Opinion
DOCKET NO. A-6122-12T1
06-20-2014
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. T.M., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF T.T.M., a Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Hurley, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.T.M. (Hector Ruiz, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Leone and Manahan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FG-08-27-13.
Joseph E. Krakora, Public Defender, attorney for appellant (Theodore J. Baker, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mary Hurley, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor T.T.M. (Hector Ruiz, Designated Counsel, on the brief). PER CURIAM
T.M. appeals from an order entered by the Family Part on July 23, 2013, terminating her parental rights to the minor child, T.T.M. We affirm.
In April 1999, the Division of Youth and Family Services (Division) received a report that T.M. was physically abusing her four-year-old daughter, Y.M. After other incidents, the Division removed Y.M. from T.M.'s care and several years later, T.M.'s mother was granted kinship legal guardianship of Y.M. In October 2009, Dr. Edward Baruch performed a psychiatric evaluation of T.M. He determined that T.M. had major depressive disorder with postpartum onset; chronic schizophrenia, paranoid type; and schizoaffective disorder.
Dr. Baruch noted that T.M. was four months pregnant. He said T.M. should be monitored closely after giving birth since she might experience postpartum depression. He stated that, although T.M. had been stable for some time, a significant change or stressful occurrence could trigger a relapse into her chronic paranoid schizophrenia.
In March 2010, Scott Hornberger, Program Director of Programs of Assertive Community Treatment (PACT), an agency that provides mental health services, advised the Division that T.M. had been receiving services through PACT since 2001, because of her diagnosis of paranoid schizophrenia. Hornberger said he was concerned that T.M. was pregnant and noted that PACT's clinical team doubted that T.M. could manage the demands that a newborn child would place on her. Among other things, Hornberger said T.M. lacked provisions for a new baby, failed to comply with prenatal care, and did not have social support to assist her in caring for a child.
Later in March 2010, a hospital informed the Division that T.M. had given birth to T.T.M. The Division's caseworkers went to the hospital to speak with T.M. They discussed having the child adopted. T.M. initially agreed to the adoption and gave custody of the child to an adoption agency, but later changed her mind and asked to have the child returned to her.
On April 30, 2010, the Division filed a complaint in the Family Part, and the court granted the Division's application for custody, care and supervision of T.T.M. On May 3, 2010, T.T.M. was placed in a Division-approved foster home. The court later ordered T.M. to participate in mental health treatment and submit to a psychiatric evaluation. Visitation was arranged.
In June 2010, a substance abuse evaluation revealed that T.M. had been abusing cannabis and alcohol. The following month, Hornberger informed the Division that T.M. was continuing to experience distress, although she had been compliant with her medication regimen.
Hornberger indicated that T.M. continued to exhibit active symptomology, and she had difficulty managing her symptoms without direct assistance. Hornberger stated that T.M. was volatile, and she had generally poor insight and judgment.
In addition, on October 22, 2010, Dr. Pamela Kane performed a psychodiagnostic assessment of T.M. Dr. Kane found, among other things, that T.M. had significant mental health problems.
On March 2011, Dr. Melanie A. Freedman and Dr. Janet Cahill conducted a parental capacity evaluation of T.M. They opined that T.M. "meets the criteria for a chronic and severe mental illness with psychotic features and severe impairment of mood." They diagnosed schizophrenia, major depressive disorder (recurrent), rule-out schizoaffective disorder, and a parent-child relationship problem.
Among other things, Dr. Freedman and Dr. Cahill said that it was unlikely T.M.'s functioning would return to a level where she would be able to care for an infant and an adolescent with behavioral problems. They recommended that Y.M. and T.T.M. not be returned to T.M.'s care.
On April 26, 2011, the trial court conducted a permanency hearing and found that the Division's plan to allow Y.M. to live independently and to terminate T.M.'s parental rights to T.T.M. was not acceptable. The court indicated that if T.M. made progress with her mental health treatment, reunification might be possible in the foreseeable future, but noted that termination of parental rights also was a possibility. On August 17, 2011, the court conducted another permanency hearing, and found that the Division's plan of independent living for Y.M. and reunification of T.M. with T.T.M. was acceptable.
In November 2011, Dr. Cahill conducted a bonding evaluation of T.T.M. and his foster parents. She found that T.T.M. had a strong attachment to his foster parents and he was thriving in their care. Dr. Cahill also had been scheduled to conduct a bonding evaluation of T.M. and T.T.M., but T.M. did not appear.
On November 10, 2011, the court conducted a compliance review hearing and entered an order stating that T.T.M. would remain in the Division's custody, care and supervision. T.M. was ordered to obtain stable housing.
In December 2011, Robins' Nest, the agency that had been facilitating visitation, advised that it would no longer do so. T.M. was told visitation would be at the Division's offices; however, T.M. said she did not want to have visitation there.
In March 2012, the court conducted another permanency hearing. The Division had changed its plan from reunification to termination of T.M.'s parental rights to T.T.M., but the court rejected this plan as unacceptable. The court again ordered T.M. to obtain stable housing.
In May 2012, the court ordered the Division to provide T.M. with supervised visitation. However, in the months that followed, T.M. cancelled several visits. On other occasions, T.T.M. became upset when he was taken from the foster home for visits with T.M.
On August 29, 2012, the court approved the Division's plan for termination of T.M.'s parental rights to T.T.M. The judge noted that T.M. had unresolved mental health issues and a history of relapsing. The judge also noted that T.T.M. had been in placement since May 2010, the child was bonded with his foster parents, and Dr. Cahill did not recommend reunification. Y.M. had reached the age of majority, and her matter was transferred to a different docket.
The Division filed its guardianship complaint on October 12, 2012. On April 1, 2013, the court denied T.M.'s motion to amend the Division's permanency plan and require reunification. At the hearing on the motion, Hali DeRouanna, a Division supervisor, testified that T.M. had missed virtually all of her recent visits with T.T.M. A mental health advocate testified that T.M. had recently been compliant with her treatment regimen.
In July 2013, the trial court conducted a trial on the Division's guardianship complaint. The Division's caseworker Lauren Bunn testified about the Division's involvement with T.M. since T.T.M. was born. The Division also presented expert testimony from Dr. James L. Loving, who had performed a psychological evaluation of T.M. on April 3, 2013. Dr. Loving also had performed evaluations of T.T.M.'s bonds with T.M. and with his foster parents. Neither T.M. nor the Law Guardian for T.T.M. presented any evidence at the trial.
The court placed its decision on the record on July 23, 2013, finding that the Division had established with clear and convincing evidence all four of the statutory criteria for termination of parental rights in N.J.S.A. 30:4C-15.1(a). The court accordingly entered an order terminating T.M.'s parental rights to T.T.M. This appeal followed.
The judgment also terminated the parental rights of two individuals T.M. identified as possible fathers of T.T.M., as well as any and all unknown fathers of the child.
T.M. argues that the Division failed to meet it burden of establishing the criteria for termination of her parental rights to T.T.M. We do not agree.
Parents have a fundamental constitutional right to raise their children. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986). The constitutional protection of parental rights is tempered, however, "by the State's parens patriae responsibility to protect the welfare of children." In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999).
Accordingly, the Division is authorized to initiate a petition to terminate parental rights in the "best interests of the child" and the petition may be granted if the following criteria are established:
(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.
[N.J.S.A. 30:4C-15.1(a).]
"The four criteria enumerated in the best interests standard 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." K.H.O., supra, 161 N.J. at 348. The Division bears the burden of satisfying the four criteria by clear and convincing evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012).
The scope of our review in an appeal from an order terminating parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002)). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)).
T.M. argues that the Division did not establish that T.T.M.'s safety, health or development was harmed by his relationship with her. N.J.S.A. 30:4C-15.1(a)(1). She maintains that there was no evidence that she actually harmed T.T.M. or that her mental illness would harm him in the future. We disagree.
Here, the trial court noted that, when T.T.M. was born, T.M. was suffering from mental disorders and she was not in any condition to care for the child. The court found that, at the time, the child would have been at great risk if he had been placed in her care. The record also shows that, despite the Division's efforts, T.M. was not capable of providing a safe and stable home for the child, thereby precluding her reunification with T.T.M. throughout the litigation.
The trial court noted that T.M. had not acted purposely, but her inability to safely parent the child nevertheless established harm for purposes of the first prong of the statutory test. As the court recognized, the Division need not demonstrate actual harm in order to satisfy prong one. N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 440 (App. Div. 2001), certif. denied, 171 N.J. 44 (2002). A court does not have to wait to act until a child is actually harmed by parental inattention or neglect. In re Guardianship of DMH, 161 N.J. 365, 383 (1999).
T.M. further argues that the Division did not establish that she was unable or unwilling to eliminate the harm facing the child. N.J.S.A. 30:4C-15.1(a)(2). T.M. contends that the judge's finding on this prong of the test was based entirely on Dr. Loving's opinion that her mental health condition renders her incapable of parenting the child. She argues that Dr. Loving's opinion was speculative. She claims that her mental illness was under control, as she was compliant with her treatment regimen.
We are convinced, however, that the record supports the court's determination that T.M. is unable or unwilling to eliminate the harm that led to the child's placement in foster care. The focus of the second prong is whether the parent can become fit and cease causing harm to the child. In re Guardianship of J.C., 129 N.J. 1, 10 (1992).
Here, the evidence clearly and convincingly established that T.M. was not able to care for T.T.M. and she would not be able do so in the foreseeable future, despite the Division's provision of an array of services. T.M. could not provide the child with a safe and stable home. She also failed to visit the child consistently, and she did not cooperate with the mental health services provided to her.
As the Division points out, Dr. Loving and the other experts who evaluated T.M. determined that, due to her mental health issues, T.M. was incapable of caring for a child. Dr. Loving's opinion on this issue was not speculative, as T.M. claims. His opinion was based on his evaluation of T.M.
Furthermore, the second prong of the statutory test requires the court to consider whether a delay in a permanent placement will further harm the child. N.J.S.A. 30:4C- 15.1(a)(2). The trial court noted that it had previously refused to approve the Division's plan calling for termination of T.M.'s parental rights, and had directed the Division to provide additional services to T.M. in furtherance of a plan for her reunification with T.T.M.
However, the evidence indicated that T.M. had not fully availed herself of the Division's services. She was not capable of parenting T.T.M. and would not be able to do so in the foreseeable future. Moreover, Dr. Loving testified that delaying permanency would increase the risk of harm to T.T.M. Thus, the evidence clearly and convincingly supports the trial court's findings on the second prong.
In addition, T.M. contends that the trial court erred in finding that termination of her parental rights will not do more harm than good. N.J.S.A. 30:4C-15.1(a)(4). Again, we disagree.
As Dr. Loving explained, T.T.M.'s bond with T.M. is "fairly weak and extremely ambivalent" while he has a strong and positive attachment to his foster parents. The doctor noted that T.T.M. has lived with his foster parents since he was five weeks old and he views them as central and important figures in his life.
Dr. Loving opined that T.T.M. would be at risk for serious and enduring harm if he is removed from his foster parents and returned to T.M.'s care. He said T.T.M.'s foster parents appear capable of mitigating any harm that he might experience if T.M.'s parental rights are terminated.
T.M. argues that the trial court did not address the comparative strengths of her relationship with T.T.M.. However, the court pointed out that T.T.M. was "a sensitive little boy" who had experienced "great and painful" anxiety due to the uncertainties associated with his mother's visits. The court noted that T.M.'s visits with him had become inconsistent.
The court also noted that T.T.M. had virtually no relationship with T.M., aside from the fact that she was his birth mother. The court said T.T.M. has a need "to move forward." We are convinced that the court carefully considered T.M.'s relationship with T.T.M., and the record supports the court's finding that termination of her parental rights to T.T.M. would not do more harm than good.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION