Opinion
DOCKET NO. A-4990-13T4
01-06-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent/Cross-Appellant, v. T.T., Defendant-Appellant/Cross-Respondent. IN THE MATTER OF THE GUARDIANSHIP OF P.L.E. and C.D., Minors
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Leone and Whipple. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FG-09-0202-14. Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Catherine Reid, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Sara M. Gregory, Deputy Attorney General, on the briefs). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Todd Wilson, Designated Counsel, on the brief). PER CURIAM
Defendant T.T. appeals from a May 20, 2014 judgment of guardianship entered by the Family Part, terminating her parental rights to her children, Penny and Carrie. We affirm.
We use fictitious names and initials to protect the privacy of the children.
T.T. has a lengthy history of involvement with the Division of Child Protection and Permanency (the Division), including two guardianship trials. The Division first became involved with T.T.'s family when she was a child and was removed from her mother and classified as emotionally disturbed. T.T. is the biological mother of four children: Gary, Jill, Carrie (C.D.), and Penny (P.L.E.).
In 2008 the Division removed Gary, Carrie and Jill from her care due to concerns that T.T. was delusional after she claimed a friend's baby, who was temporarily entrusted to her care, was her child. The trial court determined that under N.J.S.A. 9:6-8.21, T.T. had abused or neglected these children because of her refusal to treat her mental illness, and because of her resulting bizarre behavior. T.T. appealed. During this time, T.T. was resistant to Division intervention, although she continued to exhibit mental health problems. She lacked stable housing, had inconsistent mental health treatment, was inconsistent with maintaining her visitation schedule, and did not comply with court orders. The Division received numerous referrals regarding T.T.'s bizarre and erratic behavior. Specifically, the Division received a number of calls about another child, after T.T. claimed she gave birth to a son in 2009 named C.D. The matter ultimately proceeded to the first guardianship trial which was completed on March 7, 2012.
The finding of abuse and neglect under N.J.S.A. 9:6-8.21 was reversed by this court because, although T.T. demonstrated bizarre behavior, at that time the Division had not shown that T.T.'s children were harmed by her mental health issues. See N.J. Div. of Youth & Family Servs. v. T.T., No. A-4189-11 (App. Div. June 25, 2013), slip op. at 10, certif. denied, 216 N.J. 363 (2013). While the Title Nine appeal was pending, the trial judge entered her ruling in the guardianship proceeding as described above on March 7, 2012. On April 11, 2012, after the Title Nine finding was reversed, the trial judge issued an Amended Decision outlining additional evidence of T.T.'s mental illness in the first guardianship matter, which was later affirmed by this court in all respects. Id. at 36-36.
C.D.'s existence has never been verified.
As a result of the first guardianship trial, T.T.'s rights as to her child Gary were terminated, but not as to Carrie or Jill, because the Division had not found individuals willing to adopt Carrie or Jill. The trial judge thus reinstated the Title Nine proceeding as to Carrie and Jill, with the Division maintaining custody, because the judge found that T.T. experienced "significant episodes of delusional thinking and paranoid ideations that have manifested in behaviors described by the experts as volatile, bizarre and threatening," and that there was ample additional evidence in the record that T.T's mental state placed her children at risk of harm. During the first guardianship trial three expert witnesses had testified and supported the conclusion that T.T. had chronic, severe, untreated mental illnesses which precluded her from safely parenting her children. T.T. had presented no experts to rebut these conclusions.
In affirming the decision not to terminate T.T.'s parental rights as to Carrie and Jill, we advised that "if the Division seeks termination of T.T.'s parental rights as to [Carrie], the trial would be focused only on the fourth prong of the [N. J.S.A. 30:4C-15.1(a)] test. That inquiry would address the child's current situation[.]" N.J. Div. of Youth & Family Servs. v. T.T., supra, slip op. at 36 n.7.
Penny was born in June 2012. She was removed from T.T.'s care via an emergency Dodd Removal pursuant to N.J.S.A. 9:6-8.28 and the Division filed a separate Title Nine proceeding on June 21, 2012. The trial judge ruled that the Division had not established that T.T. abused or neglected Penny, but maintained Penny's custody with the Division under N.J.S.A. 30:4C-12 as this was a family in need of Division services. In August 2013, the Division sought termination of T.T.'s parental rights as to Penny because T.T.'s ongoing mental health issues and resistance to Division intervention harmed Penny and would continue to do so. The Division was relieved from having to make further efforts to reunify T.T. and Penny. On October 29, 2013, the Division amended the guardianship complaint to add Carrie because an adoptive home had been found for her.
Jill is not the subject of this guardianship proceeding and remains in Division custody.
The second guardianship trial, which is the subject of this appeal, commenced on January 23, 2014. The Division moved in limine seeking to avoid re-litigation of the first three prongs of N.J.S.A. 30:4C-15.1(a) as to Carrie. The trial judge granted that motion. Division caseworker Raymond Brown testified for the Division about Carrie's behavioral problems and current placement, and also testified about T.T's noncompliance with Division recommendations, doctor's recommendations and court orders. The judge found him to be credible.
Brown's testimony was interrupted so that Dr. Karen Wells could testify. Defendant asked that Brown be sequestered. The Division objected, arguing Brown was a representative of the Division, and therefore a party to the case. The trial judge sequestered Brown, noting that he was in the middle of his testimony. In its cross-appeal, the Division argues that the trial court abused its discretion in sequestering Brown, the Division's caseworker, pursuant to N.J.R.E. 615. Specifically, the Division argues that Brown, as the representative of the Division, had the right to be present during the testimony of other witnesses. We do not reach this issue as we affirm the order of guardianship.
Dr. Wells, a psychologist, testified that T.T. "expressed in an unwavering manner her desire for all of her children to be reunited with her" and offered a plan for such reunification. But, based on her clinical interview and testing, Dr. Wells determined that T.T. was not capable of providing a safe and stable home for Carrie, either psychologically or emotionally.
Dr. Wells indicated T.T. presented the symptoms of dissociative identity disorder with a poor prognosis and that it was unlikely she would be able to parent her children in the foreseeable future. Wells believed T.T. showed signs of having cyclical bipolar disorder, borderline personality disorder and paranoid traits which interfered with her ability to accept the Division's assistance.
Dr. Frank Dyer testified for the Division as an expert on parenting and bonding. Dr. Dyer opined that because of T.T.'s "continuing evasiveness, defensiveness, emotional brittleness, and lack of insight," and because she "bend[s] reality to serve her own needs", she lacked adequate parenting skills and had not improved since the prior trial. Dr. Dyer refused to conduct a bonding evaluation with T.T. because T.T. insisted on recording the session. Dr. Dyer also opined that Carrie's behavior had improved since she was at the foster home. Although he believed Carrie would suffer some parental loss, he believed she would suffer more harm from being reunited with T.T. than being adopted by her foster family. Further, Dr. Dyer found Penny, at her age, would not suffer from enduring harm from termination of T.T.'s parental rights. He stated that his opinion would not change even if T.T. had adequate housing.
After Dr. Dyer's testimony was finished, T.T. moved for an involuntary dismissal, given that Dr. Dyer did not perform a bonding evaluation between her and Penny. The court denied this motion, finding that a bonding evaluation is not always necessary. The court noted that Dr. Dyer presumed there was a strong connection between T.T. and Carrie, crediting the concerns that T.T. previously posted recordings on the Internet.
Dr. Alice Nadelman testified as the children's expert and her findings were consistent with those of Drs. Wells and Dyer. Dr. Nadelman evaluated T.T. multiple times in the previous three years in March 2011, June 2011, and November 2013. According to Dr. Nadelman, T.T. believed her children were wrongfully removed and she had no responsibility for the removals. Dr. Nadelman believed T.T. could be nurturing and relate to her children well in the supervised visitation setting. However, she was concerned by T.T's inability to admit there was a problem with her family and with her mental health. According to Dr. Nadelman, Carrie improved since she saw her in 2011, because "she's finally in a family that loves her, wants her and is committed to her, and accepts her for who she is." Dr. Nadelman also found Penny was attached to her foster parents.
Dr. Nadelman concluded that T.T. did not have the capacity to provide a safe and stable home, and the situation was unlikely to change in the foreseeable future. Although she agreed with other experts that T.T. was not psychotic, she did not agree that meant she was capable of parenting.
Dr. Marc Seglin, T.T.'s treating psychologist, testified that T.T. established a rapport with him, and engaged in "a therapeutic dialogue which is destined to enhance her self-regulation through a system of identifying goals, analyzing her situation and herself in terms of the relationship to those goals." However, Dr. Seglin cautioned that the therapy had to move slowly to limit "collateral pain and hurt." He was "guardedly optimistic" that T.T. would succeed in treatment and admitted he had not yet achieved all his goals with her. Dr. Seglin thought that by the end of the calendar year, T.T. would have stable housing and a clear vocational path.
Dr. Jennifer Marano testified as one of T.T.'s psychological experts. According to Dr. Marano, T.T. was generally cooperative with her, and did not exhibit any abnormal behavior. Dr. Marano said T.T. presented as having borderline personality disorder, but found no signs of psychosis. According to Dr. Marano, borderline personality disorder did not preclude someone from being able to parent. Although it might impact one's parenting abilities, such an impact could be mitigated through counseling.
Dr. Steven Simring testified as T.T.'s expert in psychiatry. Dr. Simring evaluated T.T. on three occasions, after being appointed by the trial court. He questioned whether Dr. Dyer's findings were accurate, noting that T.T. did not trust Dr. Dyer and may have been less cooperative because she believed he had reached a conclusion before completing his analysis. According to Dr. Simring, many of the expert determinations offered against T.T. were speculative. Dr. Simring testified that T.T. was in a vicious circle where the Division removed her children, arguing that T.T. was depressed, leading her to become more depressed because her children were taken away.
Carrie Iglesias, a visitation supervisor, and Maryaleny Leonardo, a social worker with the Emergency Assistance Department, also testified on behalf of T.T.
The trial court entered a judgment of guardianship on May 20, 2014. This appeal followed.
On appeal, T.T. argues that the judgment of guardianship should be reversed because the Division failed to prove all four prongs of the N.J.S.A. 30:4C-15.1(a) "best interests of the child" test by clear and convincing evidence. T.T. argues that the trial court's determination is not supported by the record given the favorable expert testimony she presented at trial. She also argues the Division failed to make reasonable efforts to reunite her with Penny and Carrie and that termination of her parental rights would not do more harm than good to the children. We disagree.
A parent's right to enjoy a relationship with his or her child is fundamental and constitutionally protected. In re Adoption of Children by L.A.S., 134 N.J. 127, 132 (1993). However, "[p]arental rights . . . are not absolute. The constitutional protection surrounding family rights is tempered 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) (citation omitted).
Under N.J.S.A. 30:4C-15.1(a), the Division can initiate a petition to terminate parental rights on the basis that such termination is in the "best interests of the child" if the following standards are met:
(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;"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.
(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 [D]ivision 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.
"Appellate review of a trial court's decision to terminate parental rights is limited, and the trial court's factual findings should not be disturbed unless they are so wholly unsupportable as to result in a denial of justice." In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002) (internal quotation marks and citations omitted). We are obliged to accord deference to the trial court's credibility determinations based upon the judge's opportunity to observe and hear the witnesses. Cesare v. Cesare, 154 N.J. 394, 412 (1998).
A.
To satisfy the first prong of the best interests standard, the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Generally, "proofs in termination cases focus on past abuse and neglect and on the likelihood of it continuing." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J. Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)). Moreover, in guardianship and adoption cases, the child's need for permanency and stability is central. K.H.O., supra, 161 N.J. at 357. Additionally, injury to the child's growth and development should not be the result of "economic deprivation or lack of resources but to a fundamental lack of the most precious of all resources, the attention and concern of a caring family." N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 613 (1986).
After fully reviewing the evidence presented, the trial judge considered whether reunification between T.T. and Carrie and Penny may harm each child in the foreseeable future. Here, each court found that "proof of prong one has previously been found as to [Carrie]. Carrie has already suffered harm because of [T.T.'s] inability to parent safely." As to Penny, the trial judge noted, "[she] has been in foster care since birth. [T.T.] has continued to behave in the same destructive manner that led to her other children being removed from her care . . . [Penny] has suffered as a result of [T.T.]'s mental health issues and her unwillingness or inability to address the issues which led to [Penny] being placed in foster care." We are satisfied that the record fully supports the trial judge's findings.
B.
The second prong of the test relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.
The trial judge considered the expert testimony of six experts and found that "all, with perhaps the exception of the treating physician, agreed that [T.T.] has longstanding and continuing mental health problems which have caused her inability to care for her children," and that the Division had demonstrated that T.T. would not be able to parent in the foreseeable future. We are satisfied that the record contains clear and convincing evidence establishing prong two.
C.
The third prong requires the Division to make reasonable efforts to provide services in order to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1(a)(3). Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J. Super. at 620. This factor requires the Division to make diligent efforts to reunite the family. K.H.O., supra, 161 N.J. at 354. A parent's failure to become a caretaker for her children is not determinative of whether the third prong has been met because the reasonableness of the Division's efforts is not measured by their success. In re Guardianship of DMH, 161 N.J. 365, 393 (1999).
The trial court found reasonable efforts, outlining a history of therapeutic services, visits, evaluations, paternity tests, offers of housing assistance and other services. The trial judge's findings as to prong three are established by clear and convincing evidence in the record.
D.
The fourth prong, that termination of parental rights will not do more harm than good, "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will be best served by completely terminating the child's relationship with that parent." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 108 (2008). If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 608.
That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235, 263-64 (2005). When parents expose a child "to continuing harm . . . and [are] unable to remediate the danger to the child, [who] has bonded with the foster parents . . . provid[ing] a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.
In establishing this prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation" of the child's relationship with the biological and foster parents. J.C., supra, 129 N.J. at 19. "The question . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with her natural parents than from the permanent disruption of her relationship with her foster parents." K.H.O., supra, 161 N.J. at 355.
In addition, the Division must prove that the parent's actions or inaction contributed to the forming of the bond between the child and the foster parents, and that "the harm caused to the child from severing that bond rests at the feet of the parent." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J. Super. 56, 80 (App. Div. 2010). A child's need for permanency and stability is an important consideration. N.J. Div. Youth & Family Servs. v. M.M., 189 N.J. 261, 281 (2007).
The trial court properly determined that there was sufficient evidence to satisfy prong four. The trial judge considered evidence as to each of the two children individually, finding by clear and convincing evidence that each was flourishing in their foster homes and T.T. had not made sufficient progress to safely parent either child or ameliorate harm to them if placed in her care. We discern no reason to disturb that determination.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION