Opinion
DOCKET NO. A-5346-14T1
06-03-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Z.K., Defendant-Appellant, and D.G.F. and P.C.H., Defendants. IN THE MATTER OF THE GUARDIANSHIP OF C.G.K., E.F.K. and A.E.S.K., minors.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tobey Palan, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-09-15. Joseph E. Krakora, Public Defender, attorney for appellant (Mark E. Kleiman, Designated Counsel, on the briefs). Robert Lougy, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Tobey Palan, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minors (Lisa M. Black, Designated Counsel, on the brief). PER CURIAM
After a three-day guardianship trial in 2015, the Family Part terminated the parental rights of defendant Z.K. to three of her biological children, C.G.K. (fictitiously, "Cindy"), E.F.K. (fictitiously, "Eddie"), and A.E.S.K. (fictitiously, "Andy"). Defendant appeals, arguing that the evidence was inadequate to support the trial court's finding that all four statutory criteria for termination under N.J.S.A. 30:4C-15.1(a) were satisfied. Defendant further contends that the trial court's decision is unsound because it improperly relied on unsubstantiated allegations of abuse and certain hearsay statements that were not admissible in evidence. We affirm.
The children's respective biological fathers have surrendered their own parental rights. --------
Defendant has an extensive history with the Division of Child Protection and Permanency ("the Division"), formerly known as the Division of Youth and Family Services, concerning these three children and their siblings. Cindy was born in August 2004, Eddie was born in January 2007, and Andy was born in July 2009. In addition, defendant gave birth to two other sons, J.B.P., who was born in July 1996 and who died in a car accident in 2014, and D.N.L., who was born in August 2000 and as to whom defendant surrendered her parental rights in 2014 to enable his adoption by resource parents. A sixth child, a daughter M.E.K., was born in November 2013, and defendant surrendered her rights to that youngest child in February 2015.
Between November 1997 and June 2013, defendant and the children were the subject of approximately thirty-three referrals to the Division. The referrals included reported incidents in which defendant was believed to have slapped a child, pulled a child by the hair, withdrawn her children from school for a period of time, locked a child in the bathroom overnight, and other incidents of suspected child abuse or neglect. Although these incidents were not administratively substantiated, they provide a backdrop for the events that followed and the Division's concerns about the family. Defendant took part in a number of abusive relationships with men, to whom the children were exposed. She allegedly home-schooled them, but the children did not meet their educational goals. Defendant did not maintain stable housing or consistent employment.
The Division removed the children in November 2013 when defendant went to the hospital to deliver M.E.K. and both she and the newborn tested positive for amphetamines. Defendant reported at that time that she was homeless. Cindy was initially placed with a neighbor of her paternal aunt and thereafter with her paternal grandparents in December 2013. Cindy has been taken care of competently by her grandparents who wish to adopt her. Eddie and Andy were placed in foster care. According to the appellate briefs, the boys' current foster parents wish to adopt them as well. Meanwhile, defendant has continued to struggle with a host of psychological and other problems, despite receiving numerous services from the Division.
During the guardianship trial, defendant stipulated that she neglected the dental needs of all three children, resulting in excessive and serious tooth decay. Defendant reluctantly submitted to a court-ordered psychological evaluation, in which she denied being responsible for the conditions that led to the children's removal. The Division's evaluator concluded that the children could not be "safely reunited with their mother," and that the children's attachments to her were ambivalent and insecure. An expert who testified for the Law Guardian reached similar conclusions.
Defendant did not testify at trial but did present an expert, Dr. Katz, who disagreed to some extent with the opinions of the experts for the Division and the Law Guardian. Dr. Katz found that the boys had an attachment with defendant and that it would be traumatic for them if her parental rights were terminated. As to Cindy, Dr. Katz found that she had a "dual attachment" to defendant and her grandparents, so that the trauma from termination would be less for her than it would be for her brothers.
Upon sifting through the proofs, the trial judge issued a forty-four-page written opinion concluding that the Division had met its burden of proving the criteria for termination by clear and convincing evidence. The judge noted defendant's behavioral and personality problems and her repeated difficulties in serving as a competent caretaker for the children. The judge specifically found Dr. Katz's testimony to be less credible than that of the opposing experts, finding that he "lacked a proper understanding of critical facts." The judge noted that none of the three testifying experts had recommended reunification of defendant with the children at this point. The judge also noted the desire of Cindy's grandparents to adopt her and the credible expert testimony that both of the boys were "adoptable" despite their then-current lack of a pre-adoptive placement. On the whole, the judge was satisfied that termination of defendant's parental rights was clearly in the best interests of all three children.
In reviewing a decision to terminate a parent's rights after a guardianship trial, "the trial court's factual findings should be upheld when supported by adequate, substantial, and credible evidence." N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014). "Concomitantly, reviewing courts should defer to the trial court's credibility determinations." Ibid. "Moreover, by virtue of its specific jurisdiction, the Family Part 'possess[es] special expertise in the field of domestic relations' and thus 'appellate courts should accord deference to [F]amily [Part] factfinding.'" Id. at 553 (alterations in original) (quoting Cesare v. Cesare, 154 N.J. 394, 412-13 (1998)). We are mindful, however, that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Id. at 552-53 (quoting Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995)).
Applying these well-settled principles, we are satisfied that there is substantial credible evidence in the record to support the trial court's decision. The proofs amply show that defendant, as reflected by her stipulation of dental neglect and otherwise, has caused harm to the children and endangered their ongoing safety, health, or development. N.J.S.A. 30:4C-15.1(a)(1). The proofs also reflect that defendant has been unwilling or unable to eliminate that harm and provide the children with a stable home, and that further delay will add to that harm. N.J.S.A. 30:4C-15.1(a)(2). Third, the Division has made reasonable efforts to provide services to defendant, which included parenting classes, psychological therapy, domestic violence counseling, medication monitoring, and a host of other services. N.J.S.A. 30:4C-15.1(a)(3). The trial court reasonably rejected Dr. Katz's recommendation that defendant should receive what is known as DBT therapy for her personality issues, particularly in light of the expert's concession that DBT was not the only form of treatment and the opposing experts, who were found more credible than Dr. Katz, disagreed with that recommendation. Fourth and finally, the judge reasonably determined from the evidence as a whole that termination of defendant's parental rights would not do the children more harm than good. N.J.S.A. 30:4C-15.1(a)(4).
Defendant contends that the trial judge erred in relying in part upon adverse information in the Division's records that should have been expunged after three years. This argument misreads the applicable expungement regulations, N.J.A.C. 10:129-8.3(a)(2), which only calls for expungement of an unfounded report if three years have passed "since a service case was closed or [the] provision of services has been concluded." Because defendant and the children have been receiving services from the Division annually since 2006, the records were not subject to expungement under the three-year provision.
Defendant further contends that the trial court's opinion rested on inadmissible hearsay statements embedded in the Division's records that were offered into evidence, including numerous unsubstantiated reports of abuse or neglect. We reject this contention for several reasons.
First, the Division's records were generally admissible under N.J.S.A. 9:6-8.46(a)(3) and Rule 5:12-4(d) as being created and maintained in the Division's regular course of business. See also N.J.R.E. 803(c)(6) (the hearsay exception for business records). Second, the statements made by defendant herself to Division staff memorialized in these records are admissible against her as statements by a party-opponent. See N.J.R.E. 803(b)(1). Although we acknowledge that statements of the children themselves contained in those records are inadmissible hearsay absent proof of corroboration under N.J.S.A. 9:6-8.46(a)(4), the alleged lack of such corroboration here does not invalidate the trial court's decision because there is sufficient evidence to support the trial court's findings even if the children's hearsay assertions are ignored. The negative opinions of the credible experts, defendant's own admission to a form of neglect, and the first-hand observations of the testifying caseworkers amply provide a foundation for the judge's conclusions.
We have considered each of defendant's remaining arguments and deem them to lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION