. The constitutional right of parents to raise their children, one of "the most fundamental of all rights[,] . . . is a right tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012) (citing N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008)). When discharging its parens patriae responsibility to protect children, the State must utilize its "weapon of last resort in the arsenal of state power" — termination of parental rights — "with caution and care, and only in those circumstances in which proof of parental unfitness is clear." Ibid. (citations omitted). Terminating parental rights must be in the best interests of the child or children. N.J.S.A. 30:4C-15.1(a); F.M., supra, 211 N.J. at 448. The "best interests" standard is codified in N.J.S.A. 30:4C-15.1(a), which requires the State to establish the following four elements in order to terminate one's parental rights:
(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.
These four factors "are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999). The State must establish the statutory criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 506 (2004).
When a parent appeals from an order terminating his or her parental rights, 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." Id. at 511. 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)).
As a general rule, we should also defer to the judge's credibility determinations. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). Such deference is appropriate because the trial judge has a feel for the case and "the opportunity to make first-hand credibility judgments about the witnesses who appear on the stand." E.P., supra, 196 N.J. at 104.
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." M.M., supra, 189 N.J. at 279 (citations and internal quotation marks omitted); see also N.J. Div. of Youth & Family Servs. v. J.S., 433 N.J. Super. 69, 80 (App. Div. 2013), certif. denied, ___ N.J. ___ (2014).
Having reviewed Judge Sabbath's opinion under the foregoing legal principles, we conclude that it is entirely sound and that there is no basis for disturbing it. S.W.'s argument that the Division failed to clearly and convincingly prove the first statutory element - that her parental relationship with the children had or would endanger their safety, health, or development - is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Judge Sabbath's determination that the Division had proved the second statutory prong — that S.W. was unwilling or unable to eliminate the harm facing her children, or unable to provide a safe and stable home for the children and the delay of permanent placement would add to the harm - is amply supported by credible evidence in the trial record. Our Supreme Court has explained that "[t]he second prong, in many ways, addresses considerations touched on in prong one." F.M., supra, 211 N.J. at 451. Prong two requires a trial court to determine whether it is "reasonably foreseeable that the parents can cease to inflict harm upon" their child. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 607 (1986). "No more and no less is required of them than that they will not place their children in substantial jeopardy to physical or mental health." Ibid.
The second prong may be satisfied "by indications of parental dereliction and irresponsibility, such as the parent's continued or recurrent drug abuse, the inability to provide a stable and protective home, [and] the withholding of parental attention and care . . . with the resultant neglect and lack of nurture for the child." K.H.O. , supra, 161 N.J. at 353. Such harm includes "evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child." N.J.S.A. 30:4C-15.1(a)(2).
Here, the Division presented unrefuted evidence that following the birth of E.E., S.W. stopped attending parenting skills training classes, discontinued counseling, missed appointments with her doctor to receive antidepressants, and avoided her caseworker's attempts to contact her. In his opinion, Judge Sabbath recited the litany of services that S.W. failed to either accept or complete. He also found credible Dr. Strasser Winston's opinion that S.W. "continues to demonstrate impairments in her parenting capacity that suggests that reunification with her children would place the children at risk of harm." Lastly, the judge found credible Dr. Strasser Winston's opinions concerning the extent to which separating the children from their resource parents would cause them harm. The totality of the foregoing evidence amply supported Judge Sabbath's conclusion that the Division had clearly and convincingly proved the second statutory element.
S.W. does not dispute that the Division made reasonable efforts to help her ameliorate her many problems, but she contends the Division did not prove the third statutory element because it "failed to fairly present the viable alternative to termination of parental rights for the court's consideration." We disagree.
The Division's obligation to search for relatives is contained in N.J.S.A. 30:4C-12.1, which provides in pertinent part:
a. In any case in which the Department of Children and Families accepts a child in its care or custody, including placement, the department shall initiate a search for relatives who may be willing and able to provide the care and support required by the child. The search shall be initiated within 30 days of the department's acceptance of the child in its care or custody. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The department shall complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child.
b. If the department determines that the relative is unwilling or unable to assume the care of the child, the department shall not be required to re-evaluate the relative. The department shall inform the relative in writing of:
(1) the reasons for the department's determination;
(2) the responsibility of the relative to inform the department if there is a change in the circumstances upon which the determination was made;
(3) the possibility that termination of parental rights may occur if the child remains in resource family care for more than six months; and
(4) the right to seek review by the department of such determination.
c. The department may decide to pursue the termination of parental rights if the department determines that termination of parental rights is in the child's best interests.
Subsection (a) of the statute requires the Division to "complete an assessment of each interested relative's ability to provide the care and support, including placement, required by the child." N.J.S.A. 30:4C-12.1(a). As we have explained, "the Division's statutory obligation does not permit willful blindness and inexplicable delay in assessing and approving or disapproving a relative." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011). Rather, the Division's
responsibility under subsection (a) [is] . . . to conduct a fair investigation of such a relative who identifies himself or herself as a potential caretaker in a reasonably prompt manner. The Division cannot ignore such a relative's timely application out of bureaucratic inertia, or consider that application based upon an arbitrary, preordained preference for the foster placement. The Division must perform a reasonable investigation of such relatives that is fair, but also sensitive to the passage of time and the child's critical need for finality and permanency.
[J.S., supra, 433 N.J. Super. at 87.]
Subsection (b) of the statute requires the Division, in instances where it has determined that a relative is unwilling or unable to assume the care of a child, to inform the relative of, among other things, the reasons for its decision and the relative's right to seek review of its determination. N.J.S.A. 30:4C-12.1(b). "A relative can appeal a Division action that the relative is either unwilling or unable to care for a child." N.J.A.C. 10:120A-3.1(b). Thus, the Division's decision is subject to administrative review. More importantly, if
the Division has been lax or capricious in its assessment of such timely-presented alternative caretakers, it bears the litigation risk that a Family Part judge will conclude, under N.J.S.A. 30:4C-15.1(a)(3), that it has failed to prove by clear and convincing evidence that "alternatives to termination of parental rights" have been appropriately considered.
[J.S., supra, 433 N.J. Super. at 87 (citation omitted).]
The record in the case before us establishes that the Division explored and ruled out three relatives as possible resource parents. S.W. claims that her mother should not have been ruled out. But as Judge Sabbath pointed out in his opinion, the Division twice ruled out her mother as a possible resource. The Division determined in the first instance that her apartment provided inadequate housing for the children, an administrative review officer upheld the Division's determination, and S.W.'s mother did not seek judicial review of either decision.
S.W. argues her mother's housing issue could have been resolved had the Division written a letter, as a caseworker had promised to do at a case management conference, to help her obtain a larger apartment "with Section 8 assistance." She asserts that "the letter was never furnished to [her mother] or to the housing authority." The portion of the record she cites as support for that proposition, however, does not so state. Moreover, S.W.'s assertion that the letter would have resulted in her obtaining a larger apartment is merely speculation.
S.W. also argues that E.E. should have been placed with her mother, and the Division's delay in licensing the mother's home for E.E. was contrary to its statutory obligation. Her argument overlooks the fact that when a caseworker visited her in the hospital following E.E.'s birth, S.W. told the caseworker that she did not want E.E. placed with relatives; and the Division shortly thereafter placed E.E. in a foster home with her siblings.
S.W.'s remaining two arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). Her contention that the court erred when it concluded that termination of her rights would not do more harm than good minimizes the testimony of Dr. Strasser Winston and overlooks the significance of the judge's credibility findings.
As to S.W.'s final point, it does not appear that she raised in the trial court the argument she raises now, namely, that absent a Title 9 factfinding hearing as to E.E., the guardianship complaint as to E.E. should have been dismissed. Nor does she attempt to argue or distinguish our holding in N.J. Div. of Youth & Family Servs. v. A.P., 408 N.J. Super. 252, 255 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010), that the Division's
filing of a Title 30 action and the entry in that action of an order regarding custody and related matters such as visitation, which supersedes any orders entered in the Title 9 action, moots the parent's appeal from the dismissal of the Title 9 action before an adjudication of abuse or neglect.
Having thus considered and rejected all S.W.'s arguments, we affirm. Judge Sabbath's opinion tracks the statutory elements of N.J.S.A. 30:4C-15.1(a), and his decision to terminate defendant's parental rights "is based on findings of fact which are adequately supported by evidence." R. 2:11-3(e)(1)(A). There is simply no basis for concluding that he "went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (citation and internal quotation marks omitted). To the contrary, his decision "falls squarely within the permissible bounds of discretion accorded to the family court." F.M., supra, 211 N.J. at 454.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION