Opinion
DOCKET NO. A-0492-12T3
02-03-2014
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. A.A.P., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF K.R.P., Minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, K.R.P. (Karen A. Lodeserto, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Accurso.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FG-04-144-12.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Jennifer A. Lochel, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor, K.R.P. (Karen A. Lodeserto, Designated Counsel, on the brief). PER CURIAM
Defendant A.A.P. appeals from the Family Part's August 28, 2012 judgment terminating his parental rights to his daughter K.R.P. (Kate). He contends that the Division failed to establish the third prong of the best interests standard by clear and convincing evidence. Specifically, A.A.P. argues the Division failed to prove that it provided him with appropriate services to effect reunification. He also claims the Division did not properly conduct permanency planning for Kate and the trial judge failed to consider alternatives to terminating his parental rights. We disagree and affirm.
We use a fictitious name to protect the child's privacy.
A.A.P. suffers from paranoid schizophrenia diagnosed in 1993 when he was nineteen years old. A.A.P. is now thirty-nine He suffers from delusions and has a long history of regular hospitalizations as a result of his condition. He was involuntarily committed for over two months during the pendency of the matter in the trial court. The trial judge, at A.A.P.'s counsel's request, appointed a guardian ad litem for him prior to trial. Kate's Law Guardian supported termination.
A.A.P.'s diagnosis was undisputed at trial as his counsel acknowledged that A.A.P. suffered from paranoid schizophrenia and conceded that A.A.P.'s condition was not at issue. Appellate counsel asserts the record contains "conflicting diagnoses" which the Division failed to address. This contention was not raised at trial, and its implications are suggested only with reference to diagnostic manuals and medical texts. Accordingly, we do not consider it. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) ("our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest," quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1977)).
A.A.P. and his wife, L.R., Kate's mother, came to the attention of the Division on February 24, 2011, the day after Kate was born, when the Division received a referral from Virtua Hospital expressing concerns about the parents' mental health issues. Hospital staff reported that both parents were or had been receiving services from Steininger Behavioral Care Services (Steininger), A.A.P. for schizophrenia and L.R. for bipolar disorder.
L.R. made an identified surrender of Kate to her resource parent and is not involved in this appeal.
Steininger became Twin Oaks Community Services on January 1, 2012.
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A Division caseworker met with hospital staff and with A.A.P. and L.R. the following day. Hospital staff "expressed great concern" about A.A.P.'s mental health, reporting he "made repeated delusional comments." The worker similarly observed A.A.P. making tangential, delusional comments. A.A.P. reported to the worker that he had been diagnosed with schizophrenia and took various medications. He stated he met with a doctor at South Jersey Behavioral Health Resources (SJBHR) every three months regarding his medication and reported a history of hospitalization for mental health issues. SJBHR subsequently confirmed A.A.P.'s psychiatric history. The Division placed a hospital hold on Kate pending further investigation.
On March 2, the Division applied for and was granted care, custody, and supervision of Kate. After being advised that the Division had rejected placing Kate with L.R.'s mother because the Division had previously substantiated abuse and neglect charges against her, the court ordered the Division to assess L.R.'s sister. She was ruled out later that day based on her earlier Division involvement and criminal record. On March 2, Kate was discharged from the hospital to the care of a resource parent, P.B., with whom she remained through trial.
The Division referred A.A.P. for a psychiatric evaluation, conducted by Edward Baruch, M.D., for the purpose of assessing what services might be appropriate. Baruch recommended A.A.P. receive a different medication via monthly injection to help ensure his compliance with medication. Baruch concluded A.A.P.'s psychosis made him "unable to care for his child at this time." He recommended supervised visitation and intensive outpatient treatment with medication monitoring.
The Division also referred A.A.P. for a psychological evaluation, conducted by Miriam Kazansky Horn, Ph.D. Horn recommended supervised visitation but cautioned that A.A.P. "should not be left unsupervised with [Kate] for more than a few minutes." She was of the view that A.A.P. would benefit from a partial hospitalization program and parenting classes.
A.A.P. began supervised visitation with Kate under the auspices of Robin's Nest in April 2011. A.A.P. refused Robin's Nest family therapy to address parenting issues. Visitation was suspended in early May after L.R. assaulted, and A.A.P. verbally threatened, the visitation supervisor. The judge ordered supervised visitation to resume in the Division's offices. That same month, the Division referred A.A.P. for a domestic violence assessment based on reported altercations with L.R. The evaluator found A.A.P. "inappropriate" for a family violence prevention program because A.A.P. did not understand its purpose.
In June 2011, the Division referred A.A.P. for combined therapy and parenting sessions at Delaware Valley Psychological Services. A.A.P. attended four sessions but was discharged in late July after therapists determined he needed a higher level of care. The Division then directed A.A.P. to SJBHR, where he had received treatment before the Division's involvement.
The Division continued to explore possible relative placements during this period. L.R. provided the names of two aunts, both of whom were ruled out because they were unwilling to care for Kate. One of A.A.P.'s aunts called the Division in fall 2011 for information on the case but likewise declined to be Kate's caretaker.
In November 2011, A.A.P. sought to enroll in the Steininger partial care program. During his intake appointment, A.A.P. reported receiving services from SJBHR and acknowledged he had "a history of struggling with medication compliance." From November 29, 2011, to February 13, 2012, A.A.P. was hospitalized at the Camden County Health Services Center ("Lakeland") psychiatric facility. Lakeland records indicate he was involuntarily committed because his mental condition had deteriorated after he reportedly stopped taking medications. His Lakeland case manager informed the Division that A.A.P. was receiving medication monitoring and individual and group therapy. The case manager also told the Division that A.A.P. would be enrolled in a partial care program before his discharge from Lakeland. After A.A.P. was discharged from Lakeland in February 2012, he told the Division caseworker he was taking part in the SJBHR partial care program.
In February 2012, Kate's resource parent, P.B., expressed a desire to adopt Kate. The court approved the Division's plan of termination of parental rights followed by adoption and the Division filed its complaint for guardianship.
In May 2012, clinical psychologist Linda Jeffrey, Ph.D., conducted a psychological evaluation of A.A.P. on behalf of the Division. Dr. Jeffrey noted that some of A.A.P.'s written answers to questions made no sense, and that when she interviewed A.A.P., he "expressed a number of bizarre and hostile statements." For example, he described "people coming from another planet to take other people's children," wondered if police might "[k]ill me over my daughter," and said he was "going to put sin on man and woman." On the Personality Assessment Inventory (PAI), A.A.P. scored in the ninety-ninth percentile for paranoia and in the ninety-seventh percentile for schizophrenia. Dr. Jeffrey diagnosed A.A.P. with Axis I "schizophrenia, paranoid type," "adjustment disorder," and "rule out delusional disorder."
Dr. Jeffrey also conducted a bonding evaluation of Kate with A.A.P. and L.R. Dr. Jeffrey concluded that Kate was "insecurely attached" to A.A.P., and that severing the parental relationship would be "unlikely to cause [Kate] serious and enduring harm." She recommended against placing Kate with A.A.P., finding him unprepared "to provide a minimal level of safe and stable parenting." Dr. Jeffrey conducted a bonding evaluation of Kate with her resource parent, P.B., on May 10, 2012. Dr. Jeffrey concluded that Kate shared a secure attachment with P.B. and recommended that she remain in her care.
In July 2012, just weeks before trial, A.A.P. recommended his aunt, V.C., as caretaker for Kate. He also recommended an uncle, V.P. According to a Division worker, V.C. first stated she was not interested in caring for Kate but called back within a few days to express interest. The Division sent her a "best interests letter," stating that because Kate had been in her current home for a year and was securely attached to her resource parent, the Division would not move her. The Division sent a similar letter to V.P. and did not further investigate either.
At the guardianship trial in August, A.A.P. acknowledged that he suffered from paranoid schizophrenia and was not able to parent Kate. The Division witnesses testified the Division had arranged for A.A.P. to receive psychological and psychiatric evaluations, individual therapy services, visitation, and a domestic violence assessment. In addition, they testified that the Division provided A.A.P. with bus passes and recommendations for housing, that Steininger also assisted A.A.P. with housing and transportation, and that Division workers kept tabs on A.A.P.'s participation in various treatment programs, including medication monitoring and partial care. A visitation supervisor from Robin's Nest testified for the Division as well.
Clinical psychologist Dr. Jeffrey testified Kate would be at risk if placed in A.A.P.'s care due to his "chronic mental illness and . . . history of noncompliance with medication leading to multiple hospitalizations." She noted that this pattern posed an obstacle to providing Kate with "stability and attuned care." She further opined that a child living with an "actively delusional parent" grows up in a "very frightening" environment due to the parent's variability, and that a delusional parent may unintentionally harm his or her child. She concluded it was "highly unlikely" A.A.P. could meet Kate's emotional and developmental needs. In response to a question as to how Kate might be affected by removal from her resource parent and placement with a relative she did not know, Dr. Jeffrey testified that "the severance of a secure attachment is associated with a probability of serious and enduring harm" for a child Kate's age.
A.A.P.'s aunt, V.C., testified on his behalf. She acknowledged she had never met Kate and only became aware of the guardianship proceedings when A.A.P. called her in July 2012 to ask if she could adopt Kate. She testified she was financially able to care for Kate and had raised two children of her own. When asked if she told the Division she was interested in adopting Kate, V.C. replied that she had informed the Division worker she "would like to explore the option." She said the Division "tried to discourage [her]," and that although she asked to meet Kate, the Division never followed through on arranging a visit. V.C. testified her siblings would help look after the child and averred it would be best for the child "to be with his [sic] biological family." She acknowledged she did not have regular contact with A.A.P.
At the close of the proofs, the trial judge issued a decision on the record concluding that the Division had carried its burden by clear and convincing evidence on all four prongs of the best interests test. With regard to the third-prong requirement that the Division make "reasonable efforts to provide services 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), the judge credited the testimony of the Division caseworkers and noted that the Division provided A.A.P. with visitation, psychological and psychiatric evaluations, a domestic violence assessment, and bus passes, and had referred A.A.P. for parenting classes and individual therapy from which A.A.P. was discharged because he was "not ready" for such services.
The judge rejected A.A.P.'s contention that the Division failed to make reasonable efforts to find relative resource placements. He found Division workers "made reasonable efforts to contact . . . every relative that was made known to them." He noted that L.R.'s two relatives were ruled out due to their unwillingness to look after Kate, as was A.A.P.'s aunt who contacted the Division in late 2011. The judge noted that V.C. and V.P. had not been brought to the Division's attention until shortly before trial.
Relying on N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 582 (App. Div. 2011), the judge held that a parent cannot "wait until the eve of the guardianship trial to identify a relative who is willing to adopt." The judge noted that V.C. had never met Kate and only became aware of Kate's situation when A.A.P. asked her about adoption. He found V.C.'s statement that she wished "to explore the options" regarding Kate, rather than stating she wished to adopt, significant. The judge expressed uncertainty as to whether V.C. was truly willing to adopt, and concluded that even if she were, "it is too late, that the child cannot afford to wait sixty days, or ninety days on the hope or possibility that [V.C.] might be found qualified to care for this child." The judge found further that even were V.C. qualified, "the serious harm to this child by wresting her from her foster parent could not be overcome by the loving care of a relative." The judge entered an order terminating A.A.P.'s parental rights on August 28, 2012. This appeal followed.
A.A.P. challenges only the trial court's findings on the third prong, that 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." N.J.S.A. 30:4C-15.1(a)(3).
Acknowledging his long-standing psychiatric disorder, A.A.P. contends that the Division merely went "through the motions," providing only "garden-variety, cookie-cutter services" instead of ones tailored to his needs. The Division counters that it "made diligent efforts to provide [A.A.P.] with extensive mental health treatment services," that A.A.P. failed to comply with medications and therapy, and there are no other services it can offer to help A.A.P. address his psychiatric disability sufficiently to parent Kate.
"The reasonableness of the Division's efforts depends on the facts in each case." N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 435 (App. Div. 2001) (citing In re Guardianship of D.M.H., 161 N.J. 365, 390 (1999), certif. denied, 171 N.J. 44 (2002)). A.A.P. concedes he suffers from psychosis and delusions and that his level of functioning is thus seriously impaired. His mental health problems were of long-standing duration when the family came to the Division's attention, and he had already been engaged in programs at Steininger and SJBHR. The Division arranged psychiatric and psychological evaluations, and in light of these evaluations, worked to assist A.A.P. with new services and to confirm his re-engagement with SJBHR.
Whether service referrals came from the Division, from A.A.P.'s pre-established relationships with Steininger and SJBHR, or from Lakeland after his involuntary commitment there, the Division consistently sought to confirm A.A.P.'s receipt of appropriate services. The Division's clinical psychologist, Dr. Jeffrey, testified that the in-patient hospitalization and partial care program in which A.A.P. participated during the Division's involvement with him "are the standard of treatment for an individual who has paranoid schizophrenia and mood issues." Accordingly, we agree with the trial judge that the Division's referral of A.A.P. to psychiatric and psychological service providers with whom he had a pre-existing relationship, combined with its consistent efforts to verify his participation in these services, was not unreasonable and satisfied its burden under N.J.S.A. 30:4C-15.1(a)(3). A.G., supra, 344 N.J. Super. at 434-35, 437.
We also reject A.A.P.'s argument that the Division did not properly conduct permanency planning for Kate and that the trial judge failed to consider alternatives to terminating his parental rights. There is a statutory preference for the temporary placement of children with suitable relatives pending the ultimate determination of the children's future. N.J.S.A. 30:4C-12.1(a). Although it is the Division's goal "to place, whenever possible, children with relatives," N.J. Div. of Youth & Family Servs. v. K.F., 353 N.J. Super. 623, 636 (App. Div. 2002), "there is no presumption in favor of placement with relatives." K.L.W. supra, 419 N.J. Super. at 580. "[U]ltimately the question is what was in [the child's] best interest based upon the circumstances as they existed at the time of the final hearing." N.J. Div. of Youth & Family Servs. v. M.F., 357 N.J. Super. 515, 527 (App. Div. 2003).
The Division contacted or investigated at least five biological relatives in its attempt to place Kate before it filed its guardianship complaint in February 2012. These included L.R.'s mother and sister, two other maternal relatives identified by L.R., and one of A.A.P.'s aunts who called to ask about the case in fall 2011. The Division only learned of V.C. weeks before the guardianship trial after Kate had lived with her resource parent for over a year.
The trial judge concluded that the Division adequately explored relative resources; that it was unclear whether V.C. wanted to adopt; and that placement with V.C. and separation from the resource mother, P.B., "would cause [Kate] serious harm which could not be overcome by even the loving care of a relative." There is substantial credible evidence in the record for these findings. Specifically as to V.C., there is ample support for the judge's finding that the Division acted in Kate's best interests in ruling out V.C., given V.C.'s ambiguous statements regarding adoption, her lack of relationship with Kate, and Dr. Jeffrey's expert testimony on the effects of removing a child of Kate's age from a foster parent with whom she is strongly bonded. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004).
Accordingly, we affirm the judge's finding that the Division established the third prong of the best interests standard by clear and convincing evidence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION