Opinion
DOCKET NO. A-1784-11T1
05-17-2013
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES, Plaintiff-Respondent, v. B.M.T., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF S.R.M., A.S.T., JR., T.M.T., and A.B.T., Minors.
Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (David Valentin, Assistant Deputy Public Defender, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Maven and Carroll.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FG-03-30-10.
Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nora P. Pearce, Deputy Attorney General, on the brief).
Joseph E. Krakora, Public Defender, Law Guardian, attorney for the minors (David Valentin, Assistant Deputy Public Defender, on the brief). PER CURIAM
Defendant B.M.T. appeals from an order of the Family Part terminating her parental rights to her four children, Sarah, age eleven; Andrew, age five; Thomas, age three; and Avery, age two. We affirm.
We use the fictitious names used by defendant in her brief.
A default was entered against L.S., the biological father of Sarah, who was never involved in her life. A.T. is the father of Andrew, Thomas and Avery and his parental rights to these children were also terminated. Neither man appeals from the termination of his parental rights.
Defendant is the thirty-five year old mother of these four children, three of whom have been fathered by thirty-three year old A.T., to whom defendant is married. A.T. has a lengthy criminal record dating back to 1994. In 2000, at age twenty-one, he was convicted of sexually assaulting two underage girls. As a result of those convictions, he is subject to community supervision for life, categorized as a Tier II sex offender under Megan's Law. Because of his sex offender status, and having failed a "living with children" evaluation, by law, A.T. is not allowed to reside with children.
At the time of the guardianship trial in October 2011, A.T. was in jail for violating various terms of his parole. Despite the legal restriction, it was nevertheless defendant's stated plan to reside with A.T. and co-parent with him once he is released from jail.
Although defendant had a history of involvement with social services in Missouri where she resided before her move with Sarah to New Jersey in 2004 or 2005, defendant's first involvement with the Division of Youth and Family Services (Division) occurred in August 2005 when the Division found a complaint of neglect unsubstantiated but nevertheless opened a case for monitoring and services. Another complaint concerning Sarah on May 10, 2006 was unfounded but the Division determined the family was in need of assistance. By June 2006, defendant and Sarah had been living in unstable, transitory housing for much of the past year and at that time were living in a motel where they had been for about a month. A visit to the motel on August 23, 2006 revealed that defendant still had not obtained Sarah's immunizations or registered her for school, or complied with a drug evaluation. A return visit the next day found Sarah alone with A.T., who, it was learned, was caring for Sarah sometimes. The Division removed Sarah on an emergent basis because A.T. spent nights with defendant and Sarah, and had unsupervised contact with the child.
A reorganization of the Department of Children and Families under L. 2012, c. 16, effective June 29, 2012, changed the name of the Division of Youth and Family Services (DYFS), to the Division of Child Protection and Permanency (DCPP).
Sarah was evaluated by psychologist Rhona Brown in January 2007. Sarah was nearly six years old at the time and did not know her full name, her age, or colors; although toilet trained, she often urinated on the floor or in a bowl, and she "appeared unexposed to eating utensils." Moreover, her play with dolls demonstrated recurrent themes of disruption, abandonment, and regression. She was "traumatized," "significantly disturbed," and at "increasingly high risk for elevated levels of behavioral and emotional maladaption unless meaningful interventions [were] made." Brown recommended an ongoing, long-term therapeutic relationship, a stable permanent home and family where the caretakers were provided support in managing and understanding Sarah's behaviors, and a special education program.
Sarah was reunited with defendant on February 21, 2007, while defendant was still living in the motel. The case remained open, however, with the Division providing monitoring and services, including parenting skills and substance abuse counseling, and assistance with Sarah's medical, educational, and psychological needs.
On April 5, 2007, defendant gave birth to Andrew and shortly thereafter A.T. was sentenced to jail for failure to notify police of a change of address. By September 2007, defendant obtained transitional housing for women and children, only to be evicted in March or April 2008 because a male friend kept visiting and burglarizing the neighborhood.
A.T. was released from jail in March 2008 and on April 3, 2008, the Division received a referral from A.T.'s parole officer that A.T. was residing with defendant and her two children in a motel. The Division substantiated the neglect allegations, finding defendant allowed A.T. to reside in the home. Also, defendant tested positive for marijuana, and Sarah had missed forty-one days of school as of April 11, 2008.
In April 2008, defendant was placed in a women and children's shelter in Trenton. There, she tested positive for marijuana, and she was non-compliant with many services; her focus appeared to be on spending time with A.T., and she was not mindful of her children's needs.
On June 1, 2008, the Division received a referral stating that shelter staff had discovered A.T. sleeping in the room with the family. A.T. left at the staff's request. Thereafter, defendant left the shelter with the children at 1:45 a.m., in the rain, stating that she was going to meet A.T.
As of June 10, 2008, defendant was unemployed and homeless, sleeping with her children outdoors, next to the Trenton Area Soup Kitchen. Defendant had refused an offer to go to a shelter. The Division investigated, found the allegations of neglect substantiated, and removed the two children on an emergent basis.
On June 12, 2008, the Division filed a verified complaint for custody, and was granted care, custody, and supervision of Sarah and Andrew, because defendant was homeless and unable to provide a safe environment for the children. Defendant later waived a fact-finding hearing and admitted that she had not provided appropriate housing for her children.
Sarah and Andrew were placed in a foster home together. Sarah exhibited behavioral issues in the home, breaking things and harming Andrew. Sarah was again evaluated by Dr. Brown in September 2008 and found to be in "significant pain and continue[d] to present as a child . . . experiencing the avoidance, hyperarousal and emotional intrusiveness generally associated with complex and chronic trauma." Brown recommended a long-term therapeutic relationship, a stable permanent home with support for the caregivers, and close monitoring of Sarah's academic functioning. She also recommended that Sarah remain in a placement with her brother, but urged reexamination of their current placement and "strongly" questioned the appropriateness of returning Sarah and her brother to defendant's care so long as defendant remained with A.T. The Division arranged for Sarah to receive therapy.
Defendant remained transient and only began regular visitation with her two children on August 13, 2008. Even then, defendant missed some visits, causing further distress to Sarah, and together with A.T., argued with the Division caseworker in front of the children.
Meanwhile, in September 2008, A.T. was arrested for a parole violation and his parole officer advised the Division that, because of A.T.'s numerous parole violations, the officer would not refer him for a new "living with children" evaluation. Moreover, A.T. would not be eligible for a new evaluation until he was compliant with the terms of his community supervision for life.
On February 14, 2009, defendant married A.T., notwithstanding prior warnings from the Division that the marriage could delay reunification because A.T. was not permitted to live with the children. At the time, defendant was pregnant again, with A.T. identified as the father.
On June 26, 2009, defendant gave birth to Thomas. On July 6, 2009, the Division received a referral, reporting concern over Thomas's welfare. The Division investigated, confirmed neglect and substantial risk of sexual injury based upon defendant continuing to reside with A.T., who was legally prohibited from living with children, and removed Thomas on an emergent basis. On July 8, 2009, the Division filed an amended verified complaint for custody and was granted care, custody, and supervision of Thomas because defendant was living with A.T., and A.T. was not permitted to reside with children due to his sex offender status. A.T. was scheduled to begin sex offender treatment on July 9, 2009, but still was not eligible for a "living with children" evaluation. In January 2010, A.T. was discharged from sex offender treatment due to noncompliance. He failed to attend some sessions, and during sessions he attended he did not participate.
A.T. once again attended sex offender treatment in May 2010.
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By January 2010, all three children were in the same foster home. Sarah continued to receive therapy, but her behavioral issues continued and there were concerns about the resource parent's ability and willingness to cope with her needs.
On January 7, 2010, the court entered a permanency order with respect to Sarah and Andrew, concluding that termination of parental rights followed by adoption was the appropriate plan. The Division filed the guardianship complaint on April 26, 2010.
In the meantime, Sarah was evaluated by Dr. Deborah Mulgrew, who diagnosed Sarah with adjustment disorder with disturbances in conduct and mood regulation, and learning disabilities NOS; she could not rule out ADHD or posttraumatic stress disorder. She recommended therapy to address Sarah's adjustment disorder, meaning her "emotion dysregulation due to the multiple traumas and inconsistencies that she has experienced in her young life."
In July 2010, the children were moved to a new foster home, where Sarah continued to have behavioral issues, especially around visits with defendant and A.T. Her negative behaviors escalated such that in October 2010, the Division placed her in a group home (Gentle Harbor), at the recommendation of psychologists, including Brown.
Defendant's fourth child, Avery, was born on August 23, 2010. Around the same time, defendant failed to make any progress in parenting skills classes (parent-child interaction therapy) she had been attending with Sarah, and was deemed non-compliant with treatment. Defendant stated that she was not interested in using a "DYFS therapist," and would find her own through Medicaid, but by December 2010, she still had not found one.
After a permanency hearing held with respect to Thomas, in which the court concluded that the goal of termination of parental rights followed by adoption was appropriate, the Division added Thomas to the guardianship proceeding by complaint filed October 13, 2010. On November 4, 2010, the agency filed a second amended verified complaint for custody of Avery. The court granted the Division care, custody, and supervision of the infant. She was placed in a different foster home than her brothers, Andrew and Thomas, and her foster mother expressed interest in adoption. Avery thrived in this placement.
Andrew and Thomas remained in the same foster home together. Andrew developed some behavioral and speech/language issues, for which he received intervention. And Sarah remained in a group home due to her unresolved behavioral issues, where she remained at time of trial in October 2011. The plan was to return Sarah to the foster home with her brothers, with future adoption of all three children, and for Avery to be adopted by her foster parents. Should that plan be unattainable, however, the Division would pursue select home adoption for Sarah. All foster parents agreed to maintain contact between the siblings.
In February 2011, A.T.'s parole officer advised the Division that A.T. would not be permitted to reside with defendant because defendant had assaulted a parole officer. He was relocated to the Trenton Rescue Mission, and he continued to be prohibited from residing with children.
In July 2011, A.T. was discharged from a sex offender treatment group for lack of progress, lack of participation, and negative behavior and attitude. This was the third such discharge, with the first two occurring in 2009 and January 2011. As a result, he was arrested for violating the terms of his parole.
At the time of trial, A.T. had been incarcerated since July 2011. He remained ineligible for a "living with children" evaluation due to his non-compliance with the terms of his parole. He could be evaluated by a psychologist, but it would be at the sole discretion of parole whether to allow him to live with his children.
A.T. was evaluated on April 2, 2009 by psychologist James Loving, who found that A.T.'s antisocial personality style would contribute to his risk for ongoing lifestyle instability, including transient housing and future arrests and incarcerations. Dr. Loving further found that A.T. has a poor understanding of children's basic needs, and lacked motivation to change his circumstances.
On February 23, 2010, A.T. was evaluated by psychologist Frank Schwoeri, who agreed with Loving's assessment. A.T.'s test results showed an extremely low IQ, consistent with mild mental retardation, and also revealed deficiencies in social judgment. Dr. Schwoeri believed that should A.T. overcome the legal barriers to his residing with minor children, he would still need significant support in parenting his children.
Dr. Linda Jeffrey, a psychologist, evaluated A.T. on July 6, 2010 and diagnosed him with bipolar disorder, delusional (paranoid) disorder, paranoid personality disorder, borderline intellectual functioning, and a learning disability NOS; she could not rule out mild mental retardation. She concluded that he suffered from "serious mental health and adjustment problems that significantly impair[ed] his ability to provide a minimal level of safe parenting," and she did not recommend the placement of children in his care.
Jeffrey updated her evaluation of A.T. on September 23, 2011. At the time, A.T. was incarcerated. Jeffrey found that A.T.'s "judgment appeared severely impaired and he displayed a lack of insight about coping skills and personal responsibility."
She diagnosed him with bipolar disorder (mixed, with psychotic features), delusional (paranoid) disorder, adjustment disorder with anxiety, paranoid personality disorder, antisocial personality disorder, avoidant personality disorder with depressive and negativistic and masochistic personality traits and dependent personality features, schizotypal personality disorder with borderline personality traits, learning disorder NOS, and borderline intellectual functioning. She could not rule out posttraumatic stress disorder.
She found that, over the course of three psychological evaluations, spanning a little more than a year, "the severity of [A.T.]'s mental health problems increased." And she concluded that his mental health problems rendered him unable to provide a minimal level of safe parenting for his children.
Dr. Jeffrey maintained the same opinion at trial which was formed even without taking into account A.T.'s Megan's Law status. Moreover, she believed A.T. had a poor prognosis in part based on his demonstrated reluctance to comply with mandated counseling.
Defendant was evaluated on March 10, 2009 by Dr. Brown, who diagnosed defendant with delusional disorder (paranoid), generalized anxiety disorder, and narcissistic personality disorder, and she could not rule out bipolar disorder. Summarizing her findings, she stated:
Overall, [defendant] presents as an unstable, labile woman who puts her own needs before those of her children. She is able to rationalize her own motives and behaviors and to construe her own needs as identical with those of her children. She
easily dismisses data that contradicts what she wants, and she does not appear to appreciate dangers or difficulties experienced by her children. Although she expresses longing for her family's reunification, this clinician has significant reservations regarding her current parenting abilities.
Brown reiterated her diagnoses at trial, further opining that defendant could not safely parent her children. Because defendant was "so focused on herself, so un-empathetic, so unable to even be aware of her children's interests as differing from her own[,] . . . it would put her children at risk." Furthermore, Brown did not believe defendant was likely to respond well to therapy due to her narcissism.
Dr. Jeffrey evaluated defendant on July 6, 2010 and found that defendant displayed little insight into her circumstances or what it would take to regain custody of her children, minimizing and denying the significance of A.T.'s Megan's Law status and convictions. Jeffrey diagnosed defendant with a mood disorder NOS, and histrionic personality disorder with narcissistic traits and paranoid personality features, and she could not rule out bipolar disorder, posttraumatic stress disorder, and attention-deficit/hyperactivity disorder NOS. She concluded that defendant suffered from
significant adjustment problems, including education and employment problems, and significant mental health problems,
including personality disorder and emotional regulation difficulties, that seriously impair her ability to provide a minimal level of safe parenting. [Defendant] has reportedly displayed pronounced difficulties . . . with rule-governed behavior and the respect of authority. She is likely to place priority upon dependent attention-seeking and to be self-absorbed. She is unlikely to be attuned to the needs of her children or to be able to provide a safe, reliable environment for her children. She is unlikely to be able to role model for her children the development and maintenance of safe, reciprocal relationships. Her reported history of noncompliance with court-ordered services does not reflect respect for authority, personal insight or parenting judgment. She has deficits in adaptive perception and impulse control, self-efficacy, problems-solving and coping skills.
As a result, Jeffrey believed the children would be at risk of harm in defendant's care, and she did not recommend that course of action.
Jeffrey evaluated defendant again on February 10, 2011, and reached essentially the same diagnoses and conclusions as she had in July 2010:
The results of this psychological evaluation indicate that [defendant] has profoundly serious personality and emotional problems that very significantly decrease her ability to provide parenting for her children to a minimal level of safe parenting. She has an extremely deficient understanding of rule governed behavior. She is very ill-prepared to teach her children appropriate respect for legal authorities or fundamental principles of reciprocal, safe relationshipsThus, Jeffrey did not recommend returning any of defendant's four children to her care.
and appropriate, emotionally mature behavior and self reliance. She is highly likely to act in an egocentric, self absorbed manner with little consideration for the consequences of her actions upon other people, particularly her children. She lacks empathy and attunement. She is likely to display poor self-regulation in mood, anger, and social relations. She is likely to display poor judgment and irresponsibility . . . . [Defendant] is unlikely to be attuned to the needs of her children at even a minimal level or to be able to establish a stable, safe environment for parenting. Her children are likely to be at risk for harm in her care.
In an updated psychological evaluation dated August 25, 2011, Dr. Jeffrey reported that defendant expressed no concern about leaving children alone with A.T., notwithstanding the legal prohibitions against it, which Jeffrey found "highly problematic," and defendant "identified no areas of behavioral difficulty in [Sarah]," notwithstanding Sarah's documented emotional and behavioral issues. Dr. Jeffrey noted that over the thirteen-month period of her evaluations, defendant
did not display improvement in adjustment (e.g. job training, employment, interpersonal social skills) emotional maturity or mood regulation (e.g., the range, intensity, lability, and appropriateness of emotional response), social cognition (e.g., healthy ways of perceiving and interpreting self, other people and events, the assumption of
personal responsibility for the consequences of her decision making for her children), decreased grandiosity, increased impulse control, lessened control issues in relationships and increased understanding and acceptance of the necessity to comply with rule-governed behavior.
She concluded that defendant had
very serious mental health problems in the areas of adjustment, thought, personality and mood dysregulation and/or disorder and is not prepared to provide empathetic, attuned, reliable, responsible safe parenting. Her grandiosity, paranoia and control issues are likely to impair her parental awareness and acceptance of her children as unique individuals, to differentiate her children's needs and feelings from her own, and to acknowledge and support each child as a separate person. She is not prepared to provide appropriate limit setting, role modeling of coping techniques, to serve as a suitable model for identification, to exercise an appropriate amount of control over the children, to enforce rules and demands consistently, or to serve as an appropriate model for handling stress and anxiety. [Her] mental health problems decrease her parenting capacity in the areas of social cognitive skills, perspective taking, problem-solving, health self-efficacy and accurate/adaptive perceptions.
Jeffrey opined that defendant "is not prepared to provide a minimal level of safe parenting for" her children, and that the children would likely be at risk for harm if placed in defendant's care. Thus, she would not recommend returning the children to defendant's care.
At trial, Jeffrey reiterated her opinion that defendant's mental health issues prevented her from functioning as a parent to her children, and that the children could not be safely returned to defendant's care. Children with special needs, in particular, would be especially at risk in defendant's care. And defendant's co-parenting with A.T. would not be a safe option for the children.
According to Jeffrey, defendant's problems were "significant" and "deep-seeded" [sic] and required long-term therapeutic intervention. However, defendant's personality traits and history of non-compliance made it unlikely that her mental health would improve. In this regard, Jeffrey stated that defendant did not view her problems as problems; instead, "[s]he view[ed] the rest of us as having problems," so she perceived no reason to change.
Dr. Jeffrey also performed bonding evaluations between defendant and A.T. and their children. As a result of the evaluation performed on July 7, 2010, Jeffrey concluded that Sarah and Andrew had "insecure attachments" to defendant and A.T. And, while severance of that insecure attachment was likely to cause some harm, it would be unlikely to be serious and enduring, and the insecure attachment in and of itself was likely to cause harm. She further concluded that Sarah and Andrew needed permanency, and since neither defendant nor A.T. were prepared to provide a minimal level of safe parenting, she recommended that the children remain in foster care.
On February 10, 2011, Jeffrey performed a bonding evaluation for defendant and A.T., and children Sarah and Avery. She concluded that defendant and A.T. provided "negative role modeling . . . concerning rule-governed behavior, respect for authority, respect for others, and interpersonal skills" that was likely to be harmful to Sarah. Moreover, Sarah's identification with defendant was "likely to be highly problematic in the development of interpersonal relations, emotional maturity and the development of safe and reciprocal relationships."
Jeffrey went on to conclude, as she had in the past, that Sarah had insecure attachments to defendant and A.T., which in and of themselves were psychologically harmful to her. And she stated that severing the relationship between defendant and Sarah was "unlikely to cause serious and enduring harm to [Sarah] particularly if she is given successful remediation services." By contrast, placing Sarah in defendant and A.T.'s care was "highly likely to cause her serious and enduring harm given their diminished capacity to provide a minimal level of safe parenting."
With respect to Avery, Jeffrey concluded that attachment could not be assessed because she was less than six months old. However, the features of defendant and A.T. that placed Sarah at risk for harm were highly likely to be harmful to Avery as she developed. Therefore, Jeffrey did not recommend placing Avery in defendant and A.T.'s care.
On May 2, 2011, Jeffrey performed a bonding evaluation for defendant and A.T., and children Andrew and Thomas. She concluded that both boys were "familiar with" defendant and A.T., and appeared to have affectionate relationships with them. At the same time, the boys "did not use either parent as a secure base," and neither child related to defendant or A.T. as their psychological parent. They did not display a secure attachment to either defendant or A.T., and severance of the relationship was unlikely to cause the children serious and enduring harm. In this regard, defendant and A.T. had parenting skill deficits that would place the children at risk of harm if they were placed in their care, so Jeffrey did not recommend that course of action.
At trial, Jeffrey testified that it was very important that the children have permanency. She opined that the children had insecure attachments to their biological parents, and that severance of those relationships would not cause the children serious and enduring harm.
On August 24, 2010, Jeffrey performed a bonding evaluation for Sarah, Andrew, and Thomas and their foster parents. At that time, the children had been residing in the foster home about one month. Jeffrey found that "[t]here was a level of engagement and interaction" between the foster parents and the children that she had not seen in their prior placement, and she believed the children were making "an appropriate and positive transition" to the new foster home. She expressed concern, however, that Sarah would find herself in a "conflict of loyalties due to her affectionate tie to her mother and her enjoyment of living with the foster parents," and she recommended counseling.
On April 9, 2011, Jeffrey performed another bonding evaluation for Sarah, Andrew, and Thomas and their foster parents, although Sarah was not living with the foster parents at the time, so Jeffrey's conclusions were limited to Andrew and Thomas. Jeffrey found that the foster parents "established order and organization for the children's interactions and activities," and "set reasonable behavioral limits, enforced them and reinforced prosocial behavior." Moreover, the children and the foster parents interacted in a "warm and affectionate" manner.
Jeffrey concluded that Andrew and Thomas were securely attached to their foster parents, and that severance of that attachment was likely to place the children at risk for serious and enduring harm. Therefore, she recommended that Andrew and Thomas remain in their current placement.
On May 21, 2011, Jeffrey performed a bonding evaluation for Avery, then age eight months, and her foster parents. She found that "[t]he foster parents displayed attuned, loving and appropriate care for [Avery]" and their professional training as occupational therapists prepared them well for monitoring Avery's development. She further found that the foster parents "displayed detailed knowledge of [Avery's] developmental needs and the interventions required to facilitate her growth and development," and that Avery "displayed a preference for the foster parents." The foster parents expressed love for Avery, and a desire to adopt her and maintain contact with her siblings. Jeffrey concluded that there was a foundation for a secure attachment between Avery and her foster parents, with Avery displaying "the features of secure attachment typical for a[n] infant of her age." And she recommended that Avery remain in the care of her foster parents.
At trial, Jeffrey explained that the children needed permanency, a stable environment with stable relationships, in order to develop normally. She reiterated her opinion that severing the secure attachment between Andrew and Thomas and their foster parents would place the children at risk for serious and enduring harm. She further opined that Avery was securely attached to her foster parents and should not be returned to defendant and A.T.
With respect to Sarah, Jeffrey opined that it would not be beneficial for Sarah to remain in a group situation forever; she also needed permanency. However, even if Sarah were unable to return to the foster home with her brothers, it would be unsafe to return Sarah to defendant's care. Brown testified similarly, stating that Sarah needed stability, permanence and structure, an understanding that her needs were separate from her parents' needs, and long-term therapeutic intervention to process everything that has happened to her, and that defendant was unable to provide these things; Sarah would not be safe and secure in defendant's care, regardless of the presence or absence of A.T.
At the close of evidence, the Family Part judge found that the Division proved the four-prong test of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and therefore terminated the parental rights of defendant and A.T. to their four children. As to the first prong, the court found "there is really no issue with respect to that." As to Sarah and Andrew, "it was the lack of a safe and stable home;" as to Thomas, "it was because [defendant] ignored [A.T.'s] Megan's Law status and allowed him to stay with them;" and as to Avery "the hidden child, the plan was apparently to give her to others." "Further, based on the uncontroverted expert findings, each child would continue to be placed at risk if in the care of either parent"; indeed, A.T. was precluded by law from residing with children.
As to the second prong, although defendant expressed a willingness to eliminate the harm to the children, the experts agreed that she "is unable to do so." The court found defendant's testimony that she was able to adequately care for the children "simply not credible." As discussed at length by Dr. Brown and Jeffrey, defendant "has an unhealthy sense of entitlement and believes she knows best." Moreover,
[h]er diagnosis is chronic . . . [A]lthough many services were made available to her, she refuses to accept the correctness of her ongoing issues. She has lied in this case, even in court under oath, and simply will say and do whatever she feels is in her best interest. This is certainly not in the best interests of any of her children.
To state that [Sarah] only needs to return home and she will be okay is very far off the mark. [Defendant] always and likely always will put herself first based on the expert opinions.
Each of her four children need a safe and stable home, and [defendant] is unable to provide that. Her stated goal of raising all or even any of her children is an unrealistic one. These children need permanency and without further delay.
. . . .
Stability and permanency will occur for the younger three children. And, as to [Sarah], it is hoped that her treatment at Gentle Harbor will progress soon to a point where she can resume living with [Andrew] and [Thomas]. As to them, they're living together and are securely bonded to that family. As to [Avery], she is securely bonded to her foster family.
As to the third prong, the court found that alternatives to termination of parental rights had been considered. Further, the Division had "made more than reasonable efforts to provide services" to assist defendant in correcting the circumstances that led to the children being placed outside her home. However, defendant
has rarely stayed with the recommended services to a successful completion. Her psychological issues being chronic will not likely ever be successfully resolved. Their very nature makes her reluctant to willingly change.
She only does what she wants to do and no more. This is what prevents her from being an appropriate parent. But, of course, she does not accept these diagnoses. When she says she will cooperate, the Court does not find that credible based on her history.
As to the fourth prong, the court noted expert testimony that termination of parental rights would not cause the children any serious or enduring emotional harm. And as to each child, the court found that termination would not do more harm than good. The children would be at risk if returned to defendant's care because defendant has demonstrated that she places her own interests ahead of her children's, and that behavior would continue.
On appeal, defendant argues that the Division did not prove the four-prong test of N.J.S.A. 30:4C-15.1(a), by clear and convincing evidence. We reject this argument as without merit.
N.J.S.A. 30:4C-15.1(a) authorizes the termination of parental rights if the Division clearly and convincingly establishes:
(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.
We review whether a family court decision terminating parental rights is "supported by adequate, substantial and credible evidence on the record." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278-79 (2007) (internal quotation marks omitted). "Only when the trial court's conclusions are so clearly mistaken or wide of the mark should an appellate court intervene and make its own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (internal quotation marks omitted). In this regard, we "accord deference to family court factfinding" because of "the family courts' special jurisdiction and expertise in family matters" and the fact that they are "in the best position to judge the credibility of the witnesses." Cesare v. Cesare, 154 N.J. 394, 413-14 (1998).
Governed by this standard, we find the trial court's termination decision supported by sufficient credible evidence in the record and, therefore, affirm substantially for the reasons stated in Judge Schlosser's oral decision of November 4, 2011. We add only the following comments.
Here, the record supports the court's conclusion that all four prongs of the statutory test had been proven by clear and convincing evidence. First, the children's safety, health or development has been and will continue to be endangered by the parental relationship.
When Sarah was first removed from defendant's care in 2006 because defendant was residing with A.T., the five-year old child did not know her full name, her age, or colors; she was not fully toilet trained and she "seemed unexposed to eating utensils." She was "traumatized" and "significantly disturbed." When Sarah and Andrew were removed from defendant's care in June 2008, defendant was unemployed and homeless, having been removed from a shelter because she allowed A.T. to stay with her. She was unwilling to separate from A.T., notwithstanding that he was legally prohibited from residing with children. See, e.g., N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 449 (2012) ("a mother's relationship with her child's potentially dangerous father may be an appropriate consideration if that relationship poses a clear threat to the child. A parent has the obligation to protect a child from harms that can be inflicted by another parent.") (citations omitted); M.M., supra, 189 N.J. at 267, 281-82, 288-90 (one parent's destabilizing influence on the home must be considered when deciding whether to terminate parental rights of the other); N.J. Div. of Youth & Family Servs. v. A.G., 344 N.J. Super. 418, 431 (App. Div. 2001) (mental condition of co-parents relevant to termination of parental rights decision), certif. denied, 171 N.J. 44 (2002). Additional evidence of harm also existed in that Sarah had missed forty-one days of school as of April 11, 2008.
The second prong has been met because defendant is unwilling or unable to eliminate the harm to her children, and a delay in permanent placement will add to the harm. On the one hand, defendant has obtained stable housing, and she has participated in some of the Division's programs. On the other hand, she did not complete or benefit from the most significant assistance offered to her, psychological counseling and parenting classes, and experts agreed that due to her severe, untreated personality disorders, she remains unfit to parent. See, e.g., F.M., supra, 211 N.J. at 450-51 ("Mental illness, alone, does not disqualify a parent from raising a child. But it is a different matter if a parent refuses to treat his [or her] mental illness, the mental illness poses a real threat to a child, and the other parent . . . is unwilling or incapable of following court orders to shield [his or] her child from that danger."); A.G., supra, 344 N.J. Super. at 436-40 (mental disorders rendered defendants unable to parent); In re Guardianship of R.G. & F., 155 N.J. Super. 186, 194-95 (App. Div. 1977) (same); N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super. 551, 585-86 (App. Div. 2010) (parents' psychological deficits posed danger to children); N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 94 (App. Div. 2008) ("Of course, a psychiatric disability can render a parent incapable of caring for his or her children," but no such evidence presented).
Furthermore, defendant remains chronically unemployed and extremely impoverished. And she remains unwilling to separate from A.T. even if it is in the best interests of her children. F.M., supra, 211 N.J. at 451-52 (mother's "unwavering commitment" to dangerous man satisfied prong two).
Indeed, defendant has never expressed a willingness to comply with the mandate that she live separately from A.T. and not allow him unsupervised access to the children. Defendant only began living separately from A.T in February 2011, more than two-and-a-half years after Sarah and Andrew were removed from her care, and a mere eight months before the guardianship trial. And, significantly, the separation was involuntary; A.T. was ordered by parole to leave defendant's home after defendant had become violent with his parole officer.
Third, the Division made reasonable efforts to help defendant and correct the circumstances that led to the children's placement outside the home. Most significantly, it provided defendant with supervised visitation with the children, transportation assistance to visitation and services, enrollment in parenting classes, and psychological counseling. However, for most of the case history, defendant was non-compliant with most of the services offered. To the extent she commenced some services, such as therapy and parenting classes, she was ultimately discharged for failure to participate. Contrary to defendant's argument, the Division attempted to assist defendant in completing the services offered, providing her with transportation, which she sometimes rejected, and coordinating parenting skills classes with visitations with the children.
In addition, the court considered alternatives to the termination of parental rights. The evidence reflected that the Division investigated alternative placements for the children but ruled them out for legitimate reasons.
Finally, termination of parental rights will not do more harm than good. "[T]o satisfy the fourth prong, the State should offer testimony of a 'well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation' of the child's relationship with both the natural parents and the foster parents." M.M., supra, 189 N.J. at 281 (In re Guardianship of J.C., 129 N.J. 1, 19 (1992)). "A child's need for permanency is an important consideration under the fourth prong." Ibid.
Here, Andrew and Thomas have a healthy, secure bond with their foster parents, and the basis for such a bond exists between Avery and her foster parents. See id. at 267, 285. By contrast, no healthy parent-child bond exists between defendant and the children.
Sarah presents the most difficult situation, as defendant rightly notes. See, e.g., E.P., supra, 196 N.J. at 100, 106-11 (prong four not established with respect to termination of mother's parental rights to her almost thirteen-year-old daughter where daughter was psychologically fragile and had "bounced around from one foster home to another," there was no permanent placement in sight, and girl's "only enduring emotional bond [was] with her mother," and, since termination had been ordered, mother appeared to have improved her life circumstances). Sarah clearly loves defendant and defendant loves her. Nevertheless, defendant remains incapable of providing a safe and stable home environment for Sarah, and there is no reasonable possibility of successful reunification in the future. Moreover, the chronic instability in Sarah's life has already caused her significant harm. Under these circumstances, the Division's plan to stabilize Sarah at Gentle Harbor, then return her to the foster home with her brothers, followed by adoption, is the most appropriate plan. The foster parents have been supportive of Sarah throughout. Should they ultimately be unable or unwilling to adopt, however, the Division's plan to seek another permanent placement is also preferable to continued instability.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION